On August 7, 2017, a Fifth Circuit panel ruled, in a divided decision, that a class-action waiver can be enforceable even without an arbitration agreement being involved. In that case, the Convergys Corporation required its applicants to sign a class-action waiver even though it was not contained in an arbitration agreement. The Convergys Corp. v. National Labor Relations Board (NLRB) ruling rejected a NLRB decision holding that the company cannot require its job applicants to sign class action waivers that prevent them from suing the company.
For many of us who have been watching the changes made in various administrative agencies the appointments by President Trump to fill the two empty positions on the NLRB is a key start in making changes in a number of over-reaching decisions during the Obama administration. With the changeover to a new General Counsel in November the transformation will be complete.
Employers have been frustrated for some time with the numerous case decisions and policies developed by the NLRB in recent years which simply micromanage the workplace. The announcement of these appointments, frankly, is a breath of fresh air after many, many years of putting up with decisions that are not only damaging to the economy, but an embarrassment in terms of the ill-founded basis for many of the opinions which were issued by the Board. We need a much more balanced viewpoint of the workplace and hopefully we are on the right path to make that a reality.
The National Labor Relations Board issued an Order on May 3, 2017 in which it made clear that the Board does not wish to exercise its discretionary authority to expand Weingarten Rights to non-union employees via rule making. The potential for the expansion of the Weingarten Rights to non-union employees has been in place ever since the Board issued its position in 2004 in the case of IBM Corporation, 341 NLRB 1288, whereby it limited Weingarten Rights to union shops. However, this is an issue which the Board has flip-flopped on during most of its existence. At times it has allowed Weingarten to be applied in a non-union setting, and then changed its mind and reverted back to the current situation where Weingarten only applies in a union environment. Regardless of the motivation behind making this determination, it is good news that the Board, at this point in time, has decided not to expand Weingarten to the vast majority of the workplaces.
Employers subject to a collective bargaining agreement (CBA) must proceed cautiously in determining how to handle dues checkoff and employee communications following implementation of any right-to-work laws. A recent decision by an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) declares that contractual dues checkoff provisions are not union security devices and thus may be enforceable despite a right-to-work law. Metalcraft of Mayville, Inc. v. District Lodge No. 10, 18-CA-178322 (2017) (Muhl, ALJ). The ALJ in Metalcraft interpreted Wisconsin’s right-to-work statute such that an employer could not unilaterally refuse to enforce dues checkoff, despite the existence of a state right-to-work law prohibiting such deductions. Instead, the ALJ found that the NLRA pre-empted state law, so dues checkoff remains a mandatory subject of bargaining, governed by federal law, regardless of the existence of a state right-to-work law prohibiting fees being deducted. And so the employer acted unlawfully in unilaterally discontinuing such deductions in violation of §8(a)5 of the NLRA.
Further, the Metalcraft decision also serves as an important reminder to employers to exercise caution in corresponding with employees about right-to-work laws. The ALJ held that a series of notices to employees containing employer-drafted questions and answers about the new right-to-work law violated §§8(a)(1) and (5) of the NLRA by undermining employees’ confidence in the union and directly dealing with employees. In that case, the employer presented no evidence it was responding to actual questions or requests for revocation of dues checkoff from employees; it phrased several questions in a manner disparaging the union; and it requested new authorizations for dues checkoff directly from employees.
The ALJ’s findings are consistent with other recent cases which have addressed the issue. In United Auto., Aerospace & Agric. Implement Workers of Am. Local 3047 v. Hardin Cty., Kentucky, the Sixth Circuit held that a county could not prohibit dues checkoff or hiring hall agreements because they were preempted by the NLRA, regardless of the existence of a valid right-to-work law. 842 F.3d 407, 410 (6th Cir. 2016). Similarly, an appeal is pending before the Seventh Circuit of a District Court decision which held, among other things, that dues checkoff does not amount to compulsory unionism and the NLRA preempts any regulation that imposes more stringent requirements than federal law. Int’l Union of Operating Engineers, Local 399, AFL–CIO v. Vill. of Lincolnshire, Illinois, No. 16 C 2395, 2017 WL 75742, at *11 (N.D. Ill. Jan. 7, 2017).
Employers with questions about how to handle dues checkoff or employee communications in preparation for implementation of right-to-work laws can contact a member of Husch Blackwell’s Labor and Employment team. For more information about right-to-work, see Husch Blackwell’s blog post: Right-to-Work in Missouri – What Does It All Mean?
