The National Labor Relations Board has dismissed charges that FairPoint Communications broke the law by walking away from negotiations with two unions representing roughly 1,800 employees before they went on strike in mid-October.
The news is a blow to the International Brotherhood of Electrical Workers and the Communications Workers of America, who represent FairPoint workers in Maine, New Hampshire and Vermont. But it does not change the unions’ resolve, said Peter McLaughlin, business manager of the IBEW Local 2327 in Augusta and chair of the unions’ bargaining committee. He said the unions plan to appeal the decision, a process that could take months.
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If the appeal is unsuccessful, FairPoint could lawfully begin hiring workers to permanently replace the striking employees.
McLaughlin called Monday’s NLRB decision “disappointing,” but “not surprising.” He said U.S. labor law favors employers over employees.
The company issued a brief statement saying the NLRB decisions prove “that there was no basis to the allegations that FairPoint bargained in bad faith or that its implementation of its final contract proposal was unlawful.”
Union officials said the NLRB’s dismissal of the unions’ complaints will have no impact on the ongoing strike, which began at midnight Oct. 16 when FairPoint employees in northern New England, including roughly 800 in Maine, walked off the job.
“Today is no different than yesterday or the day before,” McLaughlin said Tuesday. “We went into this knowing that the NLRB charges were part of our strategy if they got any traction, but we were under no delusions thinking that we’d put all our eggs in that basket.”
McLaughlin said similar cases before the NLRB have been known to take years to play out, and the decision to go on strike was “taking the fight into our own hands.”
The unions and Charlotte, North Carolina-based FairPoint began negotiating new contracts in April. The company is seeking $700 million in concessions, mostly by freezing pensions, eliminating health coverage for retirees and asking employees to contribute roughly 20 percent to their health care costs. The unions offered $200 million in concessions. Neither side budged and negotiations broke down after the existing contracts expired Aug. 2. FairPoint declared in late August that the parties had reached an “impasse,” a technical term in labor law that allows the company to impose its final contract offer on the unions.
On Aug. 28, the IBEW and CWA filed identical complaints with the regional NLRB office in Boston that accused FairPoint of engaging in unfair labor practices when it declared the “impasse,” and for failing to provide information to the unions that was necessary for the negotiating process.
Elizabeth Gemperline, acting regional director for the NLRB in New England, wrote in a dismissal letter dated Dec. 29 that an investigation had turned up no proof that the company had violated the National Labor Relations Act or done anything to frustrate negotiations.
“To the contrary,” Gemperline wrote, “the investigation disclosed that the parties had reached a good-faith impasse on Aug. 28, 2014, at which time the employer implemented its last, best and final offer.”
The unions can appeal Gemperline’s decision to the NLRB’s general counsel in Washington, D.C. The deadline for an appeal is Jan. 12, 2015.
Although Gemperline’s dismissal will not affect the ongoing strike, her decision could have implications for the strikers.
There are two types of strikes: those over economic issues and those over unfair labor practices. If the NLRB had found that the company had violated labor laws, then the walkout could be labeled an unfair labor practices strike, a designation that would make it unlawful for the company to permanently replace striking workers. There’s no such restriction on the company if the strike is deemed to be the purely economic variety.
Gemperline’s decision, however, doesn’t open the door for the company to immediately hire permanent replacement workers because the unions plan to appeal the ruling.
“We can still say it’s an NLRB strike and the company can say, ‘No, it’s not,’ ” McLaughlin said. “And so if the company replaced us permanently, they would be doing so at their own peril because the decision could be reversed.”
Since the strike began, the company has relied on an army of temporary contract workers to handle customer service issues and maintenance of the company’s telecommunications network. The company has been plagued in recent weeks by reports of poor customer service and extended delays in responding to customer requests.
U.S. Rep. Chellie Pingree, who represents Maine’s 1st Congressional District, wrote a letter to FairPoint CEO Paul Sunu on Dec. 19 urging him to negotiate with the unions and bring the strike to an end. Sunu responded in a letter that said the company would not back down.
The two NLRB complaints dismissed Monday – one filed by the IBEW and the other by the CWA – were among six the unions have filed since June.
The NLRB also dismissed two complaints Sept. 30. One charged the company with bargaining in bad faith and with failing to provide information the unions requested as part of the contract negotiations, and the other accused the company of assigning bargaining unit work to managers. The unions have appealed both decisions to the NLRB in Washington.
The unions filed another complaint Sept. 3 that accused the company of selectively enforcing a social media policy in response to employees using various social media platforms for union activities. The unions withdrew that complaint Dec. 16.
A final complaint concerned the company’s decision to stop allowing the processing of payments to bargaining unit employees out of a so-called “working family” account. Gemperline also dismissed that complaint Monday. The unions do not plan to appeal that decision.
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