Employer’s Grant of Extra Holiday to All Employees Except Those Represented by Union Not Unlawful, NLRB Rules

Employers with union-represented employees also always have non-union employees, whether working in the office or at another worksite. Invariably, there are differences between the wages, benefits, and terms and conditions of employment of the two groups, a natural consequence of the bargaining process. A common situation arises when an employer makes changes in the workplace, whether it is a change to a payroll practice or offering new benefits. The question is whether the change applies to the union-represented workforce. Without any other circumstances, the answer generally is “no,” the change does not apply automatically to the represented group of employees for the simple reason that the change must be bargained.

The NLRB recently faced a situation where a group of unions claimed that a benefit granted to the non-union employees should apply to the bargaining unit employees, and that the employer’s failure to do so was unlawful.

In Merck, Sharp & Dohme Corp., 367 NLRB No. 122 (May 7, 2019), the employer has 23,000 employees in the United States, approximately 2700 of whom are represented by various unions in different plants. At the time of the events of the case, none of the collective bargaining agreements were under negotiation.

Employer Grants New Holiday to Non-Union Employees Only

The employer’s business results exceeded its expectations and the employer wanted to celebrate and acknowledge the good news with its employees. Ultimately, the employer settled on the grant of a new paid holiday, “Appreciation Day” which would be the Friday before Labor Day Weekend, converting a three day weekend into a four day weekend. The employer announced this new holiday and stated that Appreciation Day “did not apply to those in US who are covered by [a] collective bargaining agreement.”

The various unions representing the employees started to complain to the employer asking why Appreciation Day was not given to the bargaining unit employees. Various employer officials responded with essentially two reasons: First, the grant of such benefits cannot be made unilaterally “unless there is a provision” in the collective bargaining agreement. Second, the employer had wanted to make changes to how it administers payroll and the 401K, changes it deemed to be “simple”, and the unions refused to discuss such changes telling the employer to “wait until contract negotiations.”

The unions filed unfair labor practice charges alleging that the employer was “retaliating” against the union in violation of Section 8(a)(3).

Administrative Law Judge Sees Animus

After trial, the Administrative Law Judge ruled that the employer violated the law because the employer’s rationale,–that it did not grant the holiday because the unions had refused to make other changes,– was retaliatory. The Judge reasoned that the employer’s decision to exclude the union represented employees from Appreciation Day was motivated by union animus, finding “this motive represents straightforward punishment of union employees in retaliation for past protected activity under the Act.” The Judge ordered the employer to make the union represented employees “whole” for the loss of the paid holiday.

The employer appealed.

NLRB Majority Reverses ALJ, Concludes Employer’s Reason Was Entirely Without Animus

A majority of the NLRB panel (Chairman Ring and Member Emanuel) reversed the ALJ’s ruling and dismissed the complaint. The Board noted that it “has long recognized that an employer has a right to treat represented and unrepresented employees differently, so long as the different treatment is not discriminatorily motivated.” The Board noted that in cases where the allegation is that the employer’s action is driven by an unlawful motivation, the General counsel bears an initial burden to show “(1) union or protected concerted activity, (2) employer knowledge of that activity, and (3) union animus on the part of the employer.”

Applying this framework the Board then analyzed the employer’s reason for not awarding Appreciation Day to represented employees. The Board noted employer was “not inclined” to approach the unions to bargain over this additional holiday because the unions “had, in the past, refused to agree to the [employer’s] midterm contract changes.” The Board concluded that the Judge’s conclusion that this reason was “straightforward punishment” was incorrect because it “simply fails to take into consideration the everyday realities of the bargaining process.” The Board expanded on the realities of the bargaining process:

‘Collective bargaining by its very nature is an ‘annealing process hammered out under the most severe and competing forces and counteracting pressures.'” . . . The process, by its nature, may involve hard negotiation, posturing, brinkmanship, and horse trading over a long period of time. Given this backdrop and the Board’s historical tolerance for such an ‘annealing process’ (so long as it does not cross the line into unlawful threats or bad faith), [the employer’s] articulation of [its] rationale was not an admission of unlawful retaliation Consideration of prior bargaining positions and extant contractual benefits is not unusual in the course of a collective-bargaining relationship, nor is it evidence of an employer’s antiunion animus.

The Board found that the employer’s message was clear and lawful: that if the unions were unwilling to discuss midterm changes to terms and conditions of employment, then they would have to “live with the limitations of their contractual benefits along with their advantages.”

Finally, the Board found that it was not animus for the employer to cite the fact that the law prohibited it from granting benefits unilaterally.

Dissent Sees Animus in Employer’s Actions

Member McFerran dissented, concluding that while “[n]othing in the Act required the Respondent to treat its union-represented and its unrepresented employees identically, but it was not free to treat them differently in order to punish represented employees for the statutorily protected actions of their Unions.”

Takeaways

This decision represents a very good articulation of the collective bargaining process, of how it rests on the relationship built by the parties and cannot be defined by a single event or action. The Board majority viewed the context of the bargaining between the parties in its totality instead of focusing intently on one incident. If the Dissent’s position were accepted then no party could every cite to the other party’s behavior without risking a finding of “animus.” Labor relations is a complex business where actions cause reaction. In this case, the unions steadfastly refused to bargain over changes during the term of the contract which was their right, of course, but that kind of inflexibility means the employer was less likely to approach the unions when the change was something positive. Had the tables been turned, and the employer acted in an inflexible manner, the unions would likely have pointed to that behavior in refusing to agree to something in the future. “Animus” is not defined by a party not liking the outcome.

Tags: animus, bargaining unit employees, holidays, NLRA, NLRB, non-union employees, retaliation, Section 8(a)(3)

Using a Cat to Chase the Inflatable Rat: NLRB General Counsel Urged Reconsideration of Board Precedent Regarding Banners and Signal Picketing of Neutral Employers

By Michael Lebowich and Joshua Fox on May 17, 2019 Posted in Advice, NLRA, NLRB, Section 8(b)(1)(A)

Continuing its efforts to overturn precedent, the NLRB General Counsel’s Division of Advice has issued a new advice memorandum looking to strike at the most recognizable sign of unionism in urban areas today – – the inflatable rat that is used to signal a labor dispute to the public.

