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Time Warner Cable had the right to suspend four workers who attended a union “safety meeting” in the middle of a New York street, the National Labor Relations Board ruled.
The June 22 decision illustrates that although employees generally have a right to participate in union meetings and activities, they can lose the protection of the National Labor Relations Act merely by participating in union actions that are unlawful or unprotected by the federal labor law.
The four workers participated in a 90-minute demonstration that blocked city traffic and access to a Time Warner facility. An administrative law judge said the employees “simply stood in the crowd” and shouldn’t have received two-week suspensions, but NLRB Members Lauren McFerran (D) and Marvin E. Kaplan (R) said that by participating in an unprotected job action they exposed themselves to disciplinary action.
Member Mark Gaston Pearce (D) dissented. He said the four employees were off duty at the time of the street demonstration. The company also didn’t show that the no-strike clause in its agreement with International Brotherhood of Electrical Workers Local 3, was in effect at the time of the street demonstration, he said.
According to the board, a Local 3 official parked his car in the middle of a city street outside a Time Warner office in Brooklyn, N.Y., in April 2014. Six employees did the same with their cars, and about 50 employees gathered in the street while union representatives announced a “safety meeting,” handed out fliers, and addressed the crowd. The disruption delayed Time Warner service technicians from making customer calls for the balance of the day.
A labor arbitrator found that the “safety meeting” was a cover-up for a work stoppage that violated a no-strike pledge in Local 3’s contract with Time Warner.
Local 3 filed an unfair labor practice charge alleging the company illegally suspended Ralf Anderson, Frank Tsavaris, Diane Cabrera, and Azeam Ali for participating in the action.
The board didn’t accept the union’s argument that the four suspended employees were merely bystanders. McFerran and Kaplan said it was clear as soon as the employees arrived at the scene, the union had blocked traffic, with other workers compounding the problem by crowding around the cars. Anderson, Tsavaris, Cabrera, and Ali chose to join in, they said.
“What matters,” the board said, “is that the employees were not mere bystanders and that the activity for which they were disciplined—participation in a demonstration that, because it violated the no-strike clause, was never protected—was not itself protected concerted activity under the Act.”
Attorneys involved in the case didn’t immediately respond to requests for comment on the decision.
NLRB attorneys represented the board’s general counsel. Kauff McGuire & Margolis, LLP and in-house counsel represented Time Warner Cable New York City. Archer, Byington, Glennon & Levine, LLP in Melville, N.Y., represented Electrical Workers IBEW Local 3.
The case is Time Warner Cable New York City, LLC, 2018 BL 222382, 366 N.L.R.B. No. 116, 6/22/18
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