United States: Pair Of NLRB ALJ Decisions Find Unions Violated NLRA

Last Updated: November 15 2017
Article by Mark Theodore

It is mid-November, and the Board is at a full complement, and even has a new General Counsel. While we haven't seen anything significant (or really, anything at all) come out of the newly constituted Board we know the new members are feverishly working on getting some decisions out. The full complement of the Board will last only a few more weeks and then Chairman Miscimarra will depart leaving four members divided along party lines.

Meanwhile, the Board's ALJ's continue to hear cases and issue decisions. This week we have a pair of ALJ decisions that show unions can and do sometimes get in trouble in with the NLRB. Both are fairly basic factual situations and illustrate the kinds of choices employees have to make with regard to their union representation.

Union's $20,000 Fine Against Member Of Sister Local An Illegal Attempt To Circumvent Collective Bargaining Agreement

In Operating Engineers, Local 150 (MacAllister Machinery Co., Inc.), ALJD, JD-89-17 (November 3, 2017), employees working at an employer that rented construction equipment were represented by union A at the employer's Lansing and Niles, Michigan locations. The employees represented by union A were subject to a collective bargaining agreement which contained a broad no-strike provision prohibiting a "strike, work stoppage,....sympathy strike, unfair labor practice strike. . .or any interference with operations."

Union B sought to represent employer's employees at its South Bend, Indiana location. The organizing efforts failed and the employees in South Bend initiated an unfair labor practice strike against the employer at its Indiana sites.

Unions A and B are separate locals of the same union.

Union A employees encountered picket lines as they sought to make deliveries at the Indiana locations. Among other activities engaged in by the strikers, they "followed the affected [union A] members on their Indiana assignments, tailgated them, requested their union cards, and chided them for not 'clearing in' [seeking authorization]" from union B. Although the Charging Party (a union A employee) sought clearance to cross the picket line he was repeatedly denied.

Union B fined each union A member who crossed the line $20,000. As one might expect, the fine caused the union A members to ask the employer to not send them to Indiana. This request was granted and the union A employees had their workload reduced resulting in a loss of pay and benefits.

Union A an B entered into an agreement to rescind the fines and resolve the charges, although this must have been cold comfort to the union members who had been fined because the agreement "indicated that future breaches would trigger additional charges and fines."

Charging Party, a union A represented employee, filed charges against union B, alleging that the fines and other activity was unlawful coercion of an employee in violation of Section 8(b)(1)(A) (which is the union counterpart to Section 8(a)(1)).

The ALJ did not hesitate to find a violation:

Under §8(b)(1)(A), a union cannot restrain or coerce employees in the exercise of their §7 rights. Although §8(b)(1)(A) does not impair the right of unions to set and enforce valid membership rules, these rights do not permit unions to penalize members, who comply with their labor contract's no-strike provisions. Mine Workers Local 1249 (National Grinding), 176 NLRB 628, 632 (1969). The Board has, accordingly, found that allowing unions to penalize members, who refused to violate no-strike provisions, encourages unions to abort their contractual pledges and creates labor instability; such action is, therefore, invalid. Teamsters Local 688 (Frito-Lay, Inc.), 345 NLRB 1150 (2005).

The ALJ found this violation occurred because although the discipline was issued by union B, and union A "played no part," the fines "amounted to an end-run" around the clear work stoppage language in union A's agreement.

The remedy ordered by the ALJ required, among other things, that union B make the employees whole for the reduction in hours they suffered as a result of the coercion.

The case is of interest because of the principles set forth that two unions can't collude to get around a collective bargaining agreement provision. What is unknown is whether any charges were filed against union A (which if not complicit certainly seemed to tacitly approve of union B's tactics by entering into a settlement agreement that kept the threat of fines in place).

The case does show the value of having a broad no-strike provision in an agreement as it makes clear the expectation of the workforce in relation to unrelated labor disputes.

Union Steward's Text Shows Discrimination Against Non-Member

In Machinists Lodge 61 (Cummins, Inc.), ALJD, JD-91-17 (November 8, 2017), the employer manufactures diesel engines at a plant in Memphis, Tennessee where the union represents the workforce. In the incident leading up to the NLRB charge, three maintenance mechanics were summoned to fix a power press at the facility and one mechanic broke his thumb when the press moved during the process. All three mechanics were fired for allegedly violating the company's lockout/tagout policy. Charging Party, one of the mechanics who had worked for the employer for almost 18 years, sought out the shop steward and filed a grievance. The union represented the Charging Party and other two employees in the grievance process. The employer informed the union that the Charging Party's grievance was denied. The union steward immediately informed the Charging Party via text message that his grievance had been denied. The Charging Party responded by asking what the next steps were in the process. The union steward replied, again by text, that since Charging Party was not a union member, the union would not arbitrate his case.

Tennessee is a right to work state and so there was no obligation by Charging Party to join the union or pay dues. Charging Party filed a charge alleging a violation of Section 8(b)(1)(A) for the union's failure to represent him. The ALJ, like his counterpart above, found a violation quickly:

Existing Board law is that a union violates Section 8(b)(1)(A) in refusing and failing to arbitrate a bargaining unit member's grievance because the unit member is not a member of the Union. Port Drum Company, 170 NLRB 555 (1968). I am bound by Board law even, where as here the record establishes that the fees and expenses incurred by the arbitrator shall be borne equally by the parties and the Union must assume all expenses associated with the preparation and presentation of its defense. . . Thus, the Union in this case is obligated to incur significant expenses on behalf of unit members who have not contributed a cent to the operation of the Union.

The ALJ rejected the union's defense that the steward played no role in the decision (probably because the steward was the one communicating with the Charging Party). The ALJ also rejected the notion that the union had determined the grievance was non-meritorious because "there is no documentary evidence" to support the contention. Also, because the ALJ seemed to find, based on the Charging Party's testimony, that the grievance did indeed have merit.

There is no duty for a union to take a case to arbitration. Unions oftentimes evaluate a case and decide there is no merit. In this case, the steward's communication of the reason why the union did not want to go forward made the assertion there was "no merit" to the case harder to believe.

This was an easy case because the law is clear. And, of course, it is yet another stark reminder that things we say electronically usually can be saved and come back to haunt us later on.

Pair Of NLRB ALJ Decisions Find Unions Violated NLRA

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