It has been long held by the Supreme Court that while handbilling at a neutral employer’s business is lawful, picketing urging a boycott of the neutral employer is coercive and therefore unlawful. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council (DeBartolo II), 485 U.S. 568, 579-80 (1988).

The issue presented with inflatable animals and large banners is whether objects and signs rise to the level of picketing conduct, and not simply free speech. For years, the National Labor Relations Board has ruled that rats and large banners are elements of free speech that do not rise to the level of “picketing” conduct that would be evidence of unlawful secondary boycott conduct. In its recent memo, the General Counsel sought to use a case out of Chicago — involving, ironically, a large inflatable cat — to go after this precedent.

In the Advice Memorandum (which was dated December 20, 2018, but was released on May 14, 2019), the General Counsel’s Office directed Region 13 to issue a Complaint against the International Brotherhood of Electrical Workers Local 134, finding that the union violated the “secondary boycott” provisions of the National Labor Relations Act by erecting a large, stationary banner proclaiming a labor dispute with the general contractor as well as a large, inflatable cat clutching a construction worker by the neck, near the entrance of the construction site.

The general contractor was “neutral” as it did not employ electricians directly. Rather, the “primary” employer was a subcontractor on the job site. It was undisputed that the union posted agents to hold the banner and used the inflatable cat at the entrance to the construction site, with the aim of forcing the neutral employer to cease using its electrical subcontractor.

The Region was directed to use the case as a vehicle to urge the Board to reconsider its decisions in a trio of decisions that were issued during the Obama administration, which found similar conduct protected and not unlawful “picketing” of a neutral employer under the Act:

A union’s posting of agents holding large, stationary banners proclaiming “labor dispute” and “shame on [the employer” in front of neutral businesses (Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 NLRB 797 (2010));
A union’s use of a large, inflatable rat in front of a neutral employer was neither picketing nor otherwise coercive (Sheet Metal Workers Local 15 (Brandon Medical Center) (Brandon II), 356 NLRB 1290 (2011)); and
Erecting banners at 19 different neutral employers’ premises proclaiming “shame” on them (Carpenters Southwest Regional Councils Locals 184 & 1498 (New Star), 356 NLRB 613 (2011)).

After a lengthy review of the existing precedent, the Division of Advice concluded that the trio of cases struck the wrong balance between speech and picketing activity, and that the General Counsel believed the union’s “activity was tantamount to unlawful secondary picketing, and signal picketing that unlawfully induced or encouraged neutral employees to cease working.” 13-CC-225655 at 1, 14-17. Alternatively, Advice urged the Region to argue that the conduct “at least constituted unlawfully coercive non-picketing conduct” in violation of the Act. Id. at 1, 17-18.

Unfortunately, the cat will not actually catch the rat this time. Since the Memorandum was initially distributed to the parties in late December, the parties settled the unfair labor practice charge. As a result, this case will not serve as the test case to the Board the General Counsel is seeking. However, this Memorandum clearly illustrates the General Counsel’s policy on this issue and how Regions likely will be required to interpret the Act and prosecute potential union conduct in similar circumstances. Given the proliferation of inflatable rats, it may be only a matter of time until the Board gets its chance to review its position.

Tags: Advice, Inflatable rat, NLRA, NLRB, unfair labor practice, unfair labor practices, unprotected activity

Employer’s Campaign Prediction That Employees Would Have To Join Union And Pay Dues As Condition Of Employment Not Coercive, NLRB Majority Rules

By Mark Theodore on May 16, 2019 Posted in Collective Bargaining, NLRA, NLRB, NLRB Election Rules, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices

The NLRB currently is churning out cases and Advice Memoranda at a fairly regular pace. We recently discussed NLRB decisions addressing information requests, handbook statements, and confidential informants.

An interesting area of NLRB case law concerns campaign statements,–statements made by employer representatives during an organizing campaign. When there is an allegation of wrongdoing, the Board evaluates such employer statements on two levels: whether they are unlawful (in which case they constitute an unfair labor practice) or “objectionable” in which case they do not necessarily violate the law, but are of such a nature that they had a tendency to interfere with employee free choice during the election. Both types of statements can overturn an election win for an employer. An unlawful statement must be remedied before an election is rerun, usually by a public notice posting. An objectionable statement overturns the election and the rerun is held shortly thereafter; the remedy is the rerun election.

One type of objectionable statement is in the area of “misstatements of law.” The allegation is that the employer’s statement of the law surrounding unionization was incorrect. It is the NLRB’s job to evaluate whether an incorrect statement of the law was objectionable.

In Didlake, Inc., 367 NLRB No. 125 (May 10, 2019), the Board was faced with an employer’s incorrect statement of law in the form of a prediction about what would happen to the employee if the union were to win the election. The employer provided janitorial services for an Army National Guard Readiness Center. There were 20 employees, approximately 15 of whom were severely disabled.

Employer Makes Pitch About Employment Being Conditioned on Union Membership and Dues Payment

During the course of the election, the employer’s Vice President had a number of conversations with employees about the consequences of having a union. A conversation which was recorded provided the example for the subsequent objection:

Vice President: So if the Union wins, I want to let you know a few things that will probably happen, okay, because we have the same Union at the Pentagon, okay.

Employee: Ok

Vice President: First thing they will require you to do is join the Union.

Employee: Yes.

Vice President: And if you don’t, you will not be able to work here. Have they told you that?

Employee: No.

Vice President: Okay, so if you don’t join, you can’t work here. Part of that agreement, then, is we will take $37 a month out of your paycheck, and we will give it to the Union on your behalf. They will require us to do that. They will also take 5 cents an hour for every hour that you work, and we will pay that to them as well, okay? So if they win, then we have what’s called a collective bargaining agreement. The Union and [the Employer] will sit down and negotiate the terms and conditions of that contract.

Employee: Yes.

Vice President: And those terms and conditions are wages, benefits, work rules for the workplace, and those sorts of things, so all of that is an unknown. It will have to be negotiated, okay?

Employee: Okay.

Vice President: Everything may just stay the same, they may go up, or they may go down. It’s a gamble. We don’t know where all that goes until we sit down and negotiate with the Union, so we want to make sure that you’re aware of it. If they win, you have to join as a condition of your employment to be here, and you will be paying the union dues. Those are three things that we know for sure. All the other things will become negotiation.

