The NLRB Has You Covered…By The Contract 2019-09-11T13:55:26-06:00

Posted on September 11, 2019

In another stunning and sweeping decision, The National Labor Relations Board (“NLRB” or “Board”) has overturned the “clear and unmistakable” waiver test and concluded that employers may make unilateral changes to terms and conditions of employment “covered” by an existing collective bargaining agreement.

For decades, employers had negotiated lengthy “management rights clauses” into collective bargaining agreements only to have the NLRB strike down a change made by the employer by finding that the union did not “clearly and unmistakably” waive its right to bargain about the change. For example, if an agreement indicated that an employer could issue and amend policies and rules, the NLRB would usually find a violation of National Labor Relations Act (“NLRA” or “Act”), unless the Board found that waiver “sufficiently specific” to encompass the change. In other words, employers would negotiate what they believed was an effective waiver, only to have their bargain disrupted by the union filing an unfair labor practice charge.

Under the new test, employers will be able to rely on a defense that the objected-to change was covered by the language of the collective bargaining agreement. In such cases, the Board will now “give effect to the plain meaning of the relevant contractual language” and find a change covered if it “falls within the compass or scope of contract language that grants the employer the right to act unilaterally.”

The significance of the NLRB’s decision is best encapsulated by dissenting Member McFerran’s characterization of it: “The implication of the majority’s new standard is clear: If a management-rights provision in a collective bargaining agreement is sufficiently general, it will permit an employer to act unilaterally with respect to any specific term or condition of employment that plausibly fits within the general subject matters of the provision.”

MV Transportation, Inc., 368 NLRB No. 66 (September 10, 2019).

NLRB Serves Up An Epic Ruling For Employers 2019-08-15T10:20:02-06:00

Posted on August 15, 2019

By Patrick Scully

In its first significant decision applying the Supreme Court’s holding in Epic Systems v. NLRB, 584 U.S. ____, 138 S.Ct. 1612 (2018), the National Labor Relations Board (“NLRB” or “Board”) ruled that a restaurant owner lawfully compelled its employees to sign a revised mandatory arbitration agreement.

The employer, an operator of Latin-themed restaurants in the Houston area, required its employees to sign a revised arbitration agreement prohibiting them from opting into a class or collective wage and hour action. The employer issued the revised agreement because several employees had opted into such a wage action and the employer’s prior arbitration agreement only prohibited employees from filing class or collective actions.

The Board noted, in light of Epic Systems, that it was simply not unlawful under the National Labor Relations Act (“Act”) for an employer to require its employees to waive their right to file or opt into class or collective wage and hour actions. Accordingly, it was not unlawful for the restaurant owner to insist on its revised agreement as a condition of employment. Although it was clear that the employer imposed the new agreement in response to employees participating in the wage and hour action, the NLRB reasoned that the employer did not retaliate, because the new agreement did not actually restrict any activity protected by Section 7 of the Act.

Dissenting Board Member McFerran took issue primarily with this last point, noting that the NLRB has historically found that a facially valid work rule must be struck down if it is promulgated in response to “protected” (Section 7) activity. Member McFerran disagreed with the majority that this precedent only applied to rules that imposed restrictions on union or other protected activity. By suggesting that the Board’s decision “departs from Board precedent without explanation”, the dissent provided a recipe for the restaurant owner’s employees to appeal the decision.

Cordua Restaurants, Inc. 368 NLRB No. 43 (August 14, 2019)

NLRB Body Blow: Union’s Lobbying Not Chargeable To Nonmember Employees 2019-03-01T17:45:58-07:00

Posted on March 1, 2019

By Patrick Scully

The National Labor Relations Board (“NLRB” or “Board”) has ruled that unions cannot charge nonmember represented employees for union lobbying expenses. Under the Supreme Court’s decision in Communication Workers v. Beck, 487 U.S. 735 (1988), nonmember represented employees can only be charged “representational fees” in states that permit ‘union security’ (compelled payment of dues as a condition of employment). In other words, employees who do not wish to join a union can be prevented from becoming so-called ‘free riders’ because the union that represents them can collect fees “necessary to performing the duties of an exclusive representative of the employees in dealing with the employer on labor management issues.” On March 1, 2019, The NLRB concluded that, under the Beck standard, a union representing nurses in Rhode Island and Vermont could not charge nonmember nurses for the union’s lobbying efforts on seven bills. In short, the Board found that the fact that some of the bills related to employment issues did not demonstrate that the lobbying was necessary for the union to perform its statutory function as the employees’ representative. In a signature dissent low on case law and high on righteous indignation, Member McFerran argued that a union should be able to prove how certain lobbying might be “germane” to collective bargaining. This legal argument was previously considered and rejected by the District of Columbia Circuit Court Appeals, consistent with established Supreme Court precedent.

