On September 18, 2020, a three-judge panel of the Ninth Circuit U. S. Court of Appeals held in SEIU Local 121RN v. Los Robles Regional Medical Center, DBA Los Robles Hospital and Medical Center (Los Robles) that the power to decide whether a grievance is arbitrable in labor cases resides with the federal court and not the arbitrator absent “clear and unmistakable” evidence to the contrary. The Los Robles decision overturns the Ninth Circuit decision, United Bhd. Of Carpenters & Joiners of Am., Local No. 1780 v. Desert Palace, Inc. (Desert Palace), which held that in labor cases, an arbitrator must decide the issue arbitrability if the agreement includes a broad arbitration clause even though the parties failed to specify their intent. The Los Robles decision is consistent with the unanimous U.S Supreme Court decision, Granite Rock Co. v. Int’l Bhd. of Teamsters (Granite Rock) which applied the same arbitrability framework to labor and commercial arbitration disputes, and rejected the assertion that the Federal Arbitration Act (FAA) “pro-arbitration policy” required that labor disputes be arbitrated “where evidence of the parties’ agreement to arbitrate the dispute [was] lacking.” Continue Reading Ninth Circuit: Court Decides Threshold Arbitration Issue Absent Clear and Unmistakable Evidence
On July 21, 2020, the NLRB released the decision General Motors LLC and Charles Robinson (GM) which is significant not only for its substance but for its timing. The GM decision held that abusive conduct and speech is not protected §7 activity and applied the burden-shifting rule under the Wright Line standard to evaluate challenged disciplinary actions connected with §7 activity. In a time of social tension amid protests against racism and sexism, the decision permits employers to require civility and peace in the workplace while it simultaneously protects employees’ civil and labor rights.
Continue Reading Long Awaited – Abusive Conduct Is Not Protected Activity
When a workforce organizes a union and a labor contract is still months away, human resource issues continue to arise. Often the issue turns on whether the employer has an obligation to bargain with the new union prior to the imposition of workplace discipline. Prior to 2016, under long-settled case law, employers had no statutory obligation to bargain with the new union about discretionary discipline as long as the discipline imposed was materially consistent with the employer’s established policy or practice. That obligation changed in 2016 with the Board decision Total Security Management Illinois (Total Security).
Total Security required an employer with limited exceptions to provide a union with notice and the opportunity to bargain about the discretionary elements of the employer’s existing disciplinary policy before imposing “serious discipline” defined as suspension, demotion or a discharge.” So, even if the employer had a disciplinary policy as part of the status quo, it could not unilaterally use it without first bargaining during the period of time prior to inking the first labor contract.
The state of the law was restored last week when the National Labor Relations Board (Board) voted to overturn Total Security. The Board’s decision, 800 River Road Operating Company, LLC Care One at New Milford (800 River Road), reinstates 80 years of precedent that employers have no statutory duty to bargain before imposing discretionary discipline consistent with the employer’s established policy or practice.
The undisputed facts of 800 River Road
A New Jersey nursing home operator, 800 River Road Operating Company, d/b/a Care One at New Milford (Care One) had challenged the certification of the union, United Healthcare Workers East (Union) as the exclusive bargaining representative of its non-professional workforce. While the certification of the Union was upheld in 2017, in the intervening period, Care One unilaterally suspended three employees and discharged one employee in conformity with its disciplinary policy and without notifying and offering to bargain with the Union. The General Counsel issued a complaint alleging, in part, that the unilateral imposition of discretionary discipline violated §§8(a) (5) and (1) of the National Labor Relations Act (Act) under Total Security. The General Counsel also argued that Total Security should be overruled and that the standard affirmed in Fresno Bee be reinstated.
The ALJ found that the suspension and discharge actions taken against the employees satisfied the definition of “serious discipline” and that Care One was required under the Act to provide the Union with notice and an opportunity to bargain over the discipline, consistent with Total Security.