Employee: Okay.

The election was held and the union lost by a slim margin. The union received 9 votes, the employer received 10 votes and there was 1 void ballot. The union filed objections and the NLRB Region conducted a hearing. While there were other objections, the main issue in the case was whether the exchange between the Vice President and the employees was objectionable. The Regional Director ruled that the employer’s prediction as to the effects of unionization was a misstatement of the law and that the statement was objectionable. The Regional Director ruled that the employer’s statement about “having” to join the union and pay dues was a misstatement of the law that was objectionable. The Regional Director ordered a rerun election. The employer appealed this decision. Under the new election regulations, the rerun election was held while the employer’s appeal was pending. The union won the second election.

NLRB Majority Holds Statement is a Misrepresentation of Law but Harmless

An NLRB majority (Chairman Ring and Member Emanuel) reversed the Regional Director’s ruling and vacated the results of the second election. The Board began by noting that the employer “misstated the law when they characterized union membership and the payment of dues as a ‘condition of employment’ if the Union won the election.” Although not discussed in the Board’s decision, the employer’s statements constituted a misstatement of the law because union membership becomes a condition of employment through a union security clause which must be negotiated into a collective bargaining agreement. It is possible that the parties do not agree to include a union security clause in the labor contract.

The Board then reviewed the law in this area: that “unless a party has acted in a ‘deceptive manner’ that renders employees unable to recognize campaign propaganda, the Board will not ‘probe into the truth or falsity of the parties’ campaign statements’ and ‘will not set elections aside on the basis of misleading campaign statements.'” Midland Life Insurance Co., 263 NLRB at 133.

Applying this standard, the Board held that the conversations were held in a “straightforward manner” and no deception by the employer was alleged. The Board held the employer’s “mere misrepresentations regarding the Union’s ability to compel membership or enforce the payment of dues do not rise to the level of objectionable conduct.” The Board held that the Regional Director and dissenting Board member “did not give due weight both to the conditional nature of the Employer’s statements and the context in which they occurred.” Thus, although the Vice President “predicted that employees would have to join the Union as a condition of their employment and would be paying the union dues, these comments were preceded by and implicitly based on [the Vice President’s] references to the Employer’s experience with the Union at a nearby facility.”

Dissent Sees Coercion In Statement

Member McFerran saw the employer’s statements about employees “having” to join the union and pay dues as tantamount to a threat of job loss. McFerran interpreted the statement not only as misrepresentative of the law but coercive:

The Employer warned employees in no uncertain terms that union representation necessarily would result in union-membership and dues obligations that the Employer would have no choice but to enforce by discharging employees who wanted to refrain from joining the union and paying dues (even though they might well have wanted union representation). That warning was not just a clear misstatement of a basic principle of modern labor law, it was a threat equating a vote for representation by the Union with the risk of job loss.

Takeaways

This is an interesting case because it demonstrates how the statements evaluated by the Board can be interpreted in vastly different ways. The Board majority saw a misrepresentation but, in context, ruled that the employee likely was able to see the statement against the backdrop of bargaining: the employer was talking from experience with the same union about the risks of bargaining and the potential outcome. The Board majority might have ruled differently were it not for the employer’s statement about its experience with the same union at another location. We do not know the history of that relationship but it is likely that the parties had a valid union security clause in the contract and that it would be reasonable to assume that the union would seek the same thing at any newly organized location.

The NLRB has the difficult job of judging how employees might interpret statements from the employer. As we have discussed previously, the outcome of a case like this very much depends on the make-up of the Board. Employers wanting to avoid that kind of uncertainty would do well to just not make absolute statements in campaign context. It’s better to preface a statement with, “I don’t have a crystal ball but . . .” than to talk about certain outcomes.

Tags: campaign statements, elections, misrepresentations, misstatements, NLRA, NLRB, organizing, predictions, Section 7, Section 8(a)(1)

NLRB Office of the General Counsel Advises that Uber Drivers Are Not Statutory “Employees”

By Mark Theodore, Joshua Fox and Jacob P. Tucker on May 15, 2019 Posted in Advice, NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(2), Section 8(a)(5)

In an Advice Memorandum dated April 16, 2019, but released on May 14, 2019, the NLRB’s General Counsel staked out a position in one of the most contentious and influential questions in labor and employment law today: Whether or not Uber drivers – and by implication, potentially, other “gig economy” workers – are statutory employees under the National Labor Relations Act or independent contractors.

If the drivers are employees then they are protected under the NLRA and have the right to organize; independent contractors lack those rights. Applying the Board’s recent analysis of the standard for determining independent contractor or employee status – which was discussed here – the Division of Advice concluded that drivers of UberX and UberBlack were bona fide independent contractors, not “employees.” Advice directed each of the NLRB Regions to dismiss the pending charges against Uber.

Unlike a NLRB decision, an Advice Memorandum is not appealable, and it signifies that the NLRB General Counsel’s position on a particular issue. In this case, the General Counsel’s signal is that the agency will not prosecute the pending NLRA charges on behalf of the Uber drivers.

Applying the SuperShuttle DFW Test to UberX and UberBlack Drivers

The Advice Memo focused largely on the NLRB’s recent SuperShuttle DFW decision to justify its position. That case was factually similar to the situation involving Uber drivers, as it involved franchisees who operated shared-ride vans for SuperShuttle Dallas-Fort Worth, and the Board found that the franchise operators were not “employees”. In that case, the Board reverted to the traditional common-law agency independent-contractor test, which applied ten or more factors in considering whether an employment relationship exists. Significantly, under this qualitative analysis, a critical consideration is the worker’s “entrepreneurial opportunity” And whether the “position presents the opportunities and risks inherent in entrepreneurialism.”

This focus was vital to the Advice’s conclusion. Advice concluded an Uber driver’s ability to work for competitors and maintain control over their vehicles, work schedules, and log-in locations, among other things, supported an independent contractor classification, particularly through the “prism of [the driver’s] entrepreneurial opportunity.”

Takeaways

The obvious impact of this Memo is that under the SuperShuttle DFW standard, the NLRB’s Regional Offices under the Trump Board will not prosecute unfair labor practices under the NLRA on behalf of Uber or similar ride-share drivers, or certify elections or bargaining units petitioned by them. The implication is that other “gig economy” workers will be met with the same resistance from the Trump Board’s Office of the General Counsel and its Regional Offices, however, each independent contractor engagement may be factually distinct and should be independently evaluated under the SuperShuttle DFW test.

