UPS Wrongly fired Driver for Union Activities but stays fired due to Facebook postings
- Thread starter Catatonic
- Start date
Mugarolla
Light 'em up!
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.
UpstateNYUPSer(Ret)
Well-Known Member
The two on the right are no longer in the race. The one on the far left is far more qualified than the other two but unfortunately will not make it past the convention.
104Feeder
Phoenix Feeder
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
Gosh, what goes around, comes around. The 8 years of Obama will be felt for 800 years.
Maple Grove MN Driver
Cocaine Mang!
Seek help for your Trump Derangement Syndrome
Old Man Jingles
Rat out of a cage
Exactly ... see how it works?
Any wonk can do it.
Overpaid Union Thug
Well-Known Member
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?
104Feeder
Phoenix Feeder
Nothing you wrote can be implied by my comments. I generally avoid reductio ad absurdum in my opinions.
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quad decade guy
Well-Known Member
I think he(O U T) is exactly right. What you said is that with a Democrat as President-Unions
will be better protected...
Overpaid Union Thug
Well-Known Member
Your comments about the appointees says otherwise. But I’ll play along.....So, what exactly did you mean then?
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:
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
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.
Faceplanted
Well-Known Member
I never agree with you, I’m with you here. Keeping it gangsta on social media always results in a negative outcome.
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.
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.
El Correcto
god is dead
He should of just added “with all due respect”, it’s in the Geneva convention.
badsporh
He who is not with us, is against us.
Not, yet lol
That would require a win at the NLRB and for the Senate to pass the PRO Act
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