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.
By Bill Wright
The NLRB chose not to interfere with collegiate football. Northwestern University, Case 13-RC-121359 (August 17, 2015). Collegiate teaching assistants, though, are another thing. In Columbia University, Case 02-RC-143012 (August 23, 2016), the Board reversed another established precedent to assert that teaching assistants (“TAs”) are “statutory employees” and may choose to have union representation. The Board majority’s reasoning, roughly, was that the NLRA covers any employee (except managers), unless there are good reasons to exclude them; and there is no empirical evidence to justify excluding TAs. As the dissenting Board member pointed out, all those NLRB decisions we’ve been blogging about now apply in the college setting: TAs may use strong and abusive language about their supervisors in public media posts; college investigations (e.g. into sex harassment of students) might not be kept confidential; and colleges won’t be able to enforce vague civility rules like “collegiality.” Many public universities already have state-authorized collective bargaining, but the liberal arts college experience might be forever altered. Too bad we can’t gather empirical evidence from the future.
By Doug Towns & Lori Phillips
In Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015), a divided three-member panel of the NLRB ruled that an employer’s blanket rule prohibiting workplace recording of conversations, phone calls, or images with a camera or other recording device, such as a smartphone, without prior management approval was unlawful. The Board concluded that Whole Foods’ “no recording” rule could reasonably be construed by employees to prohibit Section 7 activity and is unlawful. The Board rejected Whole Foods’ argument that the rule was necessary to preserve employees’ privacy interests and to prevent disclosure of confidential business strategy and trade secrets. The case is a reminder that the Board will closely scrutinize blanket rules—in unionized or non-unionized environments—that arguably prevent or chill employees from talking about matters that could implicate a union or otherwise touch on other terms and conditions of employment.
By Andy Volin
The NLRB says sending a worker for a drug test is the same as disciplinary action and the worker gets to be accompanied by a Union representative. Manhattan Beer Distribs. LLC, 362 N.L.R.B. No. 192 (August 27, 2015). In this case, a delivery worker had an workplace accident and, the next day, came to work with glassy, bloodshot eye and “reek[ing] of the smell of marijuana.” Not surprisingly, the boss demanded that he take a drug test. The worker refused because he could not locate a union steward to accompany him. The company fired him for refusing to take the test.
The NLRB ruled that the worker had the right to union representation during the test, and that firing him for refusing to take the test in those circumstances violated his rights to union representation. In doing so, the NLRB ruled that the drug test should be considered the equivalent of a disciplinary investigation, creating the right to representation. And while the worker could not demand an indefinite delay to the test, insisting on an immediate test violated his rights. Therefore, his termination for refusing to take the test also violated his rights under the NLRA.
Employers will have to update their drug testing procedures and account for this additional delaying tactic.
By Bill Wright
The NLRB has ruled on the representation petition for Northwestern University student football players. You’ll remember, last year, the NLRB’s Regional Director decided that student athletes who received grant-in-aid athletic scholarships at Northwestern University were actually employees of the university and that they could petition for union representation. The issue went up to the NLRB and now the NLRB has . . . decided not to play. The Board avoided the question of whether student athletes might or might not be employees. Instead, the Board announced that it would not further the goal of labor stability to exercise its jurisdiction in this case, at this time. It doesn’t have jurisdiction over teams in state-run schools and the NCAA itself exercises a lot of control over participating teams. So, the Board declines to exercise its jurisdiction. There will be no official bargaining between the University and its footballers, and, moreover, the Board avoids years of litigation, followed by, most likely, a stinging rebuke by the courts. Northwestern University and College Athletes Players Association, 362 NLRB No. 167 (August 17, 2015).
If the NLRB has a consistent adversary, it is common sense. And so, it was a bad sign for the NLRB when the District of Columbia Circuit Court of Appeals began its review of a recent NLRB Order with the following line: “Common sense sometimes matters in resolving legal disputes.” The NLRB had tried to strike down AT&T’s common sense prohibition against customer-facing employees wearing T-shirts with the word “Inmate” on the front and “Prisoner of AT$T” on the back. The NLRB found that the message on the shirts was protected and that AT&T’s prohibition was not saved by “special circumstances”. The NLRB contended that AT&T could show no actual customer fear or harm to customer relations, and that because AT&T had permitted employees to wear other “unprofessional” attire, it could not object to the “Inmate/Prisoner” shirts.