This Advice Memorandum presents a significant shift from the NLRB Division’s position under the previous administration in September 2016, when it advised that Postmates’ couriers were statutory employees, not independent contractors, under the NLRA. As we noted in January, the NLRB may also decide to clarify the employee status of other groups of workers through rulemaking.

The issuance of the Advice Memorandum comes as other branches of government – federal and state – have recently waded into the employment status and rights of “gig economy” workers under federal and state wage-and-hour laws, to varying results. For example, the United States Department of Labor recently opined that “gig economy” workers are not entitled to minimum wages or overtime under the Fair Labor Standards Act, while the California Supreme Court recently applied a more restrictive test for whether workers are independent contractors or employees under California law. New York City also recently enacted a first-in-the-nation minimum wage law for for-hire drivers, which could foreshadow a playbook for advocates of “gig economy” workers to shift their focus to the state and local levels of government.

This is an area we have been monitoring from all angles of labor and employment law and seems ripe for continued activity. So stay tuned!

Tags: Advice, independent contractor, Section 7, unfair labor practices

NLRB: Employer’s Reasons For Policy Changes Kept Union’s Information Request Alive Even After Proposals Withdrawn

By Mark Theodore on April 4, 2019 Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, Employer policies, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor Practices

Information requests in the realm of labor relations are simple in theory but can be complicated in practice. We have seen how the topics of information sought by a union can cause skirmishes, sometimes deliberately so. We also have seen that it almost never is a good idea for a party to just deny a request for relevant information on the grounds of “confidentiality” or privacy concerns without first trying to reach an accommodation.

Many times, the reasons cited for a particular change become the battle ground with the union testing the rationale by a well placed information request.

This was the case in Stericycle, Inc., 367 NLRB No. 106 (March 11, 2019). There, the employer is in the medical waste disposal business. While many of its employees are non-union, it does have approximately 150 union represented employees working in two facilities. The parties have a long-standing collective bargaining relationship, which resulted in successful negotiation of a new collective bargaining agreement.

After Bargaining Concludes, Employer Gives Notice That It Is Implementing Two New Policies, Citing Federal Law and Customer Requirements

Ratification was achieved on or about June 26, 2016. Three days after the union notified the employer that the employees had ratified the new collective bargaining agreement, the employer sent the union a notice that it intended to implement two new policies, a “Code of Business Conduct and Ethics” and an “Anticorruption Policy” as of June 1. The union immediately objected to the implementation of the policies, alleging bad faith in that the employer had not raised these issues during bargaining.

The employer responded that it had not unilaterally implemented the policies and that it merely had sent the notice to give the union an opportunity to bargain about them (this despite the fact the employer’s letter said it was going to implement the policies as of a date in the past). The employer’s letter stated the policies “were not only a requirement under Federal Law as it relates to publicly traded companies, and when undertaking government work, but it is also a contractual requirement of the customers we serve.”

Union Continues To Press For Bargaining, Ultimately Asks For Information

The union continued in its quest to bargain over the policies. In correspondence, the employer responded that if the union continued to resist implantation of the policies, the employer would advise customers of the union’s refusal and “this may have an impact on our ability to continue to service certain customers.” The employer’s letter stated it would discuss the “effects” of any such impact on the bargaining with the union.

The union requested information related to the reasons cited by the employer and the new policies. The union requested a list of all customers “including name, frequency of pick up and total volume in years 2014, 2015 and 2016” served by the bargaining unit and communications between the employer and the customers about the issues related to the new policies. The request also sought the “federal, state or local government mandates” concerning the policies.

The employer responded that it was rescinding the policies obviating the need to bargain or furnish information.

The union continued to press the matter citing the employer’s statements about legal mandate, customer requirements, and the potential loss of business to the bargaining unit. The employer continued to refuse to provide information.

The union filed charges.

ALJ Finds Section 8(a)(5) Violation Over Employer’s Refusal To Provide Information

After trial, the Administrative Law Judge had little problem finding that the information requested was relevant to bargaining, including the information about customers. To this, the judge stated in his decision:

Even if I did not find the [customer] information presumptively relevant, I find that the Union nevertheless has clearly established its relevance. [The union representative] credibly testified that the information requests, though initially prompted by Respondent’s announcement that it had implemented the two new polices, were not limited to responding to those policies, but rather, were intended to obtain important information related to [the employer’s] assertions that the absence of those policies could lead to loss of work at covered facilities.

Finding relevance to the information, the ALJ held that the employer’s failure to turn over the information constituted a violation of Section 8(a)(5) of the Act.

NLRB Agrees

The NLRB adopted the ALJ decision. Two members (Chairman Ring and Member Emanuel) noted that “where a party clearly and unequivocally rescinds a bargaining proposal affecting the bargaining unit, a request for information regarding the proposal likely would be rendered moot, although this is not the case here because [the employer] continued to maintain that the absence of the policies could affect its ability to retain certain customers….”

Takeaways

This is an interesting case because it shows how the reasons given for not providing relevant information can come back to haunt the party asserting them.

Asserting a government mandate usually does not obviate the need to bargain if there is any discretion over how the mandate is to be implemented. For example, a statutory raise to the minimum wage probably does not have any discretion: it must be implemented by a date certain. There would be no obligation to bargain over such a government requirement. But, most other governmental mandates are not so clearcut, and any discretion that exists as to their implementation must be bargained.

We already know that simply denying a request for relevant information is likely to result in the NLRB easily finding a violation of the Act. This case demonstrates how the reasons cited by the party denying the request can result in the obligation to supply information living well beyond the life of the proposed change.

Finally, bargaining over a successor contract, reaching agreement, and then rolling out a change to a term or condition of employment shortly thereafter is going to raise eyebrows of the union, if not its suspicions.