United Nurses and Allied Professionals (Kent Hospital), 367 NLRB No. 94 (March 1, 2019)

Best Practice Derailed by the Details 2018-08-30T10:31:05-06:00

Posted on August 30, 2018

By James Korte

The EEOC has suggested that a manager’s performance evaluation should include the manager’s compliance with Equal Employment Opportunity (EEO) laws. More information. Keep in mind that such a grading system must be applied in a way that does not itself discriminate against employees based on their protected characteristics. In a recent District Court case, an employer withheld a manager’s discretionary bonus because he had fired an employee on medical leave, without receiving approval from labor relations. The discretionary bonus program rewarded full-time managers on a number of factors including compliance with the employer’s policies. Terminating the employee without consulting Labor Relations violated policy, but the employer explained the withheld bonus to the manager as caused by the Caucasian manager firing an African American employee.

The manager sued the employer, alleging discrimination, and the case will have to proceed to trial; all because of the employer’s injudicious explanation of the manager’s violation of policy. Even when employers follow suggested best practices – by, e.g., rating managers on policy compliance – in implementing the practice, the details matter. In this case, a little better explanation of the purpose of checking with labor relations before terminating an employee would have gone a long way.

The Case is Trost v. UPS Ground Freight, Inc., No. 17-C-4415 (N.D. Ill. Aug. 27, 2018).

Facebooking Misappropriated Employer Form Is Not Protected Activity 2018-07-17T14:41:32-06:00

Posted on July 17, 2018

By Chance Hill

On June 11, 2018, the National Labor Relations Board (Board) Division of Advice applied the Board’s new Boeing standard for assessing employer policies. The Division advised that an employer did not violate the NLRA when it discharged a pro-union employee who Facebooked a form that was “improperly taken” from a team leader’s desk. Kumho Tires, 10-CA-208153 (July 13, 2018)

The employer was in the middle of a union-organizing drive and had been fighting rumors that it paid managers bonuses to fight the union. One employee took a bonus-request form from a team leader’s desk. The form seemed to be asking for a bonus for the team leader’s anti-union efforts. The employee gave a copy of the form to a second union supporter. The second union supporter posted the form to a private, union supporting Facebook group. The employer discharged the second union supporter for violating the employer’s social media policy.

Under the recent Boeing standard, if the rule is not even reasonably interpreted as restricting NLRA rights, the rule is lawful. Here, the work rule ordered “Maintain the confidentiality of the Company’s trade secrets and private or confidential information,” and it called out “internal reports, policies, procedures, or other internal business-related confidential communications” as well as trade secrets. The Division advised that the work rule was lawful because it did not explicitly refer to employees, their terms and conditions of employment, or any other NLRA-covered communications. The Division also advised that, although the Facebooker was engaged in protected concerted activity, he forfeited that protection. Posting the documents was “such disloyalty” that it fell outside the NLRA’s protection. The union supporter knew that the form had been wrongly procured.

Note: Reason is enjoying a revival at the Board. But note also: If the employees had only repeated the information readily viewable on the Team Leader’s compensation form, and had not copied it, all their discussion about the form – including that the employer was paying bonuses and, besides, that the employer was rolling in cash and could afford to increase wages – would have been protected under the NLRA. Try to put confidential information away.

This blog post has been picked up by the Employment Law Daily Newsletter.

The DOL Can’t Always Get What It Wants 2018-07-06T10:27:56-06:00

Posted on July 6, 2018

By: Lindsay Hesketh

While investigating defendant La Piedad’s FLSA compliance, the Department of Labor subpoenaed, among other things, documents with the names and addresses of other businesses owned by defendant’s shareholders. La Piedad informed the DOL that it did not have responsive records. Rather than investigate that response, the DOL immediately moved for an order holding defendant in contempt. The district court rubber stamped the motion, granted it without a hearing, and didn’t hold the DOL to its burden of proof. On appeal, the Eighth Circuit admonished the lower court’s “misuse of the civil contempt power.” The court highlighted the DOL’s complete failure to meet its clear and convincing burden to show that defendant had custody or control over those documents and reversed the order. Acosta v. La Piedad Corp., No. 17-1845 (8^th Cir. July 3, 2018).

The courts continue to protect employers from government overreach, but consider the cost. Here the employer had to pursue its rights to the court of appeals, all because the DOL couldn’t be bothered to issue its subpoena to the shareholders themselves.

No More Splitting The Check For “Fair Share” Public-Sector Union Fees 2018-06-27T14:57:00-06:00

Posted on June 27, 2018

By Alyssa Levy

On June 27, 2018, the U.S. Supreme Court overturned a 41-year-old standard set in Abood v. Detroit Board of Education. Under Abood, when a union became the exclusive bargaining representative for a group of public employees, those public employees who chose not to belong to the union could still be required to pay their “fair share” of union fees to cover the cost of collective bargaining. Now, workers may choose not to be members of the union and not pay anything to support the union. The case is Janus v. AFSCME.

In a 5-4 vote, the Court found the requirement to pay “agency” fees violates public workers’ First Amendment free speech rights by forcing them to fund union speech (i.e. collective bargaining). Even though agency fees may go towards collective bargaining on behalf of both union and nonunion members, workers can no longer be forced to pay for it.

So what does this mean for public-sector unions? Less financial stability. Public employees now will have to specifically consent to make payments to their unions, which is expected to reduce the funds available to public unions.

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