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RG&E driven to stand by its decision

Four trucks from Rochester Gas & Electric work on power lines along a road in Canandaiuga in this Associated Press file photo.

Rochester Gas & Electric is appealing a federal order resulting from a dispute with eight employees after it stopped allowing them to take RG&E vehicles home.

Attorney James S. Gleason, of the Binghamton law firm Hinman, Howard & Kattell, LLP, who represents the utility, claims the National Labor Relations Board, which issued the order Aug. 16, uses different standards than the courts.

He has filed an appeal with the U.S. District Court of Appeals for the District of Columbia in Washington, D.C. where the board is headquartered.

The case was brought against RG&E after the union, Local Union 36, International Brotherhood of Electrical Workers, AFL-CIO, filed a charge in June 2006, alleging RG&E violated sections of the National Labor Relations Act with respect to collective bargaining.

The complaint alleges RG&E, on Jan. 10, 2006, discontinued its practice of allowing certain low-voltage trouble maintenance and repair employees to take their service vehicles home after work and that the company’s decision is a mandatory subject of bargaining because it relates to wages, hours and other terms and conditions of employment.

RG&E admits discontinuing the policy, but denies its decision is subject to mandatory bargaining.

The union further alleges its March 7, 2006 request for information was denied regarding which employees had the benefit, a company analysis of the cost, a list of non-unit employees with the benefit and whether the company announced its restriction to any non-unit employees.

According to NLRB documents, Richard Frank, RG&E’s manager of Regional Operations, testified at a Feb. 11, 2008 hearing before Administrative Law Judge Wallace H. Nations in Buffalo, that the low-voltage group of employees works on commercial and residential meter and service work, doing a lot of meter installations and change-outs.

He said about 40 percent of the work is emergency-related with emergency situations arising out of storms or employees calling in sick. He said employees who are called in for an emergency drive the company vans to its West Avenue facility to pick up materials and head to the worksite.

“On what Frank termed ‘rare’ occasions, the employee might be dispatched to a worksite without first going by the West Avenue facility,” the NLRB order says. Frank noted garaging the vehicles would save the company money. He was also concerned that having company trucks parked at employees’ homes presented some sort of negative public reaction.

One employee, Alford Smith, testified he considered the use of the vehicle to get to and from work as part of his compensation. Steven Parnell said he had been taking a vehicle home since 1990 and that the company withheld an amount from his pay to cover what the Internal Revenue Service deemed the value of the right to use the vehicle to go to and from work. The value was considered income.

Parnell told Richard Irish, union president, business manager and financial secretary, that employees were upset about the decision and that it meant they would have to get another vehicle or find some other means to get to work.

“This unilateral action was a violation of past practice,” Irish said in a Jan. 10, 2006 letter to Jay Shapiro, RG&E’s labor relations analyst.

Irish also told company officials, at one of three meetings with the union, that the cost of the decision to affected members was about $5,000 to $6,000 for transportation, but gave no details on how the figure was calculated.

The company disagreed the usage of its vehicles was a benefit. With respect to the union’s request for information, the company said it would provide “the information relevant to the matter,” but only supplied a list of jobs and unit personnel that have the benefit.

RG&E argued that the union waived its right to mandatory bargaining over unilateral changes by its agreement to the parties’ collective-bargaining agreement, but that allegation was removed by the NLRB.

Nations, however, ruled the company violated the National Labor Relations Act by failing to timely notify the union and give it an opportunity to bargain over the effects of discontinuing the benefit.

Nations, in his June 12, 2008 decision, further ruled the company was in violation by refusing to give the union the information it requested. He ordered the company to bargain with the union on the effects of its decision and to supply the information requested.

RG&E appealed to the National Labor Relations Board which last week affirmed Nations’s decision and ordered the company to comply.

The union’s attorney, James R. LaVaute, of the Syracuse law firm Blitman & King LLP, could not be reached for comment.

The union, on Tuesday, asked for clarifications about the decision and remedy, according to Michael J. Israel, acting regional director, Region Three of the National Labor Relations Board in Buffalo.

“We concluded there was an obligation to bargain over, not the decision itself, but the effects of the decision on the employees,” Israel said.

He also said RG&E is to pay each of the eight employees a monetary value of the vehicle benefit, which would be determined at the compliance stage, which may be affected by the company’s decision to appeal.

“There’s a rather significant difference in opinion between the courts’ view of the standard that needs to be applied and the NLRB’s so I don’t think the NLRB’s decision is surprising,” said Gleason.

He said the courts apply what is called a contract coverage standard while the NLRB applies a clear waiver standard.

Matthew D. Lahey of the Chicago firm Schiff Hardin LLP, in a March 2009 report to the American Bar Association, said contract coverage places an emphasis on the bargain already struck between parties and that a unilateral change allegation under the section of the Labor Relations Act cited, would be dismissed “where there is a contract clause that is relevant to the dispute.”

Lahey says under a “clear-and-unmistakable” waiver approach, the employer must show that the union waived its rights to bargain over the particular subject at issue.

“RG&E had the right, under the contract, to not have these guys take the trucks home,” Gleason said. “The basic facts were that these eight employees weren’t responding to emergency call outs so there was no purpose to take these trucks home.”

Israel said the NLRB does not adhere to the contract coverage standard, but looks at whether there has been a waiver.

“I think the differences in the standards are well defined and it’s ultimately probably going to be left to the U.S. Supreme Court to designate what the standard will be,” Gleason said.