Tags: customer information, duty to bargain, duty to provide information, NLRA, NLRB, presumptively relevant information, section 8(a)(5), unfair labor practice, unilateral change

D.C. Circuit Weighs In On NLRB Test For Adjunct Faculty Unionization

By Paul Salvatore, Steven Porzio, David Bayer and Laura Franks on March 21, 2019 Posted in NLRA, Section 7

Colleges and universities should take note of the Court of Appeals for the D.C. Circuit’s recent decision in University of Southern California v. National Labor Relations Board, Case No. 17-1149 (D.C. Cir. Mar. 12, 2019) addressing whether non-tenure track faculty at universities are “employees” under the National Labor Relations Act (“NLRA”), giving them the right to form a union, or whether they are “managers” and thus exempt from coverage under the NLRA.

In its decision, the D.C. Circuit largely upheld the standard set forth in Pacific Lutheran University, 361 NLRB 1404 (2014), a 2014 decision by the Obama-era National Labor Relations Board (“NLRB” or “Board”). The D.C. Circuit took issue, however, with how the Board applied Pacific Lutheran to the University of Southern California’s (“USC”) facts. Specifically, the court rejected the Board’s treatment of a faculty subgroup (e.g., adjuncts) not holding a majority of seats on a university committee (e.g., curriculum committee), so that the subgroup could not be considered “managers” (the so-called “subgroup majority status rule”). It found that such a strict rule was “a major problem” and remanded the case back to the now Republican-controlled NLRB for reconsideration.

Background

The Supreme Court held in N.L.R.B. v. Yeshiva University, 444 U.S. 672 (1980) that the critical inquiry for analyzing whether university faculty are employees or managers under the NLRA is whether they exercise “effective control” over central university policies. In Pacific Lutheran, the Board established a “majority status rule” which measured such “effective control” based on an assessment of whether: (1) faculty were part of university committees; (2) the committees exercised decision-making power as to “central” university policies; (3) faculty constituted a majority of the committee’s membership; and (4) the committee’s recommendations “routinely” became “operative without independent review.”

The Pacific Lutheran Board also defined five key areas for evaluating whether university polices generated by faculty committees are considered “central,” three of which are considered “primary” and two of which are considered “secondary.” Primary decision-making areas include academic programs, enrollment management policies, and finances, while secondary areas include academic policies, and personnel policies and decisions.

NLRB Decision – University of Southern California

In 2016, the Regional Director in Los Angeles applied Pacific Lutheran’s “majority status rule” to a group of non-tenure track faculty at USC. The Regional Director did not analyze whether the faculty at large comprised a majority of university committees, but instead found that, specifically, non-tenure track faculty did not constitute such a majority—creating a “subgroup majority status rule” where the non-tenured subgroup had to make up a majority of the committees. Therefore, non-tenure track faculty were held to be “employees,” not “managers.” The Board adopted the Regional Director’s findings.

D.C. Circuit Decision – University of Southern California

On appeal, the D.C. Circuit affirmed the test articulated by the Board in Pacific Lutheran, but took issue with the Board’s application of the “majority status rule” to a “subgroup majority status rule.” The court stated that the Board erroneously “ignore[d] the possibility that faculty subgroups [e.g., tenured faculty and adjuncts], despite holding different status within the university, may share common interests and therefore effectively participate together” to exercise joint decision-making authority over university policies.

Thus, instead of focusing on whether subgroups, like adjuncts, make-up a strict majority of committees, the court held that the Board must engage in a two-step inquiry: (1) whether a faculty body as a whole exercises effective control based on the Pacific Lutheran factors; and (2) if so, whether the petitioning subgroup is included in that managerial faculty body. The court emphasized that the Board must treat the two steps of the Pacific Lutheran test separately, “and may not conflate them by asking whether the petitioning subgroup alone exercises effective control.”

The court remanded the case for the Board to reapply the D.C. Circuit’s modification of the Pacific Lutheran test to the non-tenure track faculty at issue in University of Southern California.

Takeaways

The Pacific Lutheran framework for determining the managerial status of university faculty lives on, but with the D.C. Circuit’s limiting gloss. The court’s rejection of the “subgroup majority rule” may make it more difficult for non-tenure track faculty to unionize because the pathway to “employee” status has been narrowed. But the full impact of the D.C. Circuit’s decision is yet unknown, as the Pacific Lutheran test could now be reconsidered by the Trump Board, which already has overturned several Obama-era decisions.

NLRB Rules Employer’s Handbook Statement That Benefit Available To “Non-Union Employees” Violates Act

By Mark Theodore on February 26, 2019 Posted in Employer policies, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized

During the last decade, a number of NLRB decisions faulted employers for written policies that were considered to be overbroad in violation of the National Labor Relations Act. These rulings sprang largely from the NLRB’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), where the Board set forth a standard for evaluating the lawfulness of employer policies that did not directly implicate Section 7 rights. The Board in Lutheran Heritage held it evaluated otherwise lawful language to determine if the “employees would reasonably interpret the language as restricting Section 7 rights.” Under Lutheran Heritage the Board was supposed to view the totality of the policy and not fragments. This decision was a well-intended attempt to provide a framework for evaluating the language of employer policies. In the years after its issuance, however, the Board took to something like a grand inquisition of all employer policies and often expanded the test by replacing the “would” with “could.” The Board often examined fragments of a policy without regard to the full context. Allegations regarding handbooks became something of a cottage industry as violations were sought to gain leverage in labor disputes. See here and here, for example.

The Lutheran Heritage standard was discarded by the Board last year.

Since late last year, very few NLRB decisions have issued involving handbooks. The General Counsel has given a strong indication he is not pursuing an aggressive stance on employer policies. This is not surprising, of course. The Board, currently anyways, clearly is not receptive to these kinds of violations. A number of recently issued NLRB decisions note that the involved union withdrew handbook allegations in pending litigation. This action was taken to avoid getting decisions from the current NLRB finding policies to be lawful. That just would not do in today’s fractured labor relations climate. When there is a change in the administration, and the make-up of the Board changes, there is little doubt the handbook-violation industry will ramp-up with a renewed fervor.

This is not to say that all handbook violation cases have gone away. There are a variety of policies the Board would find in violation of the Act. One such case is the Board’s recent decision in Constellation Brands, U.S. Operations, Inc., 367 NLRB No. 79 (January 31, 2019). This case involved a number of allegations stemming from a hard fought union campaign. In the original complaint there were a few allegations that the employer’s policies were overbroad in violation of the Act. While the litigation was pending, the Board overruled Lutheran Heritage, prompting the union and General Counsel to seek withdrawal of all but one of the handbook allegations.

