CSEA Local 1000 v. NLRB, (2nd Circuit, June 19, 2009)

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CSEA Local 1000 v. NLRB, (2nd Circuit, June 19, 2009)

Post  JoeC (McGruff) on Wed Jun 24, 2009 11:42 pm

The U.S. Court of Appeals for the Second Circuit held that a health care employer committed an unfair labor practice when it discharged five employees who had participated in peaceful picketing in front of its main entrance, even though the picket line violated NLRA Section 8(g)’s ten-day notice requirement. Vacating the NLRB’s 2-1 decision, the Court found the labor board’s construction of the Act was “not defensible” and granted the union’s petition to vacate the board’s ruling.



Local 1000, an AFSCME affiliate, tried to organize a unit of Correctional Medical Services (CMS) employees. In 2002, CMS refused the union’s request for recognition and the union subsequently engaged in peaceful picketing in which 20 individuals walked in a circle in front of the health clinic, including five employees. However, Local 1000 did not provide the employer with 10 day advance notice. CMS filed a charge against the union under Section 8(g) of the Act, which requires a labor organization to give a health care institution at least 10 days advance notice before "engaging in any strike, picketing, or other concerted refusal to work."



The NLRB Regional Director issued a complaint against Local 1000 which the union settled. The employer subsequently discharged the five employees for participating in an illegal picket line. The NLRB upheld the discharges in a 2-1 ruling issued May 31, 2007.



The Court undertook a detailed analysis of the NLRA and noted that while Section 8(g) prohibits a “labor organization” from striking or picketing a health care institution “the statute does not state that an employee who does the same commits a violation.”



Turning to NLRA Section 8(d)(4) the Court observed that while an employee loses his status as an employee if he engages in a strike during the notice period specified in 8(g), “section 8(d) does not include a comparable provision about employees who participate in picketing conducted by the labor organization in violation of those notice requirements.” Thus while a labor union could commit a violation by engaging in a strike or picketing, the language in 8(g) and 8(d) only imposed on individuals a requirement to refrain from striking during the notice period. This distinction was meant to reflect the proper balance struck by Congress between the rights of individuals to engage in concerted and protected activity under Section 7, and the unique concerns of health care institutions.



The Court vacated the NLRB’s ruling and remanded the case back to the labor board. Although this decision strengthens the rights of individual workers to engage in peaceful picketing activity, one should continue to take deliberate care when planning any type of picketing or strike activity involving a health care institution as Section 8(g) remains a volatile area of the law.
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