On review, the Court quickly dispatched the NLRB’s analysis, noting that the “special circumstances” exception includes “protecting the employer’s product” and “maintaining a certain employee image.” The Court explained that the Board itself recognized in the past that, if an employer reasonably believes that union apparel may harm the relationship with customers or an employer’s public image, the apparel may be lawfully prohibited. The Court found that one common sense question trumped the NLRB’s arguments: “What would you think about a company that permitted its technicians to wear such shirts when making home service calls?” Southern New England Telephone Company v. NLRB., No. 11-1099 (D.C. Cir. July 10, 2015).
By Bill Wright
Another NLRB bombshell. The NLRB used to “defer” statutory issues to arbitration. For example, if an employer and union arbitrated the issue of an employee’s discharge for good cause, the NLRB would not then prosecute an unfair labor practice (“ULP”) charge over whether the discharge was because of protected concerted activity, unless the loser at arbitration could show the arbitrator had ignored the possible ULP.
The NLRB was dissatisfied with this arrangement; it was just too hard to show that the arbitrator had ignored a possible ULP. Maybe the arbitrator considered it and just didn’t mention it in the award. Now, the NLRB will defer to the parties’ arbitration only if the party wanting deferral can show the parties explicitly authorized the arbitrator to consider ULPs, the arbitrator actually considered the ULP, and the arbitrator came reasonably close (according to the NLRB) to deciding the issue correctly. If you can’t show all this, the NLRB may explode your litigation costs by pursuing a ULP on the same issues (or related issues) already decided in your arbitration. Fair warning: make sure the arbitrator is explicitly authorized to consider ULPs and that the arbitrator addresses them, or be prepared to fight the issue again with the NLRB. Babcock & Wilcox Constr. Co., 361 NLRB No. 132 (Dec. 15, 2014).
By Bill Wright
A new NLRB matter demonstrates the importance of having bilingual managers for a bilingual staff. The employer addressed union members in the run up to a decertification election. The script called for the COO to warn the employees: “. . . we believe the Union will push you toward a strike. Should this occur, we will exercise our legal right to hire replacement workers . . . .” A Spanish speaking Payroll Administrator translated on behalf of the employer. After the reference to a possible strike, the translation came out something like: “ . . . we will replace you with legal workers.” No one in management caught the issue and tried to correct it. In context, the NLRB considered this a threat to report the Spanish-speaking workers to immigration officials and to question their authorization to work in the U.S. Consequently, the decertification election had to be re-run. Labriola Baking Co., 361 NLRB No. 41 (September 8, 2014). (For another example of an employer’s bilingual fail, see our post No Habla Arbitration.)
Ya es tiempo que aprendemos español.
Yesterday, the Supreme Court took a swipe at public sector compulsory unionism. In doing so, the Court took a slice out of decades of Supreme Court jurisprudence and suggested a future re-thinking of agency fees in the public sector. In Harris v. Quinn, No. 11-681 (June 30, 2014), Illinois tried to facilitate home health care for those most in need and least able to afford it. The State created minimal guidelines for practitioners to qualify for the program, but otherwise the practitioners were hired, evaluated, and fired by their individual patients. Later, Illinois passed a law deeming the practitioners to be State employees for one purpose only: to have a single bargaining representative for matters related to the State. The practitioners sued, claiming that this compulsory unionism violated their Constitutional rights to association and free speech because it forced them to pay dues or agency fees to fund a union whose bargaining and political activities contradict their own beliefs and tenets. The Supreme Court struck down the Illinois statute, concluding that Illinois was not the practitioners’ true employer, and therefor could not force them to be members or pay agency fees to the union.
The issue is remarkably narrow and not likely to recur. However, most of the Supremes’ opinion addresses the larger issue of whether a public employer ever can require its employees to pay their “fair share” of union costs (often the equivalent of union dues) associated with collective bargaining and representation. According to the majority decision, the Supreme Court got it wrong forty years ago in Abood v. Detroit Board of Education, 431 U. S. 209 (1977) where it embraced agency fees for public sector unions. While the Court did not overturn Abood (because it did not need to do so in this case), the Court’s analysis signals the eventual demise of Abood and an end to compulsory agency fees in the public sector. This otherwise limited decision will produce a flurry of litigation as anti-union forces fashion the perfect case to finally undo Abood.