On November 16, 2020, the Missouri Supreme Court heard oral arguments in the case of Missouri National Education Association, et al. v. Missouri Department of Labor and Industrial Relations, et al., Ferguson-Florissant School District, et al, challenging a circuit court ruling that House Bill 1413 (HB 1413), a public labor union reform law, is unconstitutional in its entirety. The circuit court held that the 2018 law unlawfully discriminates against certain public labor unions representing first responder personnel and infringes on public employees’ fundamental rights to bargain collectively and to choose their own representative, as well as certain First Amendment and equal protection rights. Upon concluding that the unconstitutional provisions dominate “the entirety of the legislative intent to undermine the plaintiff’s fundamental rights,” the circuit court enjoined the Missouri Department of Labor and Industrial Relations and the Missouri State Board of Mediation (SBM) from implementing and enforcing the provisions of HB 1413. On appeal, the Defendants assert that the right to bargain collectively is not a constitutionally protected fundamental right and deny that the restrictions imposed by HB 1413 abridge public employees’ constitutional rights. Continue Reading Missouri Supreme Court to Decide Constitutionality of Public Labor Reform Law
As the 2020 general election approaches with many employees working remotely and participating on social media platforms, employers can anticipate that employees will engage in political speech and activity in the workplace. Political speech includes a wide spectrum of activities beyond communicating by written or spoken words on a political topic. Other forms of expression that constitute political speech include wearing clothing or other accoutrements endorsing or opposing a person, party or issue; engaging in symbolic speech such as participating in demonstrations; contributing to campaigns; handing out campaign literature; and at least one court has held that “liking” a post on Facebook is political speech. This election year, acrimonious partisan politics, a global pandemic, and economic and social issues that have impacted nearly every worker have generated strong opinions about candidates and issues. Opinions expressed in this highly politicized atmosphere though, can undermine worker productivity or even result in claims of harassment, discrimination, retaliation or a hostile work environment.
As a result, employers face the complicated legal and practical issue of lawfully regulating speech in the workplace to ensure that the workforce remains productive and respectful of the rights and differences of co-workers. Maintaining a productive and harmonious workforce requires that employers understand the limits on their right to regulate or impose rules that limit political speech and expression in the workplace and enforce the rules in a lawful manner. The nature of the lawful restrictions that an employer can impose depends on the designation of the employer as either a public-sector or private-sector employer. While this post will discuss restrictions on both types of employers, the main focus is on the right of private-sector employers to limit political activity in the workplace. Continue Reading Understanding Employers’ Right to Impose Limits on Political Activities in the Workplace
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 of 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.