Handbook Stated Benefit Given to Non-Union Employees

The remaining allegation concerned the language in the employer’s incentive plan which stated “All non-union full time and regular part-time employees of the Company are eligible for the incentive plan.” The General Counsel alleged that this language violated Section 8(a)(1) of the Act because it expressly implicated Section 7 rights.

The Administrative Law Judge agreed, holding:

Board precedent is clear and unmistakable on this issue: employer rules, statements, provisions or plans that afford benefits to employees contingent on their non-representational status violate Section 8(a)(1) of the Act. . . .Employers can avoid such coercive impression by simply using language that conveys the messages that wages and benefits of represented employees are ultimately subject to what the parties agree to in collective bargaining–without the inference that they are automatically disqualified.

On appeal, the Board affirmed with Member Emanuel observing that the language at issue “conveyed the message that employees choosing union representation are automatically ineligible for the plan.”

Takeaways

The unbridled scrutiny of employer policies is dormant. For now. This case is a reminder that that policy language discussing the applicability of benefits to”non-union” employees should be accompanied by a fuller explanation that employees represented by unions are subject to collective bargaining.

The case also is a reminder of how far the law under the National Labor Relations Act can swing in a short period of time.

Tags: Boeing, employer handbooks, employer policies, Lutheran Heritage, NLRA, NLRB, overbroad language, Section 8(a)(1)

NLRB Majority: Employer Not Required To Disclose Identity Of Bargaining Unit Informant

By Mark Theodore on February 19, 2019 Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, General Counsel, NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized

An employer’s duty to provide information to the union representing its employees is a frequent of topic of interest to labor relations practitioners because it is very easy to violate the law. For example, an employer’s assertion that the information is confidential is not enough to justify failing to turn over the information. And, for a brief period of time we even saw it become unlawful for an employer to fail to respond to an information request even though there was no legal obligation to provide any information. Finally, we have reviewed how some unions seek to weaponize information requests by asking for information, such as how an employer spent any savings from a tax cut, in a blatant attempt to cause an employer to refuse to respond thereby giving reason to file unfair labor practice charges.

In recent years, the NLRB has even demolished black letter precedent holding that witness statements need not be disclosed pursuant to an information request.

In Michigan Bell Telephone Co., 367 NLRB No. 74 (January 24, 2019),the NLRB addressed a situation where the union had requested the identity of a workplace “informant,” a bargaining unit employee who had reported potential misconduct, and the employer refused to provide the information.

Background – A History of Overtime Disputes

The employer provides telephone service through the use of technicians who are represented by a union. The employer historically required the employees to work a great deal of mandatory overtime. A few years ago, union members got together and protested mandatory overtime by holding a “family night,” whereby the employees banded together and refused to work on a certain evening. Like most collective bargaining agreements, the parties’ agreement prohibited strikes. The union and employer had a dispute over the family night which resulted in a settlement agreement which included discipline for all unit employees who participated in the event.

The employer issued a new mandatory overtime policy which automatically extended the workday until management expressly released the techs. At a union meeting held shortly after the announcement of the new policy, bargaining unit members expressed their anger, and at least one technician suggested the group engage in another family night.

An informant employee told management that another family night could possibly occur that evening. Management assembled additional supervision to confront any employees who attempted to leave work without permission. 19 technicians returned without authorization and were questioned by management. All stated they were acting individually and not in a concerted fashion. The employer ordered all 19 technicians to return to work, and all returned to the job, except for five technicians who refused. The employer suspended the five technicians.

Union Wants Name of Informant and Other Information

The union learned that an informant had given information to the employer. The union requested the identity of the informant, a summary of what the informant told the employer, and a list of who in management had received the information. The employer told the union it did not feel comfortable turning over any of the information requested and refused to do so.

The union filed a grievance alleging that the employer violated a provision of the collective bargaining agreement which states that if any union employees engage in a prohibited work stoppage, “without the authority and sanction of the [union], the Parties shall cooperate to enable [the employer] to carry on its operations without interruption or other injurious effect.”

The General Counsel issued a complaint asserting all the requested information sought by the union was relevant and the employer should have provided it. The complaint also contained an allegation that the delay in turning over the information was a separate violation of the Act. After a trial, an Administrative Law Judge dismissed the complaint finding the information was not relevant to the processing of the grievance.

NLRB Majority Concludes Informant Identity was Not Relevant, But Summary of Information Triggered Duty to Provide Information

The NLRB majority (Chairman Ring and Member Kaplan) reviewed the law, and noted, “[a]n employer, as part of its duty to bargain, must provide requested information to a union if that information is relevant to the union’s duties as the employees’ collective-bargaining representative, including the union’s grievance processing duties.” Applying this standard to the case, the NLRB noted that the grievance filed by the union concerned whether the contract’s prohibition against unauthorized work stoppages had been violated. In particular, the issue in the grievance was whether the employer had an obligation to cooperate with the union over stopping or minimizing such disputes. The Board concluded:

The summary [of information provided by the informant] is relevant to the Union’s evaluation and prosecution of [its] grievance because it directly answers the question of what the Respondent knew about the potential for a family night ….However, the Informant’s identity and the distribution list are not relevant to the …grievance. Whether the Respondent had an obligation under [the collective-bargaining agreement] to cooperate with the Union does not depend on the identity of the specific employee informant or the identities of the managers to whom the Respondent disseminated the Informant’s tip.

Thus, the employer’s failure to turn over the summary of information was a violation of Section 8(a)(5) of the Act. Because the NLRB found the summary of the informant’s tip was relevant, the Board also found the employer violated Section 8(a)(5) by failing to respond to the information request in a timely fashion.

Dissent Would Find All Information Relevant

Member McFerran agreed that the summary of information was relevant but would also have found that the identity of the informant and the list of managers to whom the informant’s information was distributed were also relevant. In Member McFerran’s opinion, “disclosure of that information would allow the Union to attempt to question the Informant and the people on the distribution list to verify the accuracy of the summary.”