The Board overrules Total Security Management
In 800 River Road Operating Co., the Board overruled Total Security, criticizing the 2016 decision as 1) in conflict with Board precedent and the Supreme Court’s Weingarten decision, 2) a mischaracterization of the unilateral change doctrine announced in NLRB v. Katz (Katz), and 3) a “complicated, burdensome bargaining scheme … irreconcilable with the law regarding statutory bargaining practices.” The Board announced that the Fresno Bee decision, which affirmed the ALJ’s analysis and conclusion that no statutory obligation exists when an employer exercises discretion within the framework of an established disciplinary policy, correctly characterizes the state of the law regarding bargaining practices.
The Board also clarified that the unilateral change doctrine announced in Katz does not apply in the context of meting out employee discipline consistent with established discipline policies or practices. Katz requires employers of union-represented employees to refrain from making a material change regarding any term or condition of employment that constitutes a mandatory subject of bargaining unless notice and an opportunity to bargain is provided to the union. The unilateral change doctrine in Katz, however, does not apply where evidence establishes that the employer imposed its pre-existing disciplinary rules or policies to discipline individual employees during negotiations of a first contract with a newly elected bargaining representative.
The 800 River Road decision restores long-standing settled precedent disrupted by Total Security. Employers which engage in first contract negotiations with a union can impose their pre-existing discipline policies and practices without bargaining with the union over discretionary discipline decisions. Employers, however, must maintain and continue to make decisions “materially consistent” with its established policy or practice, “including its use of discretion.” The Board decision in 800 River Road applies retroactively to all pending cases. Pre-discipline bargaining entered into prior to the 800 River Road decision and in reliance on Total Security will be deemed “superfluous” but not unlawful.
Tracey Oakes O’Brien, Knowledge Manager, is a co-author of this content.
During the last half of May 2020, the National Labor Relations Board (Board) issued four decisions upholding the legality of employer facially neutral work rules. Two of the decisions applied the Boeing standard to assess the legality of work rules or policies while the other two decisions restored past precedent to find that an employers’ property rights outweighed employees’ right to engage in protected activities under §7 of the National Labor Relations Act (Act). The key highlights of those decisions, including guidance on drafting work rules and policies that are lawful under the Boeing standard, are summarized below. Continue Reading NLRB Decisions Restore Employers’ Right to Use Work Rules to Control Workplace
- Media policies which prohibit employees from communicating with the media must be narrowly tailored to protect legitimate business interests such as protecting confidential information and controlling statements made on behalf of the employer; and
- Media policies that specifically exclude communications by employees that are not made on behalf of the employer and that relate to labor disputes or other concerted communications for the mutual aid or protection under the National Labor Relations Act (Act) are lawful.
On March 30, 2020, the NLRB issued the decision, Maine Coast Regional Health Facilities which is relevant for substantially all employers due to the uncertainty and heightened health and safety issues that confront employees and employers during the COVID-19 pandemic. The Board decision confirms that employer media policies must be narrowly tailored to protect legitimate employer interests and must not infringe on employees’ right to communicate with the media to bring attention to employee concerns regarding labor disputes or working conditions regardless of whether a union is involved.
Eastman Maine Hospital Systems (EMHS) is the parent company of Main Coast Regional Health Facilities and maintained a media policy that was one of over 260 policies made available to employees through an online portal. The media policy provided as follows:
No EMHS employee may contact or release to news media information about EMHS…without the direct involvement of the EMHS Community Relations Department or of the chief operating officer responsible for the organization. Any employee receiving an inquiry for the media will direct that inquiry to the EMHS Community Relations Department, or Community Relations staff at that organization for appropriate handling.
An employee of Maine Coast Regional Health Facilities submitted a letter to the editor of a local paper discussing staffing shortages at the hospital, the adverse impact of the shortages on employees’ working conditions and expressed support for the nurses’ union efforts to improve staffing levels. EMHS subsequently discharged the employee because submission of the letter to the editor violated the terms of the media policy. After the employee filed a ULP charge, EMHS amended the original media policy to include the following savings clause:
This Policy does not apply to communications by employees not made on behalf of EMHS or a member organization, concerning a labor dispute or other concerted communications for the purpose of mutual aid or protection protected by the National Labor Relations Act.
EMHS never repudiated the employee’s discharge nor notified its employees of the amended media policy.
