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Patricia McConnell Quoted in Law360 “DC Circ. Agrees Pool Co. Wrongly Locked Out Employees”

McConnell_PatThe D.C. Circuit on Friday upheld a National Labor Relations Board ruling that a New Jersey pool equipment and chemical maker flouted federal labor laws when it locked out its unionized employees, saying the company never presented a clear collective bargaining offer before the lockout began.

A three-judge panel affirmed a 2011 ruling in which the board found Alden Leeds Inc. violated the National Labor Relations Act when it initiated a lockout on Nov. 3, 2009, as the parties were attempting to negotiate a new collective bargaining pact.

“We hold that, on the record before us, there is substantial evidence to support the board’s finding that Alden Leeds violated the [NLRA] by locking out its employees on November 3, 2009,” the board said. “The board’s judgment in this case easily commands the deference of this court under the controlling standards of review.”

Alden Leeds, which manufactures swimming pool cleaning supplies and chemicals at two locations in New Jersey, employs about 50 production and delivery workers, who have been represented by the United Food and Commercial Workers Union Local 1245 since 2001.

In late 2009, the sides tried to hammer out a collective bargaining agreement in which the workers sought increases in areas such as pay and vacation days. The main sticking point between the parties turned out to be health care, with the union and Alden Leeds disagreeing over how to apportion increases in premiums that were set to rise under an existing health care plan the workers wanted to keep.

The company eventually locked the workers about a week before it made a supposed final offer, which the union rejected. The union then filed an unfair labor practices charge with the NLRB.

In its 2011 ruling, the board found that Alden Leeds’ decision to lock out its employees flouted the NLRA because the company didn’t provide its workers with a timely, clear and complete offer that detailed how the lockout could be avoided. The board noted that the lockout was illegal at its inception and that the Nov. 9 final offer made by the company that included more details did not let the company off the hook for failing to provide a complete proposal prior to the lockout.

The board also backed an administrative law judge’s finding that an email sent by Alden Leeds to union representatives on Oct. 30, 2009, just days before the lockout that purportedly detailed the terms of the company’s offer was confusing, incomplete, and internally inconsistent.

The ALJ also found that union representatives were confused about which health care plan, if any, the company was proposing in the email, the last communication between the parties before the lockout.

On appeal, Alden Leeds argued that substantial evidence in the case’s record doesn’t support the board’s finding that the company committed the alleged unfair labor practices. The company also said that its Oct. 30 email to union representatives was clear and that the record is full of evidence that the company’s negotiating position remained unchanged both before and after the lockout.

But in Friday’s ruling, the D.C. Circuit rejected the company’s arguments, saying of the disputed email that “a reasonable factfinder could conclude that the company’s proposal to the union regarding health care was unclear.”

“The email fails to illuminate whether the company was proposing any or all of its various alternative health care plans, which differed from the existing health care plan under the 2005 collective bargaining agreement,” the board said.

The appellate court also declined to rule on another argument posed by Alden Leeds — that even if the lockout was unlawful, the board was wrong to not allow the company to try to establish in a separate proceeding that its backpay liability ended on the date the lockout was initiated. The panel said the issue wasn’t raised before the NLRB.

The union had intervened in the appeal to side with the board.

As part of the case, the board had filed a petition with the D.C. Circuit for enforcement of its 2011 order — a request the appellate court on Friday granted.

“This ruling sent a message to employers to be very careful and specific in how they word their last, best and final offer that needs to be accepted by a union to avoid a lockout,” Patricia McConnell of Meyer Suozzi English & Klein PC, an attorney for the union, told Law360 Monday.

McConnell noted that the locked-out workers, most of whom are not well-paid, were out of work for about eight months before an order was issued that they be reinstated. As a result of Monday’s ruling, they would be paid for those months they were out of work if their employer has the means to pay them, an amount that could top $2 million once interest is factored in, according to McConnell.

Meanwhile, Leeds’ appellate counsel Joseph B. Fiorenzo of Sills Cummis & Gross PC said Monday that “we are disappointed with the ruling and are considering further options for challenging what we consider to be an unjust result.”

“We believe the Court of Appeals’ determination failed to take into account the extensive record that [Alden Leeds] acted properly,” Fiorenzo said.

Circuit Judges David S. Tatel, Douglas H. Ginsburg and Harry T. Edwards sat on the panel for the D.C. Circuit.

Counsel for Leeds was not immediately available for comment.

Leeds is represented by Joseph B. Fiorenzo of Sills Cummis & Gross PC.

The NLRB is represented by Jeffrey W. Burritt, John H. Ferguson, Linda Dreeben and Robert J. Englehart.

The union was represented by Patricia McConnell of Meyer Suozzi English & Klein PC.

The case is Alden Leeds Inc. v. NLRB et al., case number 11-1267, in the U.S. Court of Appeals for the District of Columbia.

–Editing by Patricia K. Cole.