Utility Union Gets Some Relief in Work Van Issue

     MANHATTAN (CN) – An utility company cannot upend penalties it faces for unfair labor practices and undermining union bargaining power, the 2nd Circuit ruled.
     Rochester Gas, whose natural gas and electricity powers customers in nine New York counties, allowed its low-voltage workers to keep company vans at their homes during off-duty hours for more than 15 years.
     In late 2005, the company announced that its employees would need to start parking those cars in the company garage on New Year’s Day.
     The Local Union 36 of the International Brotherhood of Electrical Workers complained to the National Labor Relations Board that the utility did not allow collective bargaining over vehicle change policy and its effects.
     Disappointing both parties, the NLRB found that Rochester Gas should have bargained with the union over the terms of the vehicle policy change, not the policy itself.
     The board granted the union an award of limited back pay for the lost value of using company vehicles after work.
     In cross-petitions to the 2nd Circuit, the union sought wider bargaining power and greater damage awards, and the utility insisted that it had the right to make the changes unilaterally without compensation.
     A three-judge panel upheld the NLRB’s ruling Thursday, applying a “two-step inquiry” to decide whether the union waived its collective bargaining rights.
     “First, we ask whether the right subject to collective bargaining is clearly and unmistakably covered by the contract,” Judge Jose Cabranes wrote for the panel. “Second, if it was not, we ask whether the union has effected a clear and unmistakable waiver of its right to bargain. If the alleged waiver is not clear and unmistakable, we will find that the union has not waived its right to bargain.”
     The NLRB made the correct decision because the parties’ collective bargaining agreement neither covered the vehicle policy change nor waived the union’s rights, the 25-page opinion states.
     An award of limited back pay “demonstrates the careful attention” that the NLRB paid to the case, according to the ruling.
     “The board’s choice of the limited back pay remedy in this case was well within its broad remedial discretion,” Cabranes wrote.
     Judge Chester Straub wrote separately to chide the majority’s “two-step framework” as an “unnecessary innovation.”
     The NLRB’s “clear and unmistakeable” waiver standard, endorsed by the Supreme Court, would have yielded the same findings, Straub said in a concurring opinion.

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