Major League Umpires Blow Call:

No Recourse For Reinstatement Under NLRA

Major League Baseball umpires are paid to make judgment calls on a nightly basis. However, in what may be the biggest blown call of their careers, twenty-two of the current sixty-eight major league umpires may be facing the unemployment line on September 2. Union-wide speculation over a lock-out and mass firings following the December 31 expiration of the current collective bargaining agreement between Major League Baseball and the Major League Umpires Association pressured the umpire's union into ill-advised labor relations tactics. Without the threat of a strike -- the current labor agreement provides that "there shall be no strike nor other concerted work stoppage"-- the union, through alternative means, sought to swiftly bring baseball owners to the bargaining table to negotiate and sign a new labor agreement. Ump Battle in Hands of NLRB, Chicago Sun-Times, August 4, 1999. Thus, on July 14, at the direction of union leadership, 56 members of the Major League Umpires Association tendered letters of resignation effective September 2 to achieve their goal.

Counterattacking these actions, on July 23 Major League Baseball announced that it had hired 25 replacement umpires effective September 1 to officiate games in addition to the 12 umpires who had not tendered letters of resignation. Thereafter, 22 umpires were informed that their resignations had been accepted. Sensing occupational peril, the 22 umpires attempted to rescind their resignations but were informed by Major League Baseball officials that there positions had already been filled.

On August 3, the umpire's union filed unfair labor practice charges against Major League Baseball's American and National leagues in the New York office of the National Labor Relations Board. The main charge alleges that the team owners were "unlawfully discharging" the 22 umpires as a result of their "concerted activities" to advance union goals. Murray Chass: Umpires File Labor Charges Over Their Lost Jobs, The New York Times, August 4, 1999 This charge was summarized by Susan Davis, the umpires' attorney, who stated "[i]t is illegal to punish people who stood up for their union and in a retaliatory manner pick and choose who you chip... They went one by one and picked them off." Mark Asher: Umpires Charge Unfair Labor Practice, The Washington Post, August 4, 1999 at D1.

As a result of the union's filing, the NLRB's New York regional director has undertaken an investigation to determine if the union's unlawful discharge claim has any merit. If the charge is found to have merit, the NLRB could seek a court order forcing Major League Baseball to take back the 22 umpires. However, in order for that to happen, the NLRB, and ultimately the courts, must find that the acceptance of an employee's voluntary resignation stands as an unlawful discharge. That seems unlikely as there is no support for this contention under the National Labor Relations Act or judicial decisions.

The union's stance is premised on the statutory protections of the National Labor Relations Act §§ 7 & 8(a)(1), 29 U.S.C. §§ 157, 158(a)(1). Section 8(a)(1) states that it shall be an unfair labor practice by an employer "to interfere with, restrain, or coerce employees in the exercise of rights guaranteed under section [7]." Section 7 states that employees shall have the right to engage in "concerted activities for the purpose of collective bargaining[.]"

Tying these sections together, the union's only possible contentions are that the 22 umpires should be given their jobs back because: (1) by living in fear that they would be locked out or fired at the end of the current collective bargaining agreement without any hint that negotiations for a new labor contract were forthcoming, employment conditions were such that the umpires were forced to take these actions and were, thus, constructively discharged; and (2) the league's refusal to allow the umpires to rescind their resignations effectively served as a discharge. As such, their argument follows, these "discharges" served as an interference or restraint on the umpires' rights to pressure baseball owners into negotiations for a new collective bargaining agreement and was thus an unfair labor practice and an unlawful discharge under §§ 7 and 8(a)(1).

Turning first to the constructive discharge argument, case law has clearly held that in order for a court to order the reinstatement of an employee for unlawful discharge under §§ 7 and 8(a)(1), there must be an actual discharge of an employee. See NLRB v. Ingram, 273 F.2d 670 (5^th Cir. 1960). In fact, to set forth an unlawful discharge claim under the NLRA, similar "to a common law action for wrongful discharge, the plaintiff has the burden of proving, not that he did not like the terms and conditions of employment or his treatment by his employer, but that he was wrongfully discharged." Id at 672. Moreover, even if the employer were to engage in other forms of unfair labor practices, the remedy of reinstatement cannot be sought unless there is an actual discharge by the employer. See id at 672-73.