Takeaways

If employer’s had to disclose the names of all witnesses to events in a bargaining unit then it is very likely no one would ever come forward to report misconduct. Anyone who has ever participated in a labor arbitration knows it is rare for bargaining unit employees to testify against one another. In this case, the decision of the majority was made easier by the fact it was undisputed the employees did not have a right to refuse overtime, in a concerted or other fashion. That a family night would violate the no strike provision was undisputed. The issue being litigated in the grievance was fairly novel, and fairly narrow: whether the employer had an obligation to cooperate with the union in the latter’s attempts to stop an unauthorized walkout. This dispute did not depend at all on the identity of the informant or the information provided by the informant. For this reason, it is doubtful this case can be interpreted as a blanket rule that employers must not identify witnesses. Still, it is instructive, and it again shows the perils of simply not responding to an information request, even when the employer believed the information was not relevant.

Tags: confidentiality, duty to provide information, informants, NLRA, NLRB, relevant information, section 8(a)(5), witnesses

Unanimous NLRB: Context Matters – Asking Employee Whether He Saw Union Organizer Not Unlawful Interrogation

By Mark Theodore on February 13, 2019 Posted in General Counsel, NLRA, NLRB, Section 8(a)(1), Uncategorized

How the NLRB treats employer statements made to employees in the context of union organizing or other protected activity has been a frequent topic of discussion. While the actual case law analyzing the coerciveness of an employer statement has not changed, the lawfulness of the statement often depends on the make-up of the Board at the time the case is reviewed. In the last few years, we have seen how the NLRB had a tendency to rigidly treat an employer’s statement as coercive if it was made in the context of organizing. This is true of employer questions to employees that touch on organizing. For example, in recent past the NLRB found an innocuous question to an open union supporter to be unlawful even if though there was no hint of actual coercion.

In Johnston Fire Services, LLC, 367 NLRB No. 49 (January 3, 2019), the employer fired an employee during an active union organizing drive. During the termination discussion, the employer asked whether the employee had seen the union organizer. The Board ruled that this question was not unlawful interrogation given the overall circumstances.

Background – Small Voting Unit – Hotly Contested Organizing

The employer, an installer of sprinkler systems, had six employees performing this work. The union sought to represent the six employees and filed a petition for a vote. During the election campaign, the employer terminated two employees. Although the union filed unfair labor practice charges over the terminations, and despite the fact 33 percent of the voting unit had been discharged, the union went ahead with the election. The resulting tally of ballots was 2 votes for the union, 2 votes for the employer and 2 challenged ballots (the two discharged employees).

The General Counsel issued a complaint over the discharges and a variety of alleged 8(a)(1) statements, including the employer’s “interrogation.”

Alleged Interrogation Occurred During Termination Meeting

One of the employees in the voting unit had been previously counseled for tardiness. During the campaign, the employee showed up late to work and encountered the owner of the employer in the parking lot of a job site. The owner immediately terminated the employee. The discussion between the owner and the employee was the subject of the unfair labor practice allegation for interrogation. During the discussion, the employee asked if he was being fired for speaking with the union organizer. The employer insisted the employee was being fired for his attendance but in the course of the conversation asked the employee if he had seen the organizer.

The General Counsel issued a complaint alleging this question amounted to unlawful interrogation.

ALJ Dismisses

The ALJ ultimately dismissed all allegations in the complaint, primarily because the testimony just did not support unlawful discharges.

As to the interrogation, the ALJ conducted a very thorough analysis of the question using the factors set forth in Rossmore House, 269 NLRB 1176, 1178 (1984), where the Board held that the coerciveness of an alleged statement or question must be evaluated under the totality of circumstances. Specifically, the Board applies five factors:

The background, i.e., is there a history of employer hostility and discrimination?
The nature of the information sought, e.g., did the interrogator appear to be seeking information on which to base taking action against the individual employees?
The identity of the questioner. i.e. how high was he in the Company hierarchy?
Place and method of interrogation, e.g. was employee called from work to the boss’s office? was there an atmosphere of “unnatural formality”?
Truthfulness of the reply.

Applying these factors, the ALJ found that there was no history of hostility against unions. The nature of the information sought was not something to be used to take action against the employee because the decision to terminate already had been made and communicated. While the employer, as the “owner,” was the highest ranking official, the ALJ found this factor did not support a violation because the owner often performed work alongside the employees, and the employer was very small. The fact the question was asked in the parking lot of a worksite, as opposed to a manager’s office, did not lend itself to being too formal. The ALJ found the employee answered truthfully, which meant he felt he had nothing to hide.

Board Affirms

The NLRB affirmed the dismissal of the interrogation allegation noting that the employer “had already made the decision to terminate both employees for attendance issues before learning that they had engaged in protected activity.”

Takeaways

An employer’s actions in terminating a substantial percentage of a voting unit during an organizing election campaign are going to be scrutinized very carefully by the NLRB. In this case, the terminations were deemed to be lawful and so the employer’s question was probably easier to dismiss.

Still, the same analysis should be applied by the Board no matter the circumstances. The law concerning evaluation of an alleged interrogation is over thirty years old. The factors set forth in Rossmore House are subject to interpretation, of course, but it is nice to see a thorough analysis of how each factor was applied by the ALJ. This can give some guidance as to how future such allegations should be analyzed. Of course, as noted, the make-up of the Board matters. This is one of those cases where the outcome might have been different if it had reached the Board a couple of years ago.

Tags: coercive statements, interrogation, NLRA, NLRB, Section 8(a)(1)

Are Charter Schools Covered by the National Labor Relations Act? NLRB to Reconsider Its Jurisdiction over Charter Schools

By Mark Theodore, Joshua Fox and Austin McLeod on February 6, 2019 Posted in Bargaining units, Decertification elections, NLRA, NLRB, Section 7

On February 4, the NLRB granted United Federation of Teachers, Local 2, AFT, AFL-CIO’s (the “Union”) request for review of the Regional Director’s Decision and Direction of Election concerning a decertification petition filed by several teachers at a charter school. In so doing, the Board invited filing of briefs regarding whether the Board should decline jurisdiction over charter schools as a class under Section 14(c)(1) of the Act and modify or overrule its prior precedent on this issue Hyde Leadership Charter School-Brooklyn, 364 NLRB No. 88, (2016) and Pennsylvania Virtual Charter School, 364 NLRB No. 87 (2016) – which held that the Board should exercise jurisdiction over charter schools.

