Labor Law Update - NHRMA Conference · PCC Structurals, Inc. (2017) • NLRB overrules Specialty Healthcare & Rehabilitation Center (2011) • Reinstated community of interest test

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Labor Law UpdateNHRMA 2018

Kellis M Borek

VP Labor & Employment Services


Agenda

U.S. SUPREME COURT & LABOR1

NLRB DECISIONS & ADVICE MEMOS2

WHAT’S NEXT?3


US Supreme Court & Labor


Janus v. American Fed or State, County and Municipal Employees Council 31

Decided June 27, 2018

• “Agency fees” that public employers mandate their employees to pay to the unions that represent them are unconstitutional under the 1st Amendment

• “Compelled speech” vs “Free riders”?

• 5-4 decision in favor of employees

• Every state is a “right to work” state for public employers

• See: Archbright Keynote about public employer steps going forward


Impact of Janus

• Declined union membership

• Union political impact

• Shift to private sector organizing

• Right to work states increase


Pre-Janus

• New York Senate Bill 7509 (April 2018) provides a “free rider”:

– Only negotiation or enforcement of a CBA with public employer

– No representation during questioning, administrative proceeding or grievance

– Mandates that:

• employer notify union within 30 days of employee being hired

• provide employee name and address to union

• permit union to meet with employee within 30 days


Post-Janus Litigation

• National Right to Work Foundation is suing SEIUS Local 522 on behalf of William Hough, a Santa Clara Valley Transportation Authority worker

• Mr. Hough not want to participate in the labor organization but still had so-called “fair share” fees deducted from his paycheck and handed to the union.

• Class action status alleging conversion, unjust enrichment, unlawful seizure of property and First Amendment violations


Post Janus Legislation

• New York Executive Order No. 183 signed June 27, 2018

• “In New York, we say no way, no how to union busting”


Epic Systems Corp. v. LewisNLRB v. Murphy Oil

Decided 5-31-2018

• Mandatory arbitration agreements that require employees to waive their right to class actions are lawful under the NLRA


Post-Epic Systems

Cowabunga, Inc. v. NLRB

Everglades College, Inc. v. NLRB


Will Justice Kavanaugh Treats Employers Well?

• Employers may lawfully:

– Ban workers from wearing union T-shirts that said “inmate” and “prisoner of the company”

– Ban pro-union signs in employee cars as a form of picketing

– Prohibit hospitality workers from union demonstration by temporary walk-off


Unionization Statistics


Unionization 2017

18.10%

18.80%

21.30%

23.80%

11%

4. ALASKA

3. WASHINGTON

2. HAWAII

1. NEW YORK

NATIONWIDE


Unions Gain Election Wins

• Unions won 1,013/1,425 elections in 2017

• Despite wins, number of organized workers declined in 2017

• Unions continue to have more success with smaller units

• Different unions targeting operations for organizing


NLRB


NLRB

Mark Gaston Pierce – August 2018 D

Lauren McFerran – December 2019 D

Marvin Kaplan – August 2020 R

William Emanuel – September 2022 R

John F Ring, CHAIR – December 2022 R


Cuts in Funding • Region 19 Anchorage office closed

• House Committee on Appropriations proposed NLRB funding be cut by $12.8 million


Budget Cuts

• August 2018: NLRB offers voluntary early retirement and voluntary separation to NLRB employees

• Flat funding of NLRB has been primarily addressed by voluntary personnel attrition


Election Rules

• January 2017: NLRB sought stakeholder comments on change to 2014 “Quickie Election” Rules

• 7,000 responses to review posted on NLRB’s website

• Republican comments: election to be held at least 35 days after petition

• Democratic comments: NLRB has no substantive reason to revisit rules


NLRB Case Processing

• March 2018: NLRB solicits input from staff and HQ to changes to existing case processing procedures

– Suggesting charging parties to file a detailed position statement or affidavit with the unfair labor practice charge

– Potential dismissal of the charge if the charging party fails to respond to any request from the Region within two business days

– When contacting the charged party, the Board agent should go over the allegations, seek resolution including a bilateral resolution, and allowing non-Board resolutions to be memorialized by email


Persuader Rule Rescinded

• July 19, 2018: DOL rescinds Persuader Rule

• “By rescinding this Rule, the Department stands up for the rights of Americans to ask a question of their attorney without mandated disclosure to the government”


Employer Email

• August 1, 2018: Should the NLBR overturn Purple Communication?

• Register Guard allowed employers to have neutral policies prohibiting employees from using work email for nonwork purposes


NLRB Decisions and Advice Memos


Micro UnitsPCC Structurals, Inc. (2017)

• NLRB overrules Specialty Healthcare & Rehabilitation Center (2011)

• Reinstated community of interest test

• Rejected “overwhelming” community of interest standard

• Undermined the fulfillment of the Board’s statutory duty under Section 7

• Board to evaluate the interests of all employees both in and outside of the petitioned unit

– without regard to whether these groups share an “overwhelming” community of interest

• General Counsel Memorandum OM 18-05, Representation Case Procedures in Light of PCC Structurals, Inc


Impact of PCC Structurals, Inc.