Sometimes common sense is not so common. By a Memorandum dated January 31, 2017, the General Counsel of the NLRB has taken the position that student athletes at private colleges and universities are employees within the meaning of the National Labor Relations Act, notwithstanding the Board’s issuance of its decision of Northwestern University in 2015 in which it declined to exercise jurisdiction after a representation petition was filed by a union seeking to represent the Northwestern University’s football players.
So does that mean that if a football player has a serious health condition that the football coach will now have to provide FMLA to that player? Or, if the injury is more extreme, must the football coach then reasonably accommodate that player? Or, pay overtime after 40 hours of practice? Needless to say, you get my drift. This has got to be one of the most ridiculous legal positions coming out of the NLRB in a long time. Once again, the NLRB is extremely myopic and simplistic in terms of their view of the world, not taking into account the myriad of other issues that develop when such an ill-founded decision is made. In particular, I am sure the NCAA is going to be thrilled with this approach by the Board. Time and time again, after thorough review, the courts and other federal agencies have refused to adopt the viewpoint that such individuals are employees. Indeed, as the 7th Circuit recently recognized in the case of Berger v. NCAA, 16-1558 (January 12, 2017), this issue has been settled for years and there is no reason to revisit it. And while I am hopeful that in a matter of months, when we have a new GC in place at the Board, this memo will be made null and void, but in the interim we continue to have to put up with such nonsense being endorsed as our national labor policy. Frankly, it is just embarrassing.
Earlier this month the United States Supreme Court decided to hear three cases which will resolve the split between various Courts of Appeals (discussed in our prior post here) as to whether individual arbitration agreements barring class arbitration actions in employment-related matters are enforceable. While the Court held in 2011 that the Federal Arbitration Act would allow companies to avoid consumer class actions by insisting upon individual arbitrations in their contracts, AT&T Mobility v. Concepcion, workers have contended that employment contracts are different. They have successfully argued that the National Labor Relations Act prohibits class waivers since it would impinge upon worker’s rights to engage in “concerted activities”. The Seventh Circuit Court of Appeals accepted such an argument in Epic Systems Corp. v. Lewis (discussed in our prior post here), and the Ninth Circuit accepted such an argument in Ernst and Young v. Morris. The Fifth Circuit Court of Appeals rejected the same argument in National Labor Relations Board v. Murphy Oil U.S.A. Continue Reading Mandatory Employee Arbitration Split To Be Heard By Supreme Court
On October 3, the National Labor and Relations Board (NRLB) Office of the General Counsel (OGC) issued a Memorandum from the Division of Operations-Management to all Regional Directors, Officers-In-Charge, and Resident Officers. This Memo (Memorandum OM 17-02) reveals an aggressive new position from the OGC, one which attempts to overturn decades of Board precedent.
For years, the Board has limited workers’ ability to engage in partial or intermittent strikes. In some instances, the Board has used the term “partial strike” to include anything less than a total, traditional strike (where employees completely withdraw their labor and refuse to work until the parties settle the dispute). This would include intermittent strikes, where employees go back and forth between working and striking. Other times, the Board has used the term “partial strike” more narrowly to describe more specific types of limited, non-traditional strikes which are situationally distinct from intermittent strikes. Regardless of the verbiage used, however, the Board has consistently found that Section 7 of the National Labor Relations Act (NLRA), which protects “concerted activity,” does not protect employees engaging in either of these types of limited strikes. Under current Board precedent, therefore, employees who strike multiple times over the same labor dispute may be disciplined by their employers.
Now, the OGC wishes to dramatically extend Section 7 protection to cover multiple short-term strikes. The Memo states that the Board’s present test for determining whether such strikes are protected “is difficult to apply” and “exposes employees to potential discipline for activities that should be considered protected under Section 7 of the Act.” Accordingly, the OGC will now be taking the position that the Board should modify the law regarding intermittent and partial strikes. In furtherance of this effort, the Memo references an attached model brief and instructs its recipients to utilize the analysis contained in the model brief and incorporate those arguments into the General Counsel’s briefs submitted to Administrative Law Judges and the Board.
The arguments contained in the model brief “urge the Board to clarify this area of law by drawing clear conceptual distinctions between partial and intermittent strikes and redefining the circumstances under which intermittent strikes become unprotected.” More specifically, the General Counsel proposes a framework where multiple strikes (even if those strikes are over the same labor dispute) would be protected if: (1) the strikes “involve a complete cessation of work, and are not so brief and frequent that they are tantamount to work slowdowns”; (2) the strikes “are not designed to impose permanent conditions of work, but rather are designed to exert economic pressure”; and (3) the “employer is made aware of the employees’ purpose in striking.” The model brief argues that this framework “more effectively protects” a worker’s right to strike, “dispenses with the unpersuasive rationales” on which the Board has previously relied, and “better addresses Supreme Court precedent.”