In a sharp dissent, Member McFerran argued that a change in the composition of the Board is not a reason for revisiting precedent, which she observed was the only basis for the Board’s departure here. Member McFerran recently complained in a separate dissent about overturning precedent.

Briefs will be filed over the next several weeks, and it appears the Board is seriously considering the Union’s petition requesting that the Board decline to exercise jurisdiction as to all charter schools, which would have serious ramifications for employees at these institutions.

Background

The Kipp Academy Charter School (“KIPP Academy”) serves elementary and middle school students in Bronx, New York. On January 25, 2017, two teachers filed a decertification petition seeking to decertify the Union as the collective bargaining representative for all full-time and regular part-time teachers, deans, counselors, social workers, teaching fellows, team leaders, specialists, and the director of support services, excluding all other employees, including substitute teachers, clerical, maintenance, supervisors, managers, and guards. The Union moved to dismiss the petition on three grounds:

KIPP Academy is not an “employer” under the NLRA;
the petitioned-for bargaining unit is not appropriate because the group shares a community of interest with Department of Education teachers; and
the NLRB should exercise discretion and decline to assert jurisdiction in the matter.

The Regional Director directed an election in the petitioned-for bargaining unit after ruling against the Union on all three issues.

First, he found KIPP Academy was an “employer” under Section 2(2) of the Act and not an exempt state or political subdivision because the charter school failed each prong of the Supreme Court-established test for this inquiry: (1) whether the employer was created directly by the state, so as to constitute departments or administrative arms of the government or (2) administered by individuals who are responsible to public officials or to the general electorate. See NLRB v. National Gas Utility District of Hawkins County, 402 U.S. 600 (1971). The Regional Director found that KIPP Academy failed both prongs of the test.
Second, applying the community-of-interest factors, the Regional Director found the petitioned-for bargaining unit was appropriate.
Third, he found asserting jurisdiction was supported by policy reasons that far outweighed those supporting the Union’s argument that jurisdiction should be declined under Section 14(c)(1). Section 14(c)(1) of the NLRA provides the Board may decline to assert jurisdiction over labor disputes involving any class or category of employees where the effect of the dispute on commerce is not sufficiently substantial to warrant jurisdiction. The Union argued jurisdiction should not be asserted because the New York State Public Employment Relations Board (“PERB”) asserted jurisdiction over KIPP Academy in the past and KIPP Academy is heavily regulated by the Board of Regents and the Department of Education, analogizing charter schools to state-regulated industries, such as horse racing and dog racing (the majority in Hyde Leadership found this argument unavailing). However, the Regional Director found that since Hyde Leadership was decided, PERB has uniformly declined jurisdiction over New York State charter schools, which has left the KIPP Academy employees in “jurisdictional limbo.”

Three-Member Board Majority Grants Review

In its February 4 Order, the majority first acknowledged the Regional Director correctly applied the two-pronged test established in National Gas Utility District of Hawkins County, as described above.

However, the majority found review was warranted by simply stating the case raised “substantial issues whether the Board should exercise its discretion to decline jurisdiction over charter schools as a class under Section 14(c)(1).” In a footnote, the majority pledged to “keep an open mind with respect to final disposition of the issues presented here,” an acknowledgement of the charge made by the dissent that the Board’s conclusion essentially was essentially predetermined.

The Dissent Argues there is No Need to Disturb Precedent

In her dissent, Member McFerran stated she would deny the Union’s request for review, as the jurisdictional question was correctly decided under well-settled Board law, which is rooted in the Supreme Court’s Hawkins County decision. Stating the Hawkins County test was straight-forward and had been consistently applied by the Board to charter schools, the Board should properly assert jurisdiction. The dissent stated there was no new policy justifications or legal grounds to revisit the Board’s approach to analyzing jurisdictional questions involving charter schools and efforts to not apply Hawkins County were inappropriate in this instance. Further illustrating her opposition to the majority’s ruling, she continued to say “a change in the composition of the Board is not a reason for revisiting precedent” and “the majority’s notice is a solution in search of a problem” – a strong admonition of the concerns the majority expresses, as well as the veracity of its motivations.

Hyde Leadership Charter School—Brooklyn and Pennsylvania Virtual Charter School Decisions

On August 24, 2016, in two separate cases, Hyde Leadership Charter School-Brooklyn and Pennsylvania Virtual Charter School, the NLRB relied on the Hawkins County test to hold charter schools in New York and Pennsylvania, respectively, were not political subdivisions within the meaning of Section 2(2) of the NLRA and were subject to the Board’s jurisdiction. The Board found the entities were founded by private individuals, despite the fact that the Board of Regents approved the Hyde Leadership Charter School charter and the Pennsylvania Secretary of the Department of Education signed the Pennsylvania Virtual Charter School charter. Stating that the Pennsylvania Virtual Charter School decision “was based on the facts of this case,” the Board made it clear that a bright-line rule over jurisdiction over charter schools nationwide was not created from its decision.

Takeaways

Charter schools have been in the press a great deal lately. The Board’s potential consideration of its jurisdiction over charter schools on a class-wide basis has significant consequences. If the Board ultimately declines to exercise jurisdiction over charter schools, then unionized employees would fall outside of the protection of the Act, which, unlike many state laws, allows for employee choice of union representation through a government supervised secret ballot election. Under many state laws governing public schools, such safeguards are not present.

However, as the Regional Director observed, in the event the Board declines to exercise jurisdiction, then charter schools like KIPP Academy may be left in “jurisdictional limbo” if PERB (or another corollary to the NLRB at the state or public employer level) also declines to exercise jurisdiction, which apparently has been the case for several years.

While the Board’s Order was brief, Member McFerran’s dissent stands as a clear rebuke of the majority’s efforts to revisit precedent in the lack of new policy justifications, which has been a consistent theme of Member McFerran’s recent dissents.

Briefs by the parties are to be filed with the Board by February 19 and briefs by amici by March 6, 2019. The parties will then have until March 20, 2019 to file responsive briefs. The case is KIPP Academy Charter School, 02-RD-191760. A copy of the Board’s announcement can be found here. We will keep you posted as the Board revisits this issue.

Tags: bargaining units, charter schools, decertification, jurisdiction, NLRA, NLRB, Section 7