NLRB Divides on Union's Choice of Words; Majority Sees Bid to Bargain, Not Protest

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By Lawrence E. Dubé

May 22 — A union official's angry response to a utility company's plan to change an employee benefit was a request for bargaining, not merely a protest, the National Labor Relations Board held 2-1 on May 21.

The International Brotherhood of Electrical Workers local president immediately said “no you don't,” threatened to file an unfair labor practice charge with NLRB, and vowed to visit the corporation's headquarters when an official told him the company intended to change a service recognition policy.

NLRB Chairman Mark Gaston Pearce and Member Kent Y. Hirozawa said the union official's comments “constituted a bargaining request,” but the employer proceeded to implement the change without negotiating with the union. The board ordered the employer to rescind its action and compensate employees who lost service awards.

Member Philip A. Miscimarra dissented. He said the union officer “registered disagreement or protest,” but the union failed to give any clear indication it wanted to bargain about the program change.

Service Awards Program Offered Gifts

According to the decision and the findings of an administrative law judge, Ohio Edison is a wholly owned subsidiary of FirstEnergy Generation Corp., which is headquartered in Akron, Ohio.

IBEW-represented employees at FirstEnergy's power plant in Shippingport, Pa., were covered for a number of years by a service recognition program that allowed employees reaching specified employment anniversaries to receive service awards from a third-party vendor's catalog.

Before September 2012, an employee with five years of employment received a $35 award. Awards of increasing value were given every five years up to 50 years of service.

Announcement of Change Drew Reaction, Charge

On Sept. 18, 2012, the board said, the company's labor relations director Eileen McNamara telephoned Local 272 President Herman Marshman and advised him that the company was changing its program to give employees awards for every 10 years of service, rather than five. The change was to become effective in January 2013.

The board said Marshman responded “[O]h no you don’t! … Now you know I have to file a board charge,” and stated that he would have “to come to Akron [the Respondent’s headquarters] for this one.”

McNamara testified she believed Marshman was serious about complaining to the NLRB and FirstEnergy. Local 272 filed an unfair labor practice charge on Oct. 30. An NLRB regional director issued a complaint alleging that the change violated Section 8(a)(5) of the National Labor Relations Act. An ALJ agreed, and the board affirmed the ruling.

Employer Understood Union Made Request

FirstEnergy argued it never received a sufficiently specific request for bargaining to support the ALJ's Section 8(a)(5) finding, but Pearce and Hirozawa disagreed. Marshman requested bargaining about other changes McNamara described in her phone call, and the board said there was no evidence showing his demand did not encompass the change to the award program.

The board majority said the company reasonably understood Marshman's comments as a bargaining request, but unilaterally implemented its changes even after the union filed its unfair labor practice charge contesting the change in benefits.

Filing a charge did not “convert” Marshman's comments into a bargaining request, the board said, but the charge did “clarify and provide context” to the union official's action.

Finding the union requested bargaining before the employer's unilateral change, the board ordered FirstEnergy to bargain with the union, restore the five-year award interval, and make whole employees who missed awards due to the employer's change.

Dissent Says Protest Didn't Serve as Request

Miscimarra, dissenting, said the NLRB has repeatedly held that to support an unfair labor practice finding a union must request bargaining.

“[E]ven strenuous objections or protests are not sufficient under Section 8(a)(5) to constitute requests for bargaining,” he wrote.

Asserting the majority allowed Local 272's unfair labor practice charge to serve “as an alternative to requesting bargaining,” Miscimarra said: “That is not the way Congress intended the Act to work.”

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9wrjwe.