These legal principles are clearly illustrated in NLRB v. Cosco Products Company. 280 F.2d 905 (5^th Cir. 1960). In NLRB v. Cosco Products Company, an employee resigned after he was demoted and transferred to a less pleasant job for what he alleged were his union activities. The employee claimed that his unpleasant working conditions served as a unlawful constructive discharge and he sought reinstatement The court determined that unpleasant working conditions could not serve as the basis of an unlawful discharge claim because "there is no basis in the statute or otherwise in law for the idea of a constructive discharge." Id at 910. The court further held that a person cannot quit and secure reinstatement on a claim that he was discharged merely because a person does not like the conditions existing on his job. See id. While the court held that the employer may have been engaging in other forms of unfair labor practice by making working conditions unpleasant for the employee based on his union activities, no discharge occurred to warrant reinstatement by the court.

These facts are analogous to the umpires' unlawful discharge claim. The fact that the umpires' working conditions were unpleasantly clouded by an uncertain future is not legally sufficient grounds for an unlawful discharge claim. The umpire's had to have been actually discharged by Major League Baseball for a valid unlawful discharge claim which is not the case as the umpires voluntarily resigned. While other unfair labor practice charges have been brought against Major League Baseball for its failure to negotiate with the union, only an unlawful discharge could result in reinstatement which the umpires' undesirable working conditions is not.

Turning now to the umpires' attempt to rescind their resignations, there is no legal basis to transform Major League Baseball's refusal to allow the rescission of the umpire's resignations into an unlawful discharge. Simply put, by resigning, the umpires made their beds once their resignations were accepted because an unlawful discharge claim is predicated on an employer's decision to impel and effectuate the end of an employer-employee relationship, not vice versa. See LTV Electrosystems, Inc. v. NLRB, 408 F.2d 1122 (4^th Cir. 1969).

In LTV Electrosystems, Inc. v. NLRB, a number of automobile manufacturer employees packed their tools and one by one indicated to management that they were ending their employment in protest to the firing of three fellow union members. Soon thereafter, the resigning employees signed termination notices and management hired replacement employees. Afterwards, the resigning employees sought reinstatement from their former employers but were informed that their positions had already been filled resulting in an unlawful discharge claim under the NLRA. The court refused to order reinstatement holding that there was no discharge because it was the employees, not the employers, who manifested an intent to end the employee-employer relationship. See id at 1127. Thus, the court held that once the employees expressed their intentions to resign, the employer was free to hire replacement employees and had no obligation to reinstate the resigning employees.

Despite this holding, the umpires claim that Major League Baseball is obligated to allow the umpires to rescind their resignations and reinstate them or face unlawful discharge claims under the NLRA. However, this stance is legally flawed. The umpires are the ones that manifested an intent to end their employment with Major League Baseball. Major League Baseball merely accepted their resignations and hired replacement umpires. The request to rescind the resignations came after the vacant umpire positions had been filled and the resignations had been accepted. Thus, Major League Baseball did not impel the end of the employee-employer relationship. The umpires effectuated the end of the relationship which leaves them no recourse for reinstatement from the NLRB or the courts.

In conclusion, the Major League Umpires Association led their members down an ill-fated path by suggesting that they resign to force the owners to the negotiation table. Public opinion was not on their side and the law offers them no solice. What they believed was fair, was actually foul. Come September 2, 22 current umpires must hope that Major League Baseball extends them a reprieve and allows them to continue as umpires because the NLRB will not seek nor will the courts order reinstatement. If a reprieve is not granted, for the first time in Major League Baseball history, it will be the umpires and not the players that strike out.