The ALJ found that the terminated employee was the only employee that had ever been terminated for violation of the media policy. As a result, he noted that the media policy had only ever been invoked to interfere with the exercise of §7 rights under the Act. As a result, the ALJ determined that the media policy was unlawful under the Boeing analytical framework for the following reasons:
- The discharge violated the Act in that the employee’s submission of the letter to the editor was protected concerted union activity, and the original media policy was the stated reason for the discharge;
- The original media policy was unlawful under the Boeing standard as a category 3 violation because it significantly infringed on employees’ right to communicate with the media to draw attention to the need to improve working conditions; and
- The amended media policy was unlawful because EMHS failed to repudiate the discharge of the employee and failed to inform employees that the protected concerted activity in which the former employee had engaged was permitted under the amended policy.
The ALJ further clarified that EMHS’ failure to repudiate the discharge and to inform employees of the amended policy could lead an objective employee to reasonably conclude that the amended policy continued to prohibit the type of activity that resulted in the discharge. As a result, the ALJ ordered the reinstatement of the employee, and other relief. See our complete discussion of the ALJ decision here.
The Board affirmed the ALJ decision that the employee was discharged for engaging in protected concerted union activity in violation of the Act and that the original media policy was overly broad and unlawful under Boeing. The Board, however, reversed the ALJ ruling as to the amended policy only.
The Board evaluated the amended media policy under the Boeing framework to determine whether the facially neutral media policy could reasonably be interpreted to interfere with the exercise of rights under the Act. If the amended media policy could be reasonably interpreted to restrict §7 activity, the Board would have been required to engage in a balancing test that weighs the employer’s justifications of the policy against the potential adverse impact on §7 rights.
The Board, however, never reached the Boeing balancing test. Instead, it concluded that the “clear language” of the amended media policy excluded communications by employees relating to labor disputes and concerted activity. As such, an objective employee could not reasonably construe the amended media policy as restricting §7 rights.
The Board disagreed with the ALJ’s conclusion that EMHS’ failure to repudiate the discharge and inform employees of the amended policy would lead employees to believe that the amended policy still prohibited the type of activity engaged in by the discharged employee. Instead, the Board cited as significant that the employee’s discharge was the first and only discharge under the original media policy and concluded that the employees “isolated discharge” would not obscure the ”very clear meaning of the savings clause in the amended media policy which expressly permits §7 activity. The Board categorized the amended media policy as a lawful Category 1(a) policy under the Boeing test and as further defined in LA Specialty Produce Co.
What this means to you
The Board decision is a reminder to employers that concerted activity include the actions of a single employee who brings group complaints to the attention of the employer. Additionally, broad media policies unlawfully restrict the exercise of §7 rights if the policy restricts any communication with the media and is not limited in scope to protect legitimate business interests such as the protection of confidential information or controlling statements made on behalf of the employer, As health-care workers continue to face health and safety issues related to exposure to COVID-19 in the workplace and a shortage of personal protective equipment, employers may experience an increase in the incidence of employees’ discussing health and safety issues with third parties on social media or in the news media to bring attention to the issues. Employers must recognize that such statements may constitute protected concerted §7 activity under the Act.
If you have concerns about your work rules and policies in light of the current COVID-19 pandemic, contact Terry Potter or your Husch Blackwell attorney.
Tracey Oakes O’Brien is a contributing author of this content.
On March 16, 2020, the Board issued its decision in Baylor University Medical Center and Dora S. Camacho reversing the 2018 ALJ decision and holding that Confidentiality and No Participation in Third-Party Claim provisions in a voluntary severance agreement are lawful. The decision overrules Clark Distribution System, Shamrock Foods Co., and Metro Networks to the extent the holdings extend beyond their fact patterns involving employees who were unlawfully dismissed for exercising their rights under the National Labor Relations Act (Act). Continue Reading Confidentiality and No-Participation Provisions in Voluntary Severance Agreements Lawful
COVID-19 presents a formidable health and safety challenge to employers, and unionized employers also must address issues in the context of their obligations under the National Labor Relations Act (NLRA) and a collective bargaining agreement. The broad range of issues includes both mandatory subjects of bargaining and business decisions that impact the employees of the bargaining unit. Such issues include health and safety concerns, attendance and staffing issues, wage and hour issues, leave issues, changes in work schedules, layoffs, and temporary reductions in hours or closure of the business to reduce infection rates. Missteps in effectuating these major changes can lead to violations of the NLRA and an increase in the incidence of workers refusing to work. Employer’s ability to navigate these issues successfully requires an understanding of their rights under both the collective bargaining agreement and federal law in this novel situation. Here are some key considerations and proactive measures employers can take to facilitate timely and decisive employment actions.