Unfortunately, such an expansion Section 7 protections would upend years of generally understood and accepted labor relations practices. And unsurprisingly, employers would suffer the most, as they attempt to navigate new distinctions and the nuances of newly-protected strikes that will undoubtedly disrupt operations more than traditional strikes. Accordingly, employers will have an important role to play in NLRB proceedings by pushing back against the OGC’s new and threatening position.
In most situations the NLRB’s long established Weingarten doctrine can be applied in a fairly straight-forward fashion. But I still get questions regarding the interplay of drug and alcohol testing when it comes to Weingarten. This is probably due to the fact that the Ralphs Grocery Company decision, which issued in 2014, is a relatively new expansion of the Weingarten doctrine wherein an employee has the right to consult a union steward prior to taking a drug test. And then more recently, in Manhattan Beer Distributors the Board expanded Weingarten rights further, in the context of drug and alcohol testing, as the Board established that an employee had a right to a union steward to be physically present for the alcohol or drug test. An employer need only wait a “reasonable amount of time” for the union representative to be physically present; however, that time will be a function of the substance being tested for and the effect of time on the outcome of the test results. In other words, alcohol will probably have a shorter timeline in terms of what is a reasonable period, versus marijuana, which stays in the system for days, if not weeks.
Again, the employee must request the union representation. There is no duty on the part of the employer, absent a contractual requirement otherwise, to seek out union representation for these circumstances. So be aware of these new restrictions and apply them wisely, otherwise your discipline will more than likely be found unlawful and an otherwise clean discharge will turn into the nightmare of reinstatement and full backpay.
Once again I shake my head at the NLRB’s analysis in their application of the National Labor Relations Act. In the high profile Northwestern University case which issued in August of last year, the Board found that it would not assert jurisdiction over the grant-in-aid scholarship football players of Northwestern University, citing in particular the fact that it would not promote stability in labor relations. The Board bypassed the issue as to whether the football players were statutory employees and went with a policy oriented approach, finding that it was not in the best interest of all involved to invoke jurisdiction. As the Board noted “even when the Board has authority to act( which it would in this case, were we to find that the scholarship players were statutory employees) the Board sometimes properly declines to do so”, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction.
In declining jurisdiction the Board focused on the fact that the overwhelming majority of Northwestern’s competitors in football are public colleges and universities over which the Board cannot assert jurisdiction, so it would not promote stability in labor relations to assert jurisdiction in that situation. This underlying theme is restated repeatedly in the Board’s decision in Northwestern University and while there are other distinctions set out by the Board, this is the core determining factor for the Board. Yet, here we are, a few months later, and the Board holds in Columbia University that graduate students should be protected under the Act even though the Board will not have jurisdiction over the bulk of the universities and colleges who compete for their services, resulting in the same instability in labor relations. The Board’s reasoning and distinctions simply make no sense. Indeed, I think that if the matter is taken up on appeal, given the Northwestern University case, grounds for overturning the Board’s Columbia University decision are readily apparent. There simply is not a rational distinction between the two cases.
So we are going to have to wait this one out and see if there is an appeal and what the courts’ findings may be in this further expansion by the Board of its jurisdiction.
An order, dated February 19, 2016, by the Board granted special permission to appeal and invited briefs over the issue of whether or not they will continue to permit Administrative Law Judges to issue orders granting settlement terms proposed by a respondent, to which no other party has agreed to, over the objections of the General Counsel. Although these are relatively limited situations that arise, under Board procedures they definitely provide a mechanism to keep the General Counsel’s office in check over unreasonable settlement demands, especially in light of unfair labor practice claims that would normally be subject to a motion to dismiss or summary judgment if litigated in the courts.
Let’s be realistic, the Board normally does not take this action (brief invitation) unless it intends to change its practice. This is no more than a heads-up to all those who practice before the Board, that they are going to change their policy on this matter. The invitation to file briefs over the current practice is simply providing lip service to the public and is truly not meant to engage in any high level discussion over the pros and cons of this procedure. Like so many of the other changes which this Board has made since the Obama Administration has been in power, the best that can be hoped is that there will be a true change come the elections in November that would result in a change in the make-up of the Board and a reversal to the status quo ante for so many of these matters. Let’s keep our fingers crossed.