Employee Rights When a Collective Bargaining Agreement Has Expired - Shop Stewards in the Cross-hairs

from the October 2012 LEL Labor and Employment Law News

A recent NLRB case from Puerto Rico analyzes employee rights during a period when their collective bargaining agreement has expired and no successor contract is yet in place. It also explores the degree to which shop stewards’ NLRA rights differ, if at all, from the rights of other employees.   CC-1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers, 358 NLRB No.129 (Sept. 18, 2012).

Shop stewards are employees and are protected by the National Labor Relations Act. That means that their concerted – that is, collective – activities taken for mutual aid or protection are also protected. In this case, after the parties’ collective bargaining agreement expired, four of the five shop stewards encouraged other employees to stop working. The employer then fired the four stewards.

Most terms of a collective-bargaining agreement remain in force after the CBA expires. But, as the decision says, the “Board has long held, with Supreme Court approval, that a no-strike clause typically does not survive the expiration of a collective-bargaining agreement.” In addition, although the contract waived  the rights of “shop stewards to engage in otherwise protected work stoppages”, the Board found no evidence “that the parties intended the waiver to outlive the contract”. As a result, the employer could not discipline “the stewards for encouraging employees to engage in a protected work stoppage.”

The Board explained, “Any other conclusion would allow rank-and-file employees to encourage or engage in a protected work stoppage, but would permit an employer to terminate a shop steward for the same action. Although the Board has found that an employer may impose harsher discipline on union officials for instigating or actively leading employees in illegal (and thus unprotected) strikes during the term of a collective-bargaining agreement, an employer may not rely on the employees’ shop-steward status to impose harsher discipline for protected activity. . . . As a result, the stewards did not violate the terms of the CBA, and the employer violated the NLRA by firing the stewards.”     In addition, the Board said that it is “well established that an employer cannot enforce a rule that disciplines an employee for protected conduct. . . . Here, the stewards were engaged in protected concerted activity when they encouraged employees to join the strike”.

The case also discusses the status of a strike that has not been authorized by the union. The Supreme Court has found strike activity that undermines the union representative is unprotected because it undermines the principle of exclusive representation under NLRA Sec. 9(a). “The “Board has determined that, in assessing whether employees who act independently from their bargaining representative lose the protection of the Act, two factors are controlling: (1) whether the employees are attempting to bargain directly with the employer and (2) whether the employees’ position is inconsistent with the union's position.” In this case, there was no evidence that the union saw the employees’ actions as undermining the union. The union had requested strike funds from the International, and it had filed a grievance over the employer’s suspension of the stewards. In addition, when the union was told that the employees had voted to strike, the union did not oppose the strike., even though the union did tell the employer the strike had not been authorized.