UPS Wrongly fired Driver for Union Activities but stays fired due to Facebook postings

DriveInDriveOut

Living rent free in Susie's mind
The first Cult45 member that ever used the correct 'your/you're' in a sentence!
Get this man another round of cognitive dissonance!
This conversation is pointless anyway, dream all you want.

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Mugarolla

Light 'em up!
Currently the NLRB (the Board) in DC is attempting to use RA's case to set new precedent by overturning existing precedent that has allowed his case to progress as far as it has.

RA's case has been able to get to this point in part because of something called the Babcock and Wilcox review standard.

Simply put, this standard or precedent allows cases brought before the Board to not be deferred to the grievance machinery when there is a likelihood that those who are supposed to be on the union member's side (the union representatives or State Panel members) are actually adversarial to the member or political enemies of the member.

The previous standard (that was overturned in favor of Babcock in 2014) was the Spielberg review standard. The Board is attempting to go back to this standard and apply it retroactively to RA's case. The Spielberg standard did not care if the State Panel was made up of political enemies, thus meaning if you lost at State Panel the NLRB would consider that your 'bite at the apple' and consider your case to be deferred or over.

If the Board is successful in using RA's case to change this standard, the ALJ's decision will be vacated and the Board will attempt to declare RA's case null and void.

UPS's legal counsel and the US Chamber of Commerce have written briefs in favor of returning to the Spielberg review.

The Association for Union Democracy and RA's legal counsel have written briefs in favor of keeping the Babcock and Wilcox review standard.

What they're appealing has nothing to do with why he is not working today, his harassing social media posts. They are just hoping to vacate the ALJ decision, thus vacating his discharge for his social media posts.

RA's only shot is the fact that his posts were made after his termination.

If I were a gambling man, I would go all in against him winning, but he does have a long shot chance.

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104Feeder

Phoenix Feeder
You missed my point entirety. So, I’ll simplify. None of that matters when the the union (that’s supposed to be pro worker, not “stacked” political appointees, and chosen by said workers) fails to do its part.

It does matter because the NLRB can right the wrongs of a Union as well as an employer, and now with the changing standard by new appointees that is less likely to happen.
 

quad decade guy

Well-Known Member
Each administration appoints members to the board for 5 year terms, with one member expiring each year, confirmed by the Senate. McConnell held up Obama's appointments so now with Trumps you have a Board weighted towards Employers with no advocacy for Labor. Couple that with the SCOTUS stacking and a lot of Union members will have a rude awakening coming and the damage will be felt for decades. They sure stuck it to us liberals though.


Gosh, what goes around, comes around. The 8 years of Obama will be felt for 800 years.
 

Overpaid Union Thug

Well-Known Member
It does matter because the NLRB can right the wrongs of a Union as well as an employer, and now with the changing standard by new appointees that is less likely to happen.
So, what you are implying is...during the time of your preferred appointee’s control no employers are able to erroneously fire someone? And no unions ever collude with a company to get rid of an employee, or, don’t honor their obligation to represent said employee?

And that when someone else is in those positions companies are able to erroneously fire employees in droves and unions are inept except at helping the companies get rid of people?
 

badsporh

He who is not with us, is against us.
An article about RA's case and what it means to the labor movement in this months issue of Union Democracy Review.
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104Feeder

Phoenix Feeder
So, what you are implying is...during the time of your preferred appointee’s control no employers are able to erroneously fire someone? And no unions ever collude with a company to get rid of an employee, or, don’t honor their obligation to represent said employee?

And that when someone else is in those positions companies are able to erroneously fire employees in droves and unions are inept except at helping the companies get rid of people?

Nothing you wrote can be implied by my comments. I generally avoid reductio ad absurdum in my opinions.
 
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badsporh

He who is not with us, is against us.
A little bit of the backstory:

Back in May of this year (2019) the NLRB issued an invitation to file briefs in RA's case in regard to whether they should remove the postarbitral deferral standard announced in Babcock & Wilcox (which favors working men and women) and go back to the previous Olin standard (which does not favor working men and women).

In Babcock, the Board announced a new standard for deferring to arbitral
decisions in cases alleging violations of Section 8(a)(3) and (1) of the Act. Under this
standard, if the arbitration procedures appear to have been fair and regular, and if the parties agreed to be bound, the Board will defer to an arbitral decision if ●☆the party urging deferral☆●(this is generally the company) shows that:
(1) the arbitrator was explicitly authorized to decide the unfair labor practice issue
(2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral.
(3) Board law reasonably permits the award.

Under Spielberg/Olin the Board deferred to an arbitration/joint panel award or decision when:
(1) the arbitration proceedings were fair and regular
(2) all parties agreed to be bound by the decision
(3) the arbitral decision was not repugnant to the purposes and policies of the Act.