Husch Blackwell issued a client legal alert regarding the U.S. Court of Appeals for the D.C. Circuit’s decision in Duquesne University of the Holy Spirit v. NLRB, which resulted in the denial of collective bargaining rights to adjunct faculty members employed by Duquesne University, a religious university. In summary, the court held that the National Labor Relations Board lacked jurisdiction over the religious institution, including all of its faculty members, consistent with the Supreme Court’s prior decision, NLRB v. Catholic Bishop of Chicago and the D.C. Circuit’s own bright-line test established in University of Great Falls v. NLRB. We offer the full update in the alert posted on our website.
The UAW strike against GM represents the latest strike in a string of labor disputes between management and union workers. Continuation of health benefits during a strike is always a consideration in such situations.
After initially stating it would not pay for striking workers’ health care benefits, GM reversed its decision. GM’s decision to terminate health benefits would have shifted the burden of paying for striking workers’ health insurance benefits to the employees under COBRA. The GM situation brings to the forefront the legal issue of who is responsible for the payment of the health insurance benefits for workers who have stopped working to exercise their right to participate in a union strike.
On September 6, 2019, the NLRB (Board) issued the decision, Kroger Limited Partnership I Mid-Atlantic and United Food and Commercial Workers Union 400 (Kroger decision), which overruled Sandusky Mall Co., and limited the right of nonemployee union agents to access employer property for the purpose of union solicitations. The 3-1 decision, split along party lines, is the latest Board action in a string of pronouncements that restrict union expressive activity. Prior Board actions include the decision in UMPC and its Subsidiary UMPC Presbyterian Shadyside, which restricts nonemployee union organization solicitations in public areas on the employer’s property, and the recent GC advice memo issued on December 20, 2018 that we discussed here relating to restrictions on the use of banners and inflatables in secondary boycott activities. The decisions signal a continued shift in the Board’s interpretation of the scope of protected activity under the National Labor Relations Act (Act).
Union solicits Kroger customers to boycott store
Kroger operated a retail grocery store, number 538, located in Virginia that previously had entered into a collective bargaining agreement with the United Food and Commercial Workers Union 400 (Union). In late 2014, Kroger opened two new Kroger stores that were not union shops within a short distance of the Kroger 538 store. The Kroger 538 store was subsequently slated for closure, and its employees were offered the option of transferring to other unionized Kroger stores, but not the closer, non-union, new Kroger locations. In response, the Union representative began soliciting customers in the Kroger 538 parking lot to boycott the new Kroger locations and to sign petitions to protest Kroger’s decision to transfer its Kroger 538 employees to only more distant, unionized locations. Kroger subsequently contacted the police who ordered the Union agent to leave the parking lot. The Union filed an unfair labor practice charge alleging discriminatory denial of access to private property and enforcement of a no solicitation policy.
With regard to Kroger’s policies and practices related to solicitations at the Kroger 538 property, the ALJ made the following relevant findings:
- Kroger did not have a written policy regarding solicitation requests by nonemployees on the Kroger 538 property.
- Kroger’s lease of the property contained a no solicitation/no loitering provision which prohibited all soliciting, handbilling, picketing and loitering activities in the parking and common areas of the store.
- The lease provisions authorized Kroger to treat all persons engaging in such activities as trespassers.
- As a past practice, Kroger had authorized nonemployee solicitation requests on an individual basis. It had approved nonemployee solicitation requests at the Kroger 538 property from certain entities, such as the Girl Scouts, the Lions Club, the Salvation Army, the American Red Cross, and the local fire department. At least one request from a nonemployee, non-union, religious organization was denied.
- A March 2014 letter from the landlord “targeted unions and other groups” seeking to protest, handbill, picket or engage in other disruptive activities on the premises.
