NLRB Orders Reinstatement and 4-years Backpay to a Position that Doesn’t Exist

The collective bargaining agreement between the Pittsburgh Post-Gazette and the union representing some of its employees guaranteed those employees five (5) shifts each payroll week until the agreement ended. Pretty straight forward, right?

If it was, I wouldn’t be writing about it.

While the parties negotiated a successor agreement, the CBA expired. Fifteen months later the Post-Gazette made the business decision to transition to an all-digital format. This this reduced the number of print days from seven (7) to five (5) and resulted in the lay-off of two pressmen.

The union filed an unfair labor practice charge alleging that the layoff violated the CBA’s “five shifts per week” guarantee. Per the union, the Post-Gazette should have maintained the status quo until either impasse was reached or the parties executed a new CBA.

In other words, the union’s position was that the Post-Gazette could not modernize, make process improvements, become more efficient, or streamline its production until it negotiated a new CBA that did not guarantee five shifts per week for every employee represented by the union.

The ULP took four years to work its way to the NLRB.

The Board ruled that the contract language was not sufficiently clear and unmistakable that the union waived its statutory right to the maintenance of the status quo, and that the five-shift guarantee should have remained in place.

Notably – the NLRB held that the two laid off pressmen should be reinstated, with four years of backpay, even though there was no work for them to do.

This case may not be over, yet. In reaching this conclusion, the current NLRB rejected the decision of the previous Republican Board in MV Transportation. It also did not follow the Eighth Circuit’s refusal to enforce a similar case in Finely Hospital. This case may be ripe for appeal.

This case is also a good reminder that sometimes the NLRB rules as it wishes without regard to case precedent. Had this case not taken four years to ultimately reach the Biden NLRB, the Trump Board (with a majority of Republican Board Members) probably would have followed MV Transportation’s holding and dismissed the charge.

#MattAustinLaborLaw #LaborRelations #LaborLaw

 

Matt Austin is a nationwide management labor lawyer. Labor laws govern virtually all private-sector employees regardless of union membership. Proactive management of labor relations is critical to maintaining flexibility and increasing profit.

Matt also runs Austin Legal’s HR Legal Compliance Program that, for a small monthly fee, ensures HR decisions are protected by the attorney-client privilege. 

Matt’s experience is deeply rooted in helping manage many aspects of his clients’ businesses. To effectively manage labor relations, he must also manage budgets, forecasts, new growth areas, and projected market corrections. High emotional intelligence is also critical to negotiating union contracts and to properly advise HR Legal Compliance members through the nuances of the law, its application to their companies, and how it will be received by employees.

You can reach Matt via email at Matt@MattAustinLaborLaw.com.