Union’s ‘Oh No You Don’t!’ Protest Not a Demand for Bargaining

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By Lawrence E. Dubé

Threatening to file an unfair labor practice charge against an employer is not the same as demanding an employer bargain with a union, the U.S. Court of Appeals for the Sixth Circuit held, reversing an earlier NLRB decision ( Ohio Edison Co. v. NLRB , 2017 BL 40749, 6th Cir., No. 15-1783, 2/10/17 ).

The ruling serves as a warning that negotiators may raise the roof with protests and threats, but they need to be specific about formal demands for collective bargaining.

The National Labor Relations Board found a union president’s angry remarks informed FirstEnergy Generation Corp. that the union wanted to negotiate about changes in a company program, but the court rejected that view.

Electrical Workers Local 272 “expressed disapproval, to be sure,” but it never made a clear demand for negotiations with the employer, Judge Raymond M. Kethledge said.

Awards Program Change Drew Union Protest

IBEW-represented employees at a FirstEnergy plant received service awards of up to $75 every five years during their employment with the company, which is a successor to Ohio Edison.

The company and union never bargained about the awards before September 2012, when a company official phoned Local 272 President Herman Marshman to announce the company planned to give awards every 10 years rather than five.

Marshman responded, “Oh no you don’t! ... Now you know I have to file a board charge,” and he did.

Divided NLRB Found Unfair Labor Practice

The NLRB ruled 2-1 that Marshman’s protest was a demand for bargaining. FirstEnergy unlawfully ignored the demand and violated its duty to bargain with the union by unilaterally changing the award program, the board held (362 N.L.R.B. No. 88, 203 LRRM 1289 (2015)).

The NLRB’s then-chairman Mark Gaston Pearce (D) and then-Member Kent Y. Hirozawa (D) said Marshman’s desire to negotiate about the awards was clear enough, and his filing the unfair labor practice charge made the union’s goal even clearer.

Then-Member Philip A. Miscimarra (R), now the board’s acting chairman, dissented. The union never made a clear bargaining demand, and merely filing a charge against the company didn’t excuse that failure, Miscimarra said.

Court Finds ‘Cryptic’ Comment Not a Demand

The Sixth Circuit said the employer had no duty to bargain about the awards because “Marshman’s comments were cryptic rather than clear.”

Finding the evidence didn’t support the NLRB’s unfair labor practice finding, the court denied enforcement of the board order.

Representatives of FirstEnergy and Local 272 did not respond to requests for comment on the decision.

Judges Danny J. Boggs and William H. Stafford joined in the opinion.

Nick A. Nykulak of Ross, Brittain & Schonberg Co. in Cleveland argued for FirstEnergy Generation Corp. NLRB attorney Barbara Sheehy and Justice Department attorney Benjamin M. Shultz in Washington argued for the board.

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

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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