11/22/2024: Pittsburgh Post-Gazette Engaged in Bad Faith Bargaining
Also, ILWU dinged for retaliating against dissident union member.
ILWU, Alaska Division, Unit 223 (Matson Navigation Co.), 373 NLRB No. 133, 19-CB-214679 (Published Board Decision)
The dispute arose at the Port of Dutch Harbor, Alaska - the nation's largest seafood port - where about 130 dockworkers and maintenance employees were represented by ILWU Unit 223. The port operated under a collective bargaining agreement called the All-Alaska Longshore Agreement (AALA), with work assigned through a joint union-employer hiring hall system overseen by the Joint Port Labor Relations Committee (JPLRC).
The story centers on three related employees: Randall Baker (a longtime union leader), his son Killian Baker, and his brother-in-law Jeff Treannie. The conflict began when Randall Baker, after nearly two decades in union leadership positions, became the port's first Beck objector in January 2018. A Beck objector is someone who opts out of paying the portion of the union dues that goes to non-representational spending, such as political spending. This decision followed growing tensions with union leadership, including accusations that he had spent too much time on phone calls with management.
Shortly after Randall Baker became a Beck objector, Union Vice President Pat Lee told Treannie that if he followed his brother-in-law's example and became a Beck objector, he "wouldn't be working in this shop." Treannie filed a harassment complaint about this threat. Around the same time, he also filed a safety complaint about a truck with oil leaks being used in service. The Union and Employers responded by suspending him through the JPLRC, claiming his safety complaint was false and disrupted port harmony.
Meanwhile, Killian Baker, trying to help his uncle Treannie, secretly recorded conversations with coworkers discussing harassment by Lee and other workplace issues. These recordings were submitted as part of Treannie's appeal of his suspension. When the recordings came to light, both Killian Baker and Treannie faced retaliation. Killian Baker received a disciplinary notice and suspension, while Treannie was ultimately terminated and deregistered from the port.
The NLRB found that both the recordings and the safety complaints were protected activities under the National Labor Relations Act. The Board held that the Union and Employers violated the Act by retaliating against the employees for these protected activities. They ordered reinstatement and backpay, making both the Union and Employers jointly liable for most violations. However, the Board limited the Union's liability for Treannie's discharge to the period before August 1, 2018, when the union membership voted against his discharge.
A third set of allegations involved Randall Baker himself, who was suspended from "walking boss" assignments after complaints about his aggressive behavior. The Board dismissed these allegations, finding the discipline was based on legitimate workplace conduct issues rather than his protected activities.
Throughout the case, the NLRB emphasized several key principles:
The protected nature of workplace recordings when made to document legitimate workplace issues
The unlawfulness of retaliating against employees for becoming Beck objectors or associating with them
The importance of protecting employees' rights to file grievances and safety complaints
The joint responsibility of unions and employers when they operate hiring halls together
The case resulted in comprehensive remedies, including reinstatement, backpay, removal of disciplinary records, and requirements for both the Union and Employers to post notices and hold meetings to read them to employees.
Key Precedent
Communications Workers of America v. Beck, 487 U.S. 735 (1988): A union cannot compel support of nonunion members for activities “beyond those germane to collective bargaining, contract administration, and grievance adjustment”
NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984): Protected the right to file grievances invoking collectively bargained rights.
Wright Line, 251 NLRB 1083 (1980): Established a burden-shifting framework to determine if adverse actions were motivated by protected activity.
Caterpillar Tractor Co., 242 NLRB 523 (1979): Confirmed that the merits of grievances are irrelevant in determining protection under the Act.
MSHN Enterprises, 373 NLRB No. 137, 15-CA-313769 (Published Board Decision)
The case involved a Motion for Default Judgment following the Employer’s failure to fully comply with an informal settlement agreement in a case involving wage discussion policies and retaliatory discharge/refusal to hire.