• Unions: difficult to obtain elections in smaller employee units

• Employers: easier to show that larger groupings of employees are the “smallest appropriate unit”

• Easier for employers to structure their workplaces avoid “sufficiently distinct” communities of interest for smaller units

• Representation case litigation strategy


Union Contract ExpirationRaytheon Network Centric Systems

• NLRB overruled E.I. Du Pont de Nemours (2016)

• CBA provided Raytheon reserves the right to amend the healthcare benefit plan for employees

• During negotiations Raytheon informed union that it was going to proceed with changes to the plan and implementation at open enrollment

• No “change” to mandatory subject of bargaining because employer’s right to amend plan was past practice


Joint Employer StatusBrowning Ferris Industries of Ca./Hy-Brand

Industrial Contractors

• NLRB reversed itself in Hy-Brand (12/16/17):

– reverting to joint employment test of actual exercise of joint control over essential employment terms

• February 2018: NLRB reinstated the Browning Ferris standard

• May 2018: NLRB announced it will engage in rulemaking with public notice and comment

• Unpredictable effect of joint employment test, Browning Ferris is still the legal authority


Workplace Civility RulesThe Boeing Co. (Dec 2017)

• Overrules Lutheran Heritage Village-Livonia

• New standard for evaluating the validity of employer rules, policies and handbook provisions under the NLRA

• “Congress did not intend the NLRA in 1935 to invalidate rules that require employees to work harmoniously or conduct themselves in a professional or positive manner”

• Boeing’s rule forbidding PDA’s, cell phones, laptops, etc. in the workplace without a “permit” found to be unlawful under “reasonably construe” test


Rules of Conduct: New Test

“Meaningful balance of employee rights and employer interests”

The nature and extent of the potential impact on NLRA rights

Legitimate justifications associated with the rule


Rule CategoriesCategory 1

• Generally lawful – no impact to Section 7 rights when reasonably interpreted

– Civility

– No photography or recording

– Insubordination

– Disruptive behavior

– Confidentiality, proprietary or customer info

– Defamation

– Employer logos or intellectual property

– Authorization to speak to media for company

– Disloyalty, nepotism or self enrichment



• Not obviously lawful or unlawful, requires a case by case analysis:

– Broad conflict of interest rules that don’t cover fraud

– Confidentiality rules on “employer business” or “employee information”

– Disparagement of employer

– Use of employer name

– Restricting speaking to media

– Off duty conduct rules prohibiting outside organizations

– False or inaccurate statements



• Generally unlawful – board will issue complaints

– Confidentiality rules specifically regarding wages, benefits or working conditions

– Joining outside organizations or voting on matters concerning the employer


GC Guidance Memo Handbook RulesJune 7, 2018

• Boeing decision only applies to “mere maintenance” to neutral rule

• Still not addressed:

– “special circumstances” and apparel rules

– Confidentiality of discipline or arbitration


Lyft, Inc. July 2018

• Work rules on intellectual property and confidentiality upheld

• Intellectual Property rule prohibits employee use of company logos without express written permission (Category 1)

• Confidentiality Rule prohibits employees from using proprietary and confidential information relating to Lyft’s business, operations and properties, including “user information” (Category 2)


Concerted Activity

• Burger King: violated NLRA by telling workers they couldn’t discuss striking in support of a $15 minimum wage in its parking lot

• Comprehensive Healthcare Mang. Serv, LLC: lawfully terminated a CNA who failed to report another CNA’s failure to change wet clothing of a resident, but posted it on Facebook

• Papa John’s Pizza: unlawfully terminated employee for failure to give sufficient notice for her absence to participate in “Fight for $15” convention

• Google: termination of James Danmore was lawful for internal memo he wrote questioning biology in career choice


Concerted Activity

• International Warehouse: employees’ participation in “Day Without Immigrants” strike was protected activity under Section 7

• Market 450: Restaurant employee unlawfully fired for “sticking her nose in other people’s business” engaged in protected activity when she stood up for coworker whose $10 tip was being taken away

• Williams Sonoma: Employees stated at safety meeting, “we might as well just hit fellow employees if a near miss would be treated the same as a collision, dead men cannot talk”. Discharge unlawful as conduct was concerted and “workers were speaking in metaphor.”


Space Needle, LLC(June 2018)

• CBA expired in 2012, employer ceased dues deduction

• WKYC TV (Bethlehem Steel) 2012 required employers to keep dues deduction status quo until new contract, prospective ruling only

• Space Needle did not need to reinstate dues deduction but reached an agreement to do so post WKYC TV.

• Space Needle refused to reinstate dues under “mutual mistake” and/or failure of “Meeting of the minds”

• US Court of Appeals ruled Space Needle must honor agreement


Tesla

• May 2018: CEO Tweets “nothing stopping Tesla team from voting union, but they will have to pay union dues and give up stock options”

• First in Tesla responses to active organization by UAW

• Charges filed and pending


Tesla


Alaska Airlines, Inc. v Schurke(9th Cir. August 1, 2018)

• Railway Labor Act did not preempt an employee’s claim premised on Washington State Sick Leave law right to reschedule vacation leave for her family medical reasons

• Right to vacation leave in CBA vs. state law rights under Washington Family Care Act (WFCA)

• WFCA: employees must comply with policy or CBA applicable to leave available except as to choice of leave

• 9th Cir first ruled WFCA was pre-empted by labor law and CBA, en-banc rehearing reversed in favor of employee


Proposed Legislation


Pending Legislation

• June 2018 – Freedom to Negotiate Act – creating a private civil action under NLRA and about a dozen other protections

• July 2018 – Employee Rights Act of 2018

– abolish card check election

– guarantee secret ballot elections


Bargaining Issues

• Mandatory subjects: signing bonuses and non-compete clause

• Washington Paid Sick Leave and City of Seattle PSST Elimination of Waivers in CBA

• Washington Paid Leave Law effective 2019: does not apply to employers covered by a Collective Bargaining Agreement in effect prior to October 19, 2017

• Pension Withdrawal Openers


Thank You!

Contact Information:

• Kellis M. Borek – [email protected]

• Archbright – 206.664.7278

• Website – http://www.archbright.com

mailto:[email protected]

http://www.archbright.com/

Documents

Labor Law Update - NHRMA Conference · PCC Structurals, Inc. (2017) • NLRB overrules Specialty Healthcare & Rehabilitation Center (2011) • Reinstated community of interest test