Key Points:

  • The Western District of the Missouri Court of Appeals upheld a narrow portion of section 110.010.B.4(a) of the University of Missouri System Rules and Regulations that prohibits employees or students from possessing or discharging firearms, weapons, and explosives on University property.
  • However, the University cannot prohibit employees from possessing a firearm that is not visible inside a locked vehicle parked on University property, because it conflicts with and is preempted by section 571.030.6 of the Missouri Revised Statutes.

Continue Reading Court Upholds Narrow University Rule to Reduce Firearm Crime

The Protecting the Right to Organize (PRO Act) (H.R. 842) is a sweeping effort to amend longstanding labor laws to facilitate union and employee organizing efforts. The union-friendly legislation would make the most significant modifications to the National Labor Relations Act since the Taft-Hartley Act restricted union power in 1947. The proposed changes would give workers and unions more power in disputes at work, add monetary penalties for companies that retaliate against workers who organize and expand collective bargaining rights for many workers.  The PRO Act would also weaken “right-to-work” laws in more than half of the states that give employees the right to choose not to join or pay dues to unions.

These efforts to tip the balance in favor of union organizing are not new. We have seen many of these proposed changes show up in past legislative efforts. Similar changes were part of the Employee Free Choice Act introduced before the election of, and supported by, President Obama. The PRO Act passed the Democratic controlled House last year but was never taken up by the then GOP majority Senate. This year the Democrats narrowly control the Senate, but not by enough votes to overcome a filibuster, which ordinarily means that the measure is likely dead again.

Below is a summary of a several provisions of the PRO Act:

Continue Reading The PRO Act – A Wish List For Revival of Unions

Hospitals and non-acute care settings beware: Micro-Units are about to make their way back into Healthcare Union organizing. Over the coming months, we can expect to see many significant changes to labor issues affecting healthcare and other sectors of our marketplace. The National Labor Relations Board (“NLRB”) is almost certain to reinstate the standards of what constitutes an appropriate bargaining unit as set forth in a 2011 case, Specialty Healthcare, allowing unions to target smaller groups of employees to organize. This case has encouraged Union organizing of Micro-Units in various settings, especially healthcare. The Board had overruled that decision in 2017, PCC Structurals, Inc., and returned to “community of interest” analysis which reviewed whether the unit employees “share a community of interest sufficiently distinct from the interest of employees excluded from the petition-for group to warrant finding that the purposed group constitutes as separate bargaining unit.” Continue Reading Micro-Units Are Back in Healthcare Union Organizing

 

The saga of Scabby the Rat continues with the transition of the Biden administration and the recent unceremonious ouster of now-former General Counsel Robb. The debate focuses on whether the presence of Scabby, the large inflatable rat, and large banners at the site of a neutral secondary employer constitute lawful secondary protest activity or is unlawful picketing or coercive conduct. Continue Reading The Nine Lives of Scabby the Rat

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.

If you have questions related to the latest Board decisions and your statutory obligations under the NLRA, contact Jon Anderson, Tom O’Day, or your Husch Blackwell attorney.

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