Employer must pay medical premiums for strikers


On Feb. 23, in a 2-to-1 decision with Acting Chairman Miscimarra dissenting, the National Labor Relations Board ruled that an employer had to continue health insurance premiums during a strike.

The issue before the NLRB was whether the National Labor Relations Act required the employer, after contract expiration, to provide employer-paid medical benefits to employees not performing work.

It has been firmly established for more than 50 years that an employer is not required to finance a strike by paying wages for work not performed, and that wages include "health insurance premiums." Despite this clear caselaw, the NLRB two-person majority overstepped its bounds and engaged in a dubious interpretation of the expired collective bargaining agreement, ruling that the employer was required to continue paying the premiums.

In its overreaching contract interpretation, the NLRB ignored language stating that benefits would only be provided to "employees covered by this Agreement." Note that the contract was expired and the individuals were on strike. The board majority also ignored language that defined the term "employee" to mean a "person who performs work for the company." The individuals on strike were clearly not performing work for the company.

Dissenting Member Miscimarra stated, "The majority could not point to a single case in which the Board has found that an employer violated the Act by withholding medical benefits from striking active employees."

The NLRB majority used its decision-making power to weigh in favor of the union, which lacked the bargaining power of the company. This also violates clear U.S. Supreme Court precedent.

Member Miscimarra quoted the U.S. Supreme Court: "Our labor policy is not presently erected on a foundation of government controls of the results of negotiations ... Nor does it contain a charter for the National Labor Relations Board to act at large in equalizing disparities of bargaining power between employer and union."

For a complete analysis, I recommend reading the chairman's brilliant dissent, which can be found at this link.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.


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