Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktIn IUOE, Local 513 v. NLRB, 635 F.3d 1233, the Court stated the facts as follows:
Overton, one morning, noticed that a piece of machinery was not properly deployed (an outrigger was not fully extended), which was a safety violation. Ozark’s safety rules — which are incorporated into the National Maintenance Agreement — oblige any employee to report to a supervisor safety violations. Indeed, an employee who does not do so is subject to discipline. Overton did report the safety violation [***3] and sought to determine who was responsible. After an investigation, another employee and Local 513 member was suspended for three days.
That led the union’s business agent to file charges against Overton for gross disloyalty and conduct unbecoming a union member. (Apparently the union also objected to Overton’s desire to bring in other experienced operating engineers rather than train the union’s members.) The union fined Overton $2,500, which prompted Ozark to file an unfair labor practice charge against the union. The Board’s general counsel issued a complaint alleging that the union violated section 8(b)(1)(A). HN1That section precludes a union from “restrain[ing] or coerc[ing]” an employee in the exercise of his section 7 rights, with the proviso that a union may continue to “prescribe its own rules with respect to the acquisition or retention of membership therein.” 29 U.S.C. § 158(b)(1)(A). And section 7 protects an employee’s right to “to engage in . . . concerted activities” [or] “. . . to refrain from . . . such.” Id. § 157.
****
From this background, the case proceeded not on section 7, but on 8(b)(1)(A) grounds. The NLRB has held for thirty years that a union violates that provision if a union disciplines an employee member for reporting a safety violation, which he has a duty to report. The DC Court says that without tying this to section 7 rights the NLRB cannot keep a union from disciplining a member for reporting a safety violation he is under a valid duty to report.
We are thus on the brink of creating a union workplace where an individual employee dare not report a safety violation he is under a duty to report, save through the channel of his union foreman. I think this is messy and bad, and may take the Supremes to reverse.
Filed under: Uncategorized |
All Things in Moderation 
Yikes. I would hope it does get reversed. That's just crazy. I don't care who you are–getting fined for reporting safety violations? That's just begging for big industrial accidents.
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That seems crazy and obvious to me. Why do you think it was decided this way?
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OT: Now I remember why I don't ever stay over at Plum Line any more. I was trying to engage DDAWD in a conversation about his interesting assertion that Republicans will have $20 billion to $40 billion dollars to spend on the 2012 election, when I pressed a button and the browser jumped back a page, and then everything I wrote was gone. Ugh!I'm done with that for the day.
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I couldn't resist a couple of comments over there today kevin. I don't really understand the legal posts very well. I used to think I could use "common sense" to form an opinion but I guess we all determined there is no such thing so I'm not sure how to couch my comments anymore. The case above seems absurd to me, how's that?
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TMW, it took a literal reading of the statute and the view that NLRB had not literally read the NLRA in creating its long standing rule.The Board is taking the position that in future cases it will not claim per se violation by a union disciplining a member for reporting a per se violation but will rely also on section 7 and prove concerted activity or individual right to refuse concerted activity. Board should be able to make that case most times, but with a per se rule it did not have to.I think the per se rule ["this is just always wrong" as a matter of law] could be justified based on a finding that the collective bargaining agreement [CBA] assumes the National Maintenance Act and lawful safety conduct in its terms so that disciplining for this, or for reporting an OSHA violation, for instance, cannot be allowed under the CBA.But the DC Court took a very constrained view of NLRB's authority and said NLRB cannot make up a per se rule that is not black and white within the statute it administers.
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This is why there are appeals courts.
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TMW, if you meant to ask about politics, Silberman is a very conservative senior judge, a Reagan appointee, and a close friend of Clarence Thomas. He teaches labor law as an adjunct prof at G'town LS and this is a very Thomas-like result. Compare it to the drug co. cases QB and I discussed where Thomas pointed out that it is not the Court's job to fix bizarre consequences from statutes.
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MsJS – this is from the DC Court of Appeals.They either reverse themselves, en banc, or only the Supremes can address this.Silberman, I predict, would not be reversed en banc.NLRB may not appeal. I do not know yet.
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Kevin:Now I remember why I don't ever stay over at Plum Line any more. I was trying to engage DDAWD…You really could have ended your post right there. 😉
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Ooops. Duh!I predict an en banc reversal. I'll bet freshly baked cookies on it.
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"Now I remember why I don't ever stay over at Plum Line any more. I was trying to engage DDAWD…"Sometimes the tech issues are worse than the more vibrant commentators. It's one thing to have someone else not read what you wrote, but another to sit their writing it and have the system eat it before you can even copy it for backup.
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Yes, when Greg wonders why there aren't more posts, I expect somewhere between 10 – 20% have been lost and people decide it's not worth the effort to recreate them.
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I hate losing posts to the ether. I've noticed that whenever it happends, no matter how hard I try, I can never quite capture the original post. There is always some turn of phrase or manner in which an idea was expressed that was just perfect, which I can't quite remember, and I always have to settle for something not quite as good.
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For anything longer than three lines I type in a word processing doc, then paste into the comment box. Saves a lot of hassle.
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Makes sense, I usually only think of that (and stick to it) after I've recently lost something.
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