Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...
May 11 — Reversing an administrative law judge, the National Labor Relations Board May 7 held that Kellogg Co.'s nine-month lockout of more than 200 workers violated the company's duty to bargain with the Bakery, Confectionery, Tobacco Workers and Grain Millers and discriminated against workers at a Memphis, Tenn., cereal plant.
NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Harry I. Johnson rejected Kellogg's claim the lockout was a lawful tactic in a labor dispute over local issues that were mandatory subjects of collective bargaining between the company and the union.
The board concluded that Kellogg violated the National Labor Relations Act by insisting to impasse on proposals that would have forced midterm changes in employee wages and benefits that already were established by a master agreement covering the Memphis plant and other Kellogg facilities.
The board ordered Kellogg to bargain with the union, offer reinstatement to any locked-out workers who have not returned to work, and make employees whole for any loss of pay or benefits resulting from the lockout.
Workers at Kellogg's Memphis plant, who are represented by BCTGM Local 252G, were locked out in October 2013 when negotiations on a new collective bargaining agreement stalled over the company's proposal to increase its use of lower-paid “casual” workers at the plant.
The Memphis facility is one of four Kellogg plants around the country covered by a master collective bargaining agreement that was last negotiated in 2012.
The master agreement was effective from 2012 to 2015, and was therefore in effect in 2013, when the company and union arrived at an impasse over the terms of a new local agreement for the Memphis plant.
The BCTGM and Local 252-G filed an unfair labor practice charge alleging that the company was engaged in unlawful bargaining and that the lockout violated the NLRA. The NLRB's general counsel issued a complaint against Kellogg, and the board sought a preliminary injunction under Section 10(j) of the act.
The U.S. District Court for the Western District of Tennessee granted the board's injunction request, finding that there was at least reasonable cause to believe that the employer's conduct violated the NLRA and finding that injunctive relief was just and proper. The court ordered Kellogg to offer reinstatement to the locked-out workers pending the NLRB's final resolution of the unfair labor practice charge.
In August 2014, shortly after the entry of the injunction, an NLRB ALJ issued a decision finding that Kellogg illegally denied the union access to some information, but he concluded that the parties reached an impasse over a mandatory bargaining subject and the lockout was lawful.
The board disagreed with the ALJ. Pearce and Hirozawa wrote that the ALJ “misperceived the impact” of the employer's proposals concerning the employment of casual workers. If adopted, the proposals would have allowed Kellogg to cease hiring regular employees and replace them with casuals, the board said.
The board said the master agreement was intended to ensure that the core of the Kellogg workforce would be permanent full-time employees receiving the pay and benefits the union negotiated for regular workers.
Finding that the company's proposals would have modified the provisions of the master agreement as it applied to new and returning employees, the board held that the company violated sections 8(a)(1) and 8(a)(5) of the NLRA by insisting that the union accept midterm modifications to the master agreement, and by locking out employees.
Stating that the act only permits use of lockout in support of an employer's legitimate bargaining position, the board concluded that Kellogg's improper bargaining also dictated a finding that the lockout was unlawful discrimination that violated Section 8(a)(3) of the NLRA.
Johnson wrote a concurring opinion that questioned some of the majority's analysis of the Kellogg proposals, but he agreed that adoption of the proposals would have effectively modified the master agreement.
To contact the reporter on this story: Lawrence E. Dubé in Washington at email@example.com
To contact the editor responsible for this story: Susan J. McGolrick at firstname.lastname@example.org
Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9wemdd.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)