Further, the arbitral forum must have considered the unfair labor practice issue. The Board deemed the unfair labor practice issue to have been adequately considered if:
(1) the contractual issue was factually parallel to the unfair labor practice issue.
(2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor
practice issue.
●☆The burden of proof rested with the party opposing deferral☆● (this is generally a rank and file union members).

The NLRB General Counsel's office has issued their own brief in favor of returning to Spielberg/Olin....showing that they are in fact sadly on the side of big business.

Others who filed a brief in favor of Spielberg/Olin were the Chamber of Commerce of the United States and the law offices of Frost, Brown, Todd (UPS's legal counsel).

Filing briefs in favor of retaining the Babcock and Wilcox standard on behalf of RA and all union members were RA's attorney Cathy Highet and also The Association for Union Democracy.

Below I've attach links to all of these briefs and the NLRB decision soliciting these briefs.

Solidarity

P.S. Thank you to Board member Lauren McFerran for offering a dissent to the Board's decision to attempt to do away with Babcock and Wilcox. She is the loan voice defending working men and women remaining on the Board and she is doing a fantastic job.

P.S.S. Also thank you to the Association for Union Democracy for writing a brief defending Babcock and Wilcox. They are excellent defenders of the rank and file!

P.S.S.S. And as always, thank you to RA's attorney Cathy Highet. This case would have never made it past the Pittsburgh Regional office with RA's charges if it wasn't for her. If you click the link below for the brief that she wrote, it's very evident what an amazingly gifted and talented legal mind that she is.

Link to RA's case:
NLRB | Public Website

Direct link to Board Decision requesting briefs:
http://apps.nlrb.gov/link/document.aspx/09031d4582b3fc2e

General Counsel's Brief:
http://apps.nlrb.gov/link/document.aspx/09031d4582bcdc77

RA's attorney Cathy Highet's brief:
http://apps.nlrb.gov/link/document.aspx/09031d4582bcfa84

The Association for Union Democracy's brief:
http://apps.nlrb.gov/link/document.aspx/09031d4582bcf982

UPS attorneys Frost, Brown,Todd's brief:
http://apps.nlrb.gov/link/document.aspx/09031d4582bce30e

The Chamber of Commerce of the United States of America's brief:
 

BigUnionGuy

Got the T-Shirt
A little bit of the backstory:

Back in May of this year (2019) the NLRB issued an invitation to file briefs in RA's case in regard to whether they should remove the postarbitral deferral standard announced in Babcock & Wilcox (which favors working men and women) and go back to the previous Olin standard (which does not favor working men and women).

In Babcock, the Board announced a new standard for deferring to arbitral
decisions in cases alleging violations of Section 8(a)(3) and (1) of the Act. Under this
standard, if the arbitration procedures appear to have been fair and regular, and if the parties agreed to be bound, the Board will defer to an arbitral decision if ●☆the party urging deferral☆●(this is generally the company) shows that:
(1) the arbitrator was explicitly authorized to decide the unfair labor practice issue
(2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral.
(3) Board law reasonably permits the award.

Under Spielberg/Olin the Board deferred to an arbitration/joint panel award or decision when:
(1) the arbitration proceedings were fair and regular
(2) all parties agreed to be bound by the decision
(3) the arbitral decision was not repugnant to the purposes and policies of the Act.

Further, the arbitral forum must have considered the unfair labor practice issue. The Board deemed the unfair labor practice issue to have been adequately considered if:
(1) the contractual issue was factually parallel to the unfair labor practice issue.
(2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor
practice issue.
●☆The burden of proof rested with the party opposing deferral☆● (this is generally a rank and file union members).

The NLRB General Counsel's office has issued their own brief in favor of returning to Spielberg/Olin....showing that they are in fact sadly on the side of big business.

Others who filed a brief in favor of Spielberg/Olin were the Chamber of Commerce of the United States and the law offices of Frost, Brown, Todd (UPS's legal counsel).

Filing briefs in favor of retaining the Babcock and Wilcox standard on behalf of RA and all union members were RA's attorney Cathy Highet and also The Association for Union Democracy.

Below I've attach links to all of these briefs and the NLRB decision soliciting these briefs.

Solidarity

P.S. Thank you to Board member Lauren McFerran for offering a dissent to the Board's decision to attempt to do away with Babcock and Wilcox. She is the loan voice defending working men and women remaining on the Board and she is doing a fantastic job.

P.S.S. Also thank you to the Association for Union Democracy for writing a brief defending Babcock and Wilcox. They are excellent defenders of the rank and file!

P.S.S.S. And as always, thank you to RA's attorney Cathy Highet. This case would have never made it past the Pittsburgh Regional office with RA's charges if it wasn't for her. If you click the link below for the brief that she wrote, it's very evident what an amazingly gifted and talented legal mind that she is.

