Jottings By An Employer's Lawyer

Wednesday, February 15, 2006

No Valentine for Employer in Interpretation of No Strike Clause


The 2000 annual shareholder's meeting of Engelehard Corp. has long since ended, but one piece of unfinished business ended up before the 3rd Circuit for resolution yesterday. When negotiations for a new contract stalled, the IBEW organized a protest at the 2000 annual meeting, including 50 bargaining unit members, in order to put pressure on the company to renew negotiations.

The Company's view was that such participation would violate the current collective bargaining agreement's no-strike/no-lockout provision which precluded any picketing "whatsoever." After employees who participated in the demonstration were suspended for 3 days, the Company challenged an NLRB ruling of an unfair labor practice charge, resting their defense on their reading of the provision.

In full it read:
The Employer and the Union declare it to be their intention to prevent any suspension of work due to labor disputes during the term of this Agreement. To carry out this intention, the Employer agrees that there shall be no lockout of any of its Employees or discrimination against them because they have raised a dispute or grievance. The Union agrees that it will not call, participate in, or sanction, during the term of this Agreement, any strike, boycott, picketing, work stoppage or slow-down whatsoever. The Union further agrees that any Employee engaging in an unauthorized strike, boycott, picketing, organized work slowdown or stoppage, or any other type of interference with the EmployerÂ?s business, shall be subject to immediate discharge at the discretion of the Employer with no recourse to the grievance procedure contained herein.
Unfortunately for the company, the Administrative Law Judge, the Board and ultimately the 3rd Circuit found that the language was not applicable, as it did not meet the "clear and unmistakeable waiver" standard required. The resolution turned in large part on the introductory sentence, which the Court found required that the picketing had to lead to a work stoppage, which picketing at the shareholder's clearly did not. Engelhard Corp. v. NLRB (3rd Cir. 2/14/06) [pdf] .

It seems unlikely that this case will make it to the Supreme Court for review, but if it did, it would pose an interesting question --- what does Justice Alito do since he sat on the original panel? However, since he was, as the opinion says "elevated" to the Supreme Court after argument, but did not participate in the decision, maybe if he disagreed he would get to cast his vote anyway.


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