Labor Relations Update

Hands Off My Ballot: NLRB Finds that Solicitation of Mail-Ballots is Objectionable Conduct That May Warrant Setting Aside an Election

Since the onset of the COVID-19 pandemic, mail-ballot elections—rather than manual, in-person elections, have been mandatory for most NLRB representation elections. The NLRB’s recent ruling, on June 9, 2021, in Professional Transportation Inc., 370 NLRB 132 (2021), provided important guidance regarding when solicitation in the context of such elections constitutes objectionable conduct, such that it can set aside an election. Solicitation typically comes in the form of when the employer or union offers to collect a voter’s ballot and mail it to the Region.  In this case, the Board held that solicitation constitutes objectionable conduct, but importantly, such conduct is a basis for setting aside an election only where the evidence shows that the solicitation affected a determinative number of voters.

Background

In April 2020, the Union filed a representation petition. The election was conducted by mail, and ballots were mailed to employees. Following the election, the Employer objected on the grounds that Union representatives contacted eligible voters and offered to collect and mail their ballots.

Acknowledging that Board precedent does not resolve whether mail-ballot solicitation is objectionable conduct, the Regional Director held that the Employer’s offer of proof did not warrant a hearing as a matter of law and failed to establish a prima facie case of objectionable conduct.

The Employer requested review of the Regional Director’s decision, and the Board granted the request.

Analysis

The Board affirmed the Regional Director’s decision overruling the Employer’s objections, but found that solicitation of mail ballots does constitute objectionable conduct and may warrant setting aside an election in certain circumstances. The Board’s decision comes in the wake of Fessler & Bowman Inc., 341 NLRB 932 (2004), in which the Board unanimously held that it is objectionable conduct for a party to handle employees’ mail ballots. Citing  Fessler, the Board emphasized its obligation to protect the integrity and neutrality of elections and to ensure that elections are conducted under as close to “laboratory conditions” as possible.

Recognizing that mail-ballot elections may be “more vulnerable to the destruction of laboratory conditions than are manual elections,” the Board described the ways in which mail-ballot solicitation constitutes objectionable conduct.

First, the Board explained that a party’s offering to collect ballots contradicts voting instructions stating that parties other than the voter may not handle or collect ballots.

Second, the Board noted that ballot solicitation suggests to employees that a party other than the Board is involved in running the election, thus undermining the Board’s responsibility in controlling the election process. In light of these considerations, the Board concluded that even where ballot solicitation does not result in actual ballot tampering or loss of ballot secrecy, it nevertheless undermines the integrity of the election and constitutes objectionable conduct.

Significantly, however, the Board found that ballot solicitation does not necessarily require that an election be set aside. Rather, an election must be set aside only where the evidence shows that the ballot solicitation affected a determinative number of voters.

In determining whether solicitation warrants setting an election aside, the Board found it relevant to consider evidence of:

  • the number of unit employees whose ballots were solicited;
  • the number of unit employees who were aware of ballot solicitation; and
  • whether a party engaged in a pattern or practice of solicitation.

The Board further explained that the test regarding whether solicitation occurred is objective—that is, the inquiry is whether a party’s conduct could reasonably be interpreted as ballot solicitation. Importantly, the Board also noted that merely asking an employee if they have received their ballot, or offering an employee assistance with understanding the election process, is not ballot solicitation.

Dissenting in part, Member Emanuel favored establishing a bright-line rule that elections should be set aside whenever a party is shown to have solicited ballots, irrespective of the number of voters affected. Additionally, Chairman McFerran expressed concerns that parties could easily manipulate dissemination of information about solicitation in order to set aside an election; accordingly, she would only consider the number of employees who were made aware of solicitation by a solicited employee.

Application

As is typical, the Board held that its decision applies retroactively to the instant case and to all pending cases. In the instant case, the Board concluded that the Employer’s offer of proof was sufficient to show that the Union solicited employee ballots. However, it found that there was insufficient evidence to set aside the election because the misconduct was limited to at most two voters, which could not have affected the election’s outcome, given that the Union prevailed by at least ten votes.

Takeaways

As mail-ballot elections continue to become the norm  across the country, this case expands the opportunities for parties to raise challenges. Chