D.C. Circuit affirms NLRB

Michael P. Tremoglie Jul. 12, 2012, 6:00am

WASHINGTON (Legal Newsline) - The U.S Court of Appeals for the District of Columbia Circuit has ruled that Chevron Mining violated the National Labor Relations Act by amending its bonus plan.

The D.C. Circuit said the United Mine Workers' called for work stoppages even though strikes were prohibited during the contract.

The contract gave the mine unilateral authority to change the bonus plan. It did so in 2005 after the union called six work stoppages at one mine in 2004 to pressure the employer over ongoing grievances.

It eliminated the bonus for union-represented employees at any mine where there was a job action regardless of the mine's attainment of annual financial targets.

The premise of the union's work stoppages was a contractual provision allowing for "memorial days," which was in the contract for commemoration of miners' deaths or mining disasters. This clause in the collective bargaining agreement is an unpaid work stoppage. Since strikes were prohibited, the union used this contractual work stoppage provision to skirt the non-strike clause, the court said.

The National Labor Relations Board and the Court determined that the union did not misuse the memorial-days provision. The Court's majority said it looked to a body of opinions from a district court, arbitration, and the Division of Advice, per the parties' stipulation that they address the "history and purpose" of the provision.

Relying heavily on a district court opinion, the Court found that the materials demonstrated that the parties' intended that the union could use the provision to strike over an arbitrable dispute. The Court observed that at the time the union called these memorial periods, the employer never sought to enjoin them or otherwise indicated that it believed the union had overstepped its rights.

The Court noted that, "[a]lthough it is unusual for an employer to directly acknowledge taking adverse action because of protected activity, [the employer] did so here."

The Court dismissed the employer's claim that the bonus-plan amendment was a permissible economic weapon. It also agreed with the Board that the employer could not selectively direct that economic weapon against only employees who engaged in protected conduct.

But the dissenting opinion said, "The NLRB nonetheless construed the memorial-period clauses to create a de facto exception to the strike ban, and the court affirms. The conclusions of both the agency and the court violate the established principle (most familiar to us from anti-discrimination laws) that a right to do a thing at will, or for no reason at all, does not normally encompass a right to do it for reasons that contradict rights reserved to another party (here, the employer's right not to be subject to strikes while the CBAs are in effect)."

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