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By Michael Rose
Sept. 26 — Siemens AG subsidiary Dresser-Rand Corp. didn’t institute an unlawful lockout of workers in New York State in 2007, according to a federal appeals court's reversal of a National Labor Relations Board ruling ( Dresser-Rand Co. v. NLRB , 2016 BL 314752, 5th Cir., No. 15-60474, 9/23/16 ).
The Sept. 23 decision brings a likely end to nine years of litigation surrounding the lockout, which took place at Dresser-Rand’s Painted Post, N.Y., plant. The NLRB had twice decided that the lockout of workers represented by the Industrial Division of the Communications Workers of America (IUE-CWA) was unlawful, making the Sept. 23 ruling an even bigger victory for the employer.
The NLRB general counsel failed to show that Dresser-Rand’s conduct after the lockout was motivated by anti-union animus, the U.S. Court of Appeals for the Fifth Circuit said. Judge E. Grady Jolly wrote the opinion, joined by Judges Edith Brown Clement and Priscilla R. Owen.
All members of the three-judge panel were appointed by Republicans. By contrast, the two NLRB decisions were written by Democratic appointees to the board.
The board originally ruled that the lockout was unlawful in August 2012. That decision ultimately was deemed invalidated by the U.S. Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550, 199 LRRM 3685 (2014), which found certain appointments of board members to be unconstitutional.
In June 2015, a separate NLRB panel ruled the same way.
In the latest decision, the appeals court said “substantial evidence does not support the finding that the post-lockout conduct was motivated by animus and the Board has not offered any further evidence” to show otherwise.
Aside from the lockout, the court also reversed several other unfair labor practice findings that the board previously said Dresser-Rand had committed, including giving hiring preference to “crossovers,” or union-represented workers who crossed the picket line to return to work during a strike that preceded the lockout.
The strike lasted more than four months, while the lockout lasted several days.
“The crossovers were more similar to temporarily-laid-off replacement workers” when being rehired than to workers filling a job vacancy that should have been set aside for returning strikers, the court said.
“Here, the crossovers occupied a job position (as crossovers) for a period of months before they were locked out for only a few days,” it said. “Moreover, the crossovers were told, before being locked out, 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.”
That finding was contrary to the NLRB’s finding that Dresser-Rand’s discrimination after the lockout in favor of workers who crossed the picket line showed that the lockout violated federal labor law because of antiunion animus.
A spokesman for Dresser-Rand didn’t respond to Bloomberg BNA’s request for comment Sept. 26, nor did officials with the IUE-CWA. An attorney representing the union wasn’t able to provide a comment.
To contact the reporter on this story: Michael Rose in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
Text of the decision is at http://www.bloomberglaw.com/public/document/DresserRand_Co_v_NLRB_No_1560474_2016_BL_314752_5th_Cir_Sept_23_2.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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