By Nelson Cary and Lauren Sanders
Deducting paid time off (“PTO”) from employees for time spent on strike without their permission violates the NLRA, according to a memorandum from the NLRB’s Division of Advice. The memorandum, authored in 2016, was released earlier this month.
A company that operates ground handling and terminal services for several airlines in Philadelphia became embroiled in a union organizing drive. Apparently in connection with the union’s ongoing efforts, it organized several one-day strikes against the employer. During two of these three strikes, the employer had a new PTO policy in effect.
Some employees requested PTO for the day spent striking and others did not. However, the employer deducted a day of PTO from all striking employees’ leave banks regardless of whether the employee requested it. The employer did not ask the striking employee whether the employee wanted to use PTO, although employees were allowed to decline PTO for other types of absences.
The Division of Advice explained that when an employer (1) deducts its employees’ PTO without their permission and (2) cannot show it would similarly treat non-striking employees, a violation of Sections 8(a)(1) and (3) of the NLRA has occurred and a complaint should be issued.
It is important to remember that a memorandum from the Division of Advice is not the same as an NLRB decision. The Division of Advice provides guidance to the General Counsel and to Regional Offices about difficult or new issues in unfair labor practice charges. Thus, the “prosecutor” of ULP charges believed that the employer’s conduct was unlawful, but the NLRB would not necessarily agree. Indeed, in this case, the dispute was resolved prior to the NLRB deciding the issue.
In addition, it is not unusual for there to be a delay in releasing these memoranda. The NLRB does not release Advice memoranda that direct the issuance of a complaint until the matter has been resolved. Hence, the year or more that passed before this one was released.