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D.C. Circuit upholds telecom bargaining unit carved out by NLRB

3 minute read

The headquarters of the National Labor Relations Board (NLRB) in Washington, D.C., May 15, 2021. REUTERS/Andrew Kelly

  • NLRB can go beyond parties' proposed bargaining units
  • Workers in Oregon, Alaska had enough in common to join same unit

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(Reuters) - A U.S. appeals court ruled on Friday that the National Labor Relations Board had the power to add workers to an Alaska-based telecommunication company's bargaining unit, even though the final makeup of the unit had not been proposed by the company or the union.

A unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected Alaska Communications Systems Holdings Inc's (ACS) claim that the board violated its due process rights by carving out a group of workers of its own design to add to an existing bargaining unit.

"The Board was not obligated to provide explicit notice to the Company of every possible alternate unit it might consider, especially when the Company itself introduced evidence relating to the alternate unit ultimately chosen by the Board," Circuit Judge Sri Srinivasan wrote.

The panel also said the NLRB was right to find that a group of ten ACS employees in Oregon shared enough in common with coworkers in Alaska to join an existing unit of the International Brotherhood of Electrical Workers.

Anchorage-based ACS and its lawyers at Ogletree Deakins Nash Smoak & Stewart did not immediately respond to requests for comment. Nor did IBEW, which was not involved in the appeal.

ACS provides telecom services throughout Oregon and Alaska, where most of its employees are based. A small group of workers based in Oregon monitor the company's network in the state and its cables running across the Pacific Ocean.

In 2018, IBEW petitioned for an election to add about 10 Oregon-based workers to an existing unit of 320 employees in Alaska.

An NLRB regional director found that two of the Oregon employees were supervisors and could not join the unit. But he also ruled that two Alaska-based workers who were not in the union performed the same work as the other employees covered by the petition, and added them to the proposed unit.

The NLRB in 2019 denied ACS' request for review, and the workers voted to join IBEW. ACS refused to bargain with the new unit, triggering unfair labor practice proceedings. The board last year granted summary judgment to the NLRB general counsel.

ACS appealed, claiming the board deprived it of due process by altering the bargaining unit without giving the company a chance to respond. ACS also said adding the Oregon workers to the unit was inappropriate because their working conditions differed from those of employees in Alaska.

The D.C. Circuit on Friday said that because representation cases before the NLRB are non-adversarial, the due process concerns that arise in other kinds of cases do not apply. The board in ACS' case was merely fulfilling its duty to select an appropriate unit, the court said.

And the Alaska and Oregon employees have the same job duties, similar pay rates, and shared supervision, the panel found. Differences in the two groups' benefits could be explained by the fact that the Alaska employees were already in a union, and the Oregon workers were not, Srinivasan wrote.

The panel included Circuit Judges Karen Henderson and Patricia Millett.

The case is Alaska Communications Systems Holdings Inc v. NLRB, U.S. Court of Appeals for the D.C. Circuit, No. 20-1032.

For ACS: Daniel Adlong of Ogletree Deakins Nash Smoak & Stewart

For the NLRB: Brady Francisco-FitzMaurice

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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