The National Labor Relations Board (NLRB) document says the Carpenters argue that they believed they had a contract extension until Saturday, May 10, and that a decision on signing the customer satisfaction agreement — which the Convention Center gave a deadline of May 5 at 11:59 p.m. — was included in that span of time.
Filed Monday, the case issued by the Carpenters alleges that the Convention Center refused to bargain and/or bargained in bad faith. That is, the Convention Center went through the work-rule negotiation process without the intent or desire to reach an agreement.
Experts in union labor laws say that this type of charge is not uncommon, and that the Carpenters will have to fight an uphill battle in order to win.
“Very few charges of failure to bargain in good faith succeed,” said Philip Harvey, professor at Rutgers School of Law - Camden. “The weakness of the Carpenters is demonstrated by the fact that that’s the charge they had to file. The fact that the Carpenters had nothing else to charge except this strikes me as a sign that they’re in a weak position.”
Harvey says that in similar cases, charging parties (unions) typically file five charges along with the bad faith negotiation, which is “thrown in as a throwaway.” An example of a typical NLRB filing would be that an employer (the Convention Center) fired union supporters or intimidated union supporters.
So in order to tip the scales in their favor, the Carpenters will have to provide proof of bad faith bargaining through affidavits, bargaining notes or even emails exchanged back and forth between the unions and the Convention Center. The Carpenters will also have to prove that the Convention Center did, in fact, go through the motions of contract negotiations without the intent of signing an agreement.
“There’s no real principle of law in dispute here. It’s going to be entirely a question ... whether the Carpenters were misled by the employers,” and whether what the Convention Center did was “intentionally designed to avoid reaching an agreement with them,” Harvey said.
Furthermore, Harvey said “if you’re negotiating strategy is a cover for a desire to not reach an agreement — that’s bad faith,” but if you “just refuse to concede, that’s not bad faith bargaining. [The Convention Center] is not required to compromise.”
The fact that four other unions signed the agreement before the 11:59 p.m. deadline May 5, however, will play in the Convention Center’s favor.
It’s “garbage because the unions knew exactly what to do,” said Marc Furman, chair of the labor and employment group at Cohen Seglias in Philadelphia. “If the center said they were specific about it, I have no reason to dispute they were specific.”
Out of the six unions, the Carpenters and Teamsters Local 107 did not sign the agreement.
The NLRB Process
Experts say the NLRB process can take upwards of two years to be settled, depending on the level in which the charge enters.
Once a charge has been filed with the regional offices of the NLRB (in this case, the regional offices in Philadelphia), staff attorneys appointed by the NLRB will investigate the charge. This process, Harvey says, can take two to three months.
If the staff attorney decides the charge has no merit, they will dismiss it. If the attorney finds the charge has merit, they will find a way for both parties to reach an amicable settlement. If a settlement can’t be reached, they will proceed to file a legal claim against the employer or union who is alleged to have violated the act.
At this point, the claim will be tried before an administrative judge – an employee of the NLRB who is an independent, adjudicator judge – who then hears the case and decides. This process, Harvey says, can take six months to a year before a decision is made.
Either party can appeal the judge’s decision to the NLRB in Washington, where the case will be reviewed like an appellate court.
If either side is still unhappy with the decision, they can appeal the Washington board’s decision to the circuit courts of appeal, which will consider the appeal.
The final step would be to take the case to the Supreme Court, which decides whether or not to hear the case. The Supreme Court is not required to hear all cases.
“All of that, with all of the appeals, will take a number of years. It hardly goes all the way,” Harvey said. “Hardly anybody has the resources or the interest to litigate to the final conclusion.”
The few exceptions to the rule would be if this was a general principle of law issue, Harvey says, as was found with the case of the Northwestern University football players. This case between the unions and the Convention Center, Harvey said, has “an appearance of a garden variety dispute.”
Check out the NLRB process here.
What’s in a name?
Here’s a breakdown of the case number 04-CA-128505:
04– Pennsylvania’s 4th congressional district.
CA– The charge is filed against the employer (Pennsylvania Convention Center Authority, SMG and Elliott-Lewis Corp.) as opposed to a CB, a charge filed against unions.
128505– This is the 128,505th unfair labor charge filed against employers (CA) in the U.S.
Source: Philadelphia
Business Journal
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