Background
Euphoria Sephtis filed charges alleging MSHN Enterprises violated Section 8(a)(1) by:
Maintaining unlawful work rules prohibiting wage discussions
Conditioning employment on agreeing not to discuss wages
Refusing to hire/discharging her for protected concerted activities
Settlement Agreement and Breach
The parties entered into a bilateral informal settlement agreement (approved November 16, 2023). The agreement required MSHN to
Post notices at 36 facilities
Rescind unlawful rules/policies
Offer Sephtis reinstatement
Provide backpay
Remove references to discharge/refusal to hire
File W-2 forms and compliance reports
Legal Analysis
The Board granted the General Counsel's Motion for Default Judgment based on several key findings:
Substantial Compliance Defense Rejected:
The Board rejected MSHN's argument that it had "substantially complied" with the agreement
The Board emphasized that the settlement agreement could be enforced for "non-compliance with any of the terms"
Notice Posting Requirements:
The Board found MSHN unilaterally decided to post notices at fewer locations than agreed upon
MSHN's argument about resident complaints regarding notices was rejected as not excusing compliance
Personnel File Requirements:
The Board dismissed MSHN's argument that it didn't need to provide written notification about file expungement because no file existed
The Board noted MSHN could still issue the agreed-upon notification regardless
Jurisdictional Challenge:
The Board rejected MSHN's belated attempt to challenge jurisdiction based on Sephtis's employment status
Cited Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), which established that employee-applicants are protected from discrimination
Remedy
The Board ordered MSHN to:
Rescind unlawful wage discussion policies
Notify employees of the rescission
Remove references to Sephtis's discharge/refusal to hire
File required W-2 forms and reports
Post notices at all specified locations
Notable Procedural Point: The Board noted that while the settlement agreement allowed for "full remedy," since the General Counsel didn't specifically request additional remedies beyond enforcing the settlement terms, the Board limited its order to enforcing the unmet settlement provisions.
Key Precedent
Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941): Established that discrimination protection extends to job applicants
FES, 331 NLRB 9 (2000): Confirmed Board's authority to address discriminatory refusals to hire
East End Bus Lines, Inc., 366 NLRB No. 54 (2018): Established that partial compliance doesn't excuse breach of settlement agreement
PG PUBLISHING CO., INC. D/B/A PITTSBURGH POST-GAZETTE, JD-71-24, 06-CA-263780 (ALJ Decision)
In 2020, the Pittsburgh Mailers Union filed charges against PG Publishing Co. (Pittsburgh Post-Gazette), alleging the company had engaged in bad-faith bargaining. The dispute centered on negotiations for new collective bargaining agreements for full-time and part-time mailers, as well as healthcare benefits.
The case arose during a challenging period for the newspaper industry. PG Publishing had reduced its print days and was experiencing significant financial losses. Against this backdrop, in March 2017, the company presented initial contract proposals that would dramatically alter its relationship with the union.
The company's proposals would have given management extensive unilateral control over workplace decisions. These included the ability to use non-union workers for union work, complete discretion over discipline and discharge, unrestricted authority to change healthcare benefits, and significant limitations on the union's ability to challenge company decisions through grievance procedures.
Despite years of negotiations, the company maintained these core positions through its "best offers" in January 2020 and "final offers" in April 2020. The proposals actually became more aggressive in some areas - for instance, the final wage rates were lower than those offered in 2017.
A separate dispute emerged over healthcare benefits in late 2021. The company's existing agreement with the Western Pennsylvania Teamsters and Employers Welfare Fund was set to expire, and negotiations over continued coverage became contentious. The company insisted on signed agreements that the union deemed unnecessary, while also pushing to switch employees to a company plan that it could modify at will.
The situation reached a breaking point in October 2022 when the mailers, along with other unions, went on strike over healthcare benefits. The strike was ongoing when this case was decided.
Administrative Law Judge Ira Sandron found that the company's contract proposals violated labor law because they would have effectively stripped the union of any meaningful role as the employees' representative. However, he dismissed the separate allegation about healthcare negotiations, finding that any bad faith in those talks was already covered by the broader violation regarding contract proposals.
The judge ordered PG Publishing to bargain in good faith, submit regular progress reports, and compensate the union for its bargaining expenses. He declined to order more extensive remedies like notice reading or compensation for employees' healthcare costs.
Key Precedent
NLRB v. Insurance Agents International Union, 361 U.S. 477 (1960): Collective bargaining under the NLRA requires parties to negotiate with the intention of reaching an agreement.
United Contractors Inc., 244 NLRB 72 (1979): Establishes that bad-faith bargaining occurs when a party engages in negotiations without a sincere purpose to find common ground.
Flagstaff Medical Center, Inc., 357 NLRB 659 (2011): Clarifies the role of evidence in assessing whether bargaining proposals are made in good faith.