Link to RA's case:
NLRB | Public Website

Direct link to Board Decision requesting briefs:
http://apps.nlrb.gov/link/document.aspx/09031d4582b3fc2e

General Counsel's Brief:
http://apps.nlrb.gov/link/document.aspx/09031d4582bcdc77

RA's attorney Cathy Highet's brief:
http://apps.nlrb.gov/link/document.aspx/09031d4582bcfa84

The Association for Union Democracy's brief:
http://apps.nlrb.gov/link/document.aspx/09031d4582bcf982

UPS attorneys Frost, Brown,Todd's brief:
http://apps.nlrb.gov/link/document.aspx/09031d4582bce30e

The Chamber of Commerce of the United States of America's brief:


17 year Union Steward in a small center, couldn't help himself.

Want's to blame everyone else....


Old news.
 

badsporh

He who is not with us, is against us.
☆☆☆UPDATE☆☆☆

3rd Circ. OKs NLRB's Restored Arbitration Deferral Rule

By Braden Campbell · July 9, 2021, 4:43 PM EDT

The Third Circuit approved the National Labor Relations Board's decision to more readily defer to arbitrators when workers' grievances overlap with unfair labor practice allegations, but said it botched applying the revised test to a UPS worker who challenged his firing.

The unanimous panel on Thursday partially vacated the NLRB's December 2019 decision declining to second-guess a grievance panel's decision upholding worker Robert Atkinson's 2014 firing and reversing an Obama-era ruling giving less deference to arbitrators.

The Third Circuit panel said the more deferential standard the board adopted in UPS aligns with the National Labor Relations Act's goals but that the board should have entertained Atkinson's arguments that the grievance proceedings were unfair.

"According to the board, deferring to an agreed-upon dispute resolution proceeding encourages parties to the collective bargaining agreement to rely on the proceeding rather than attempting to circumvent the proceeding by taking grievances to the board in the form of an unfair labor practice charge," the panel said in a portion of its ruling discussing the policy shift. "This fulfills Congress' first policy mandate under [the NLRA]."

The board's arbitration deferral standard attempts to harmonize two occasionally conflicting policies in the NLRA: that workers and employers decide how best to settle contract disputes by negotiating a process for resolving grievances, and that the board "is empowered … to prevent any person from engaging in any unfair labor practice." These provisions can clash when a party to a collective bargaining agreement pursues a grievance and files an unfair labor practice charge challenging the same action, such as an illegal firing.

In this case, Atkinson, a Teamsters Local 538 member and steward, filed an unfair labor practice charge alleging he was fired over his union activities, while a grievance challenging his firing was still pending before an arbitration panel. The panel upheld Atkinson's firing, ostensibly for not following the right delivery process. The NLRB judge hearing Atkinson's board case declined to defer to the UPS panel, finding the members had it in for Atkinson because he led local opposition to a contract championed by Teamsters national leadership, and ordering that UPS rehire him.

UPS appealed the judge's ruling to the board, which reversed and called for greater deference to arbitration. The UPS panel said judges should decline to hear unfair labor practice cases that overlap with grievances when the arbitration process is "fair and regular"; the parties agreed to it; the contractual and unfair labor practice issues are "factually parallel"; the arbitrator "was presented generally" with the common facts; and the decision was not "clearly repugnant" to the NLRA. That test replaced a less deferential rule the board laid out in a 2014 decision known as Babcock & Wilcox Construction Co., restoring a standard the agency had used since 1984.

Atkinson challenged the board's policy shift and its application of the new test at the Third Circuit. Noting the courts' policy of deference to the NLRB, the panel said the agency's revised rule is "rational and consistent with the act" because it preserves parties' rights to have disputes heard before a neutral fact-finder.

But the board botched the case by declining to hear Atkinson's argument that the grievance panel was biased, the Third Circuit said.

The board said only the Office of the General Counsel, which prosecutes unfair labor practice cases on parties' behalf, could raise that argument. The Third Circuit said this misreads the NLRA, which allows "any party" to the dispute to press challenges to a judge's decision before the board.

"While we normally defer to the board, 'the board bears the burden of stating reasons for its action and making sufficient factual findings to support them. Only when the board does so can it clearly show that it has legitimately exercised its discretion,'" the panel said, directing the board to consider Atkinson's fairness argument.

An NLRB representative declined to comment. Attorneys for Atkinson and UPS did not immediately respond to requests for comment.

Judges Theodore A. McKee, David J. Porter and D. Michael Fisher sat on the panel for the Third Circuit.

Atkinson is represented by Catherine Highet of Highet Law LLC.

The NLRB is represented by David Habenstreit, Elizabeth Heaney and Joel Heller.

UPS is represented by Jennifer Asbrock of Frost Brown & Todd and by Tony Coleman and Jacqueline Rau of Dinsmore & Stohl.

The case is Robert Atkinson Jr. v. NLRB, case number 20-1680, before the U.S. Court of Appeals for the Third Circuit.
 
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