By Ronald Miller, J.D. An employer did not unlawfully lock out bargaining unit employees just days after a union made an unconditional offer to end a four-month strike, ruled the Fifth Circuit. Much of the employer’s post-lockout conduct did not violate the NLRA, and the conduct that did violate the Act was not motivated by animus, the appeals court found, and thus did not establish that the lockout was motivated by antiunion animus. Accordingly, the court granted in part and denied in part the employer’s petition to deny enforcement of an NLRB order; correspondingly, it denied in part and granted in part the NLRB’s cross-application for enforcement (Dresser-Rand Co. v. NLRB, September 23, 2016, Jolly, E.). Strike. After the parties failed to reach agreement on the renewal of a collective bargaining agreement, the union engaged in a four-month strike. Still, the parties failed to reach an agreement. During the strike, the employer attempted to continue production, initially by hiring temporary replacements and, later, hired permanent replacements. About a month into the strike, 13 of the strikers crossed the picket line and made an unconditional offer to return to work (crossovers). The parties continued to bargain during the strike. Recall procedure. Ultimately, the union called off the strike and made an unconditional offer to return to work without a contract. The employer rejected this offer and instituted a lockout. Six days into the lockout, the employer reversed course and allowed the union members to return to work. The parties agreed to negotiate a recall procedure. Without waiting for this negotiation, however, the employer informed the crossovers that they could return to work. Thereafter, the union was unresponsive to the employer’s attempt to negotiate a process for returning the strikers to work. Specifically, the employer informed the union that it would recall striking employees based on seniority and job performance. It sent the union the names of non-crossover strikers on the recall list, but heard neither agreement nor disagreement from the union. An employee whom the employer determined had engaged in picket line misconduct was not on the recall list. Unilateral changes. After the recall was implemented, the employer unilaterally changed its policy regarding paid lunch breaks for weekend overtime work. Several months after the strike ended, a recalled employee stated during a department meeting that "there were too many salaried workers and too many scabs for it to be safe to work." He was subsequently suspended without pay for "violating common decency or morality on company property" based on his use of the word "scab." Finally, after the employer recalled the last of the striking employees, it informed them that they had lost their accrued paid vacation because they had not worked at least 900 hours in the preceding 12 months. Antiunion motivation? The union filed various unfair labor practice charges. Finding that the lockout was motivated by antiunion animus based on the actions that the employer took after the lockout ended, the Board found the lockout unlawful. On appeal, the parties agreed that whether the lockout violated the Act was determined by the employer’s motivation for the lockout: "if the lockout was motivated by antiunion animus, it was illegal; if the lockout was not motivated by antiunion animus, it was permissible." Preferential recall. As an initial matter, the Board argued that the employer acted unlawfully by first recalling the crossovers before recalling full-term strikers, thereby retaliating against the full-term strikers for their union activity. The lockout applied to all employees, including the crossovers. Under such circumstances, the NLRB argued that once the crossovers were locked out, the positions they had filled during the strike were vacant and thus the employer had a duty to fill those positions without providing preference to the crossovers. Accordingly, the Fifth Circuit had to decide whether locking out crossovers created a job vacancy or whether it constituted a temporary layoff from the job. It determined that the crossovers were more similar to temporarily laid-off replacement workers. The crossovers occupied a job position for a period of months before they were locked out for only a few days, the court noted. Moreover, before being locked out, the crossovers were told that they would resume their then-current positions as soon as the lockout ended. Thus, recalling them first simply allowed them to return to the position they had been permanently performing. Therefore, the NLRB’s conclusion that the employer acted unlawfully by recalling the crossovers before recalling the current strikers was not supported by substantial evidence. Unilateral recall procedure. The Board next argued that the employer acted unlawfully by implementing a recall procedure without collaborating with the union about the details of that procedure. According to the Board, the employer did not bargain with the union but instead presented the union with a fait accompli method of recalling employees and then implemented that method without input from the union. Again, the appeals court concluded that the Board’s conclusion was not supported by substantial evidence. The record was plain that time was of the essence as the employer began the recall. It made its intentions clear to the union and kept the union informed at each step. For its part, the union agreed that the recall should begin as soon as possible and stated its position that the workers be recalled by seniority. Because the union had ample opportunity to make a counterproposal, the court found that the evidence did not reasonably suggest that the employer stated its terms as a fait accompli. Picket line misconduct. With respect to the employer’s refusal to recall an employee for alleged picket line misconduct, the parties disagreed about the seriousness of his conduct. The employee was arrested for disorderly conduct after he "pretended like he got hit by the [van bringing in workers]." An arrest did not establish as a matter of law that the discharge was proper, the court pointed out; nevertheless, it found that here, the employee’s conduct was clearly meant to intimidate or coerce non-strikers in the van and was egregious enough to compel police involvement. Moreover, by placing his body in front of the van, he could have injured himself and caused substantial disruption. Because his misconduct was "sufficiently serious to disqualify him for employment," the employer did not violate the NLRA by refusing to recall him. Denial of vacation benefits. Before the strike, the 2004 CBA established that any employee who worked at least 900 hours in a calendar year was entitled to minimum vacation with pay. The employer informed the last of the recalled striking employees that they had lost their accrued paid vacation because they had not worked at least 900 hours in the preceding 12 months. The appeals court agreed with the employer that because the new CBA went into effect before the end of the year, the 2004 agreement was no longer in effect. Accordingly, the employer did not act unlawfully by denying those employees paid vacation. Paid lunch breaks. The employer’s treatment of lunch breaks also did not violate the NLRA. The employer changed its policy of providing paid lunch breaks for weekend shifts of over seven hours. The parties agreed that paid lunch breaks were not required under the terms of the 2004 CBA and also were not required under the new agreement. Although the Board argued that the employer was bound by past practice and could not unilaterally change that practice, the appeals court agreed with the employer that whatever past practice had been grafted onto the 2004 CBA ended when that agreement expired and was replaced. Lockout. Finally, the Fifth Circuit concluded that the lockout itself was lawful. The Board argued that it could show animus by pointing to post-lockout conduct that was motivated by animus. However, substantial evidence did not support the finding that the post-lockout conduct was motivated by animus. Accordingly, substantial evidence did not support a finding that the lockout violated the NLRA.
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