NLRB Case: SW General, Inc. d/b/a Southwest Ambulance and International Association of Fire Fighters Local I-60, AFL–CIO, Case 28–CA–094176 (2014).
Facts of the case: Following expiration of its prior collective bargaining agreement (CBA) between employer SW General, Inc. d/b/a Southwest Ambulance (Southwest Ambulance) and union International Association of Fire Fighters Local I-60, AFL–CIO (IAAF) in 2012, Southwest Ambulance ceased making biannual longevity payments, previously made in June and December to IAAF members with 10-plus and 15-plus years of service, without giving notice to the IAAF. The union charged that this action “violated Section 8(a)(5) and (1) of the [National Labor ...view middle of the document...
5), and that the employer “admits that it did not provide the Union with notice or an opportunity to bargain prior to the decision to discontinue longevity payments” (p. 6). The CBA expired September 8, 2012, after being extended temporarily three times from June 1, 2012, but no notice was given to the union regarding termination of longevity pay until December 3, 2012 (p. 6). Prior to termination of the CBA, the company and union had agreed to retain longevity payments in the new CBA being negotiated (p. 7).
The ALJ found that (1) “longevity pay, as described in article 44 of the 2009 Agreement, as well as the three predecessor agreements, is clearly a mandatory subject of bargaining. The Board has recognized longevity pay as a mandatory subject of bargaining” (p. 8), and (2) the employer “violated Section 8(a)(5) and (1) of the Act by unilaterally discontinuing longevity pay without first having afforded the Union notice and an opportunity to bargain” (p. 11).
The ALJ ordered the employer to resume longevity payments and ordered back pay with interest to eligible union members from the end of the last CBA until a new CBA is concluded or negotiations reach an impasse, and required the employer to negotiate longevity pay for a new CBA in good faith. On appeal the three-judge NLRB panel also required the employer to:
file a report with the Social Security Administration allocating backpay to the appropriate calendar quarters, and shall compensate the affected employees for the adverse tax consequences, if any, of receiving one or more lump-sum backpay award(s) covering periods longer than 1 year (SW General, Inc. d/b/a Southwest Ambulance and International Association of Fire Fighters Local I-60, AFL–CIO, 2014, p. 1).
Does the Action in the Case Harm the Business Environment?
Clearly changing pay entitlements of union members as Southwest Ambulance did here harms the business environment, reducing employees’ standard of living, and reducing income and other tax payments to state and federal governments. It is longstanding NLRB case law that changing working conditions without notice, which changing rates of pay clearly is, constitutes an unfair labor practice, and gives the employer an extreme and unfair advantage in labor negotiations.
Does the Result in This Case Harm the Business Environment?
The result in this case reinstating longevity payments with back pay plus interest does nothing to change the business environment, but rather restores the status quo; consequently, it does no harm. The ALJ and three-judge NLRB panel cited numerous prior NLRB cases finding that pre-existing longevity payments are a required term of collective bargaining: “Pine Brook Care Center, 322 NLRB 740, 748 (1996)… NLRB v. Katz, 369 U.S. 736, 743 (1962)… Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539, 544 fn. 6 (1988), Litton Financial Printing Div. v. NLRB., supra, 191–192… Finley Hospital, 359 NLRB No. 9, slip op. at...