The new National Labor Relations Board (“NLRB” or “Board”) reversed another Obama Board decision on Friday. In Raytheon Company, 365 NLRB No. 161 (December 15, 2017), the Board returned to long standing precedent that the question of whether an employer has made a “change” should take into consideration the employer’s standing practices. The Obama Board had rejected that interpretation in E.I. du Pont de Nemours, Louisville Works, 355 NLRB 1084 (2010), when it held that because a practice was not set forth in the parties’ collective bargaining agreement, the employer could not continue to exercise the practice after expiration of the agreement. The new NLRB disagreed, finding the DuPont decision inconsistent with the long-standing “commonsense” definition of what is actually a “change” in employees’ terms and conditions of employment. Accordingly, Raytheon was free to make its usual adjustments to health benefits as it had in prior plan years. It was not required to provide the union with notice and an opportunity to bargain the practice simply because the agreement expired.
In Dunderdale v. United Airlines, the employee suffered from a back injury that prevented him from performing any heavy lifting. The employer assigned him to a light duty position – sitting at a computer scanning bags as they went by. Several years later, in response to employees’ requests, the employer included the position in the seniority bidding system under the applicable collective bargaining agreement. The disabled employee lost the light duty position through bidding based on seniority. Is that an ADA violation?
The court in this case held that an employer is not required to maintain positions it used in the past to provide reasonable accommodations. The employer may eliminate the job, for legitimate business reasons. Here, the employer legitimately included the position in its seniority bidding system, a system it had consistently and reliably applied under the CBA. The employer’s past practice of reserving the position for injured workers did not require them to continue doing so in perpetuity.
Whether the parties to a collective bargaining agreement (“CBA”) agreed to arbitrate arbitrability (i.e. whether an issue is subject to arbitration at all) was the key issue ConocoPhillips, Inc. v. Local 13-0555 United Steelworkers In’tl Union, No. 12-31225 (5th Cir. Jan. 30, 2014). After an employee tested positive for drugs, the employer terminated him pursuant to its zero tolerance drug policy. The union filed a grievance, alleging wrongful discharge. The CBA specifically excluded from arbitration an employee’s discharge for a positive drug test, but it allowed related issues to go forward. Despite the CBA language, the arbitrator decided he had the authority to decide arbitrability and that wrongful discharge for a positive drug test was subject to arbitration. Ultimately, he ruled against the employer. The employer appealed to federal court, seeking to vacate the arbitral award. The court held that the union failed to meet its burden by clear and convincing evidence that the parties agreed to have an arbitrator, and not a court, decide the threshold question of arbitrability.
The presumption is that parties have not agreed to submit arbitrability to an arbitrator, and an agreement’s silence or ambiguity on the issue is not enough to rebut the presumption. The takeaway is that employers can carve out issues they do not want to submit to arbitration, including whether a court or an arbitrator gets to decide which issues are subject to arbitration. As a best practice, an arbitration agreement should expressly state the terms of the parties’ agreement on the threshold issue of arbitrability.