The ALJ concluded that:
- The Union agent had engaged in protected activity under the Act by soliciting Kroger customers on Kroger’s parking lot; and
- Kroger had violated §8(a)(1) of the Act by excluding union solicitations on Kroger property “while at the same time favoring and permitting charitable and civic solicitation activity.”
The majority of the Board disagreed with the ALJ’s decision and dismissed the Union’s complaint.
NLRB expands employers’ right to bar union solicitations on private property
In reaching its decision, the Board significantly narrowed the circumstances under which a union has a statutory right under the National Labor Relations Act (Act) to access an employer’s property for the purpose of soliciting customers or patrons of the employer. The majority held that an employer need only permit access to the employer’s property by nonemployee union agents if the employer permits other nonemployee, nonunion organizations to engage in activities “similar in nature to those the union seeks to engage.” The decision necessitates consideration of not only the conduct (solicitations), but also the content of the solicitations (protests and boycotts). The majority decision overrules established Board precedent.
The decision demonstrates a shift in the Board’s view of the proper balance between protecting employers’ property rights and a union’s statutory right to access an employer’s property to exercise §7 rights. While an employer has a right to exclude non-employees from the employer’s private property, the U.S. Supreme Court in NLRB v. Babcock and Wilcox, Inc., held that it’s a violation of the Act to discriminate against unions by excluding unions from the employer’s property while allowing “other distribution.” The 1999 Board decision, Sandusky Mall Co., interpreted the Babcock discrimination exception to require employers to permit union access to the employer’s property if the employer permits other nonemployee charitable, civic, or promotional activities on the employer’s property. The majority, however, described Sandusky as being “roundly rejected by the courts of appeals,” and as having “stretched the concept of discrimination well beyond its accepted meaning” in a manner that is unsupported by Supreme Court precedent or the Act.
Instead, the majority views the scope of the discrimination exception as narrow and asserted that restrictions on an employer’s right to deny access to their property by nonemployee union agents are proper only in limited circumstances. Significantly, the Board rejected as “too narrow,” the 2nd and 6th Circuit Courts of Appeals decisions that limit the Babcock discrimination exception to circumstances in which one union is favored over another, or in which employer related information is permitted to be communicated while union related information is excluded, or in which nonemployees who seek to communicate on a subject protected by §7 of the Act are treated dissimilarly. Rather, discriminatory denial of access to an employer’s property exists only if the nonemployee activities permitted are similar in nature to the nonemployee union activities that are not permitted. Further, protest and boycott activities, which urge customers not to patronize the business and are against the business interest of the employer are not similar to charitable, civic and commercial activities. The Board’s decision will be retroactively applied to all pending cases.
What does this mean for employers?
The Kroger decision reflects the continued trend by the Board to expand the employer’s right to deny access to its property by nonemployee union agents. The decision also provides insight into the Board’s plans regarding the development of a new standard related to access to an employer’s private property as announced in the May 22, 2019 unified agenda.
Additionally, the Kroger decision paves the way for the Board to reconsider its decisions related to off-duty employee access policies that require employers to choose between a zero tolerance off-duty access policy and a policy that grants workers access without restrictions. In 2012, the lone Republican Board member dissented from several majority decisions that required employers’ policies to prohibit all off-duty employee access in order to control access to the premises by off-duty employees. Similar to the analysis in the Kroger decision, the dissenting Board member criticized the then majority holdings as upsetting the “balance between an employer’s right to control its property and an employee’s right to engage in §7 protected activity.”
As a result of the Kroger decision, employers and managers should undertake the following actions:
- Develop a written solicitation and distribution policy related to access of the employer’s property by nonemployees, including identification of the types of activities that will be allowed by nonemployees on the employer’s property;
- Consistently apply the solicitation and distribution policy to solicitation requests by nonemployees; and
- Provide training to management regarding the new labor rules relating to solicitations by nonemployee groups as well as the employer’s solicitation and distribution policy.
The Kroger decision relating to union solicitations and handbilling as well as the General Counsel’s advice memo which seeks to overturn prior decisions relating to the union’s use of banners and inflatables evidence the Board’s intent to reverse union friendly decisions and to narrow the circumstances under which union expressive activity is allowed to encroach upon employers’ business premises.
Tracey Oakes O’Brien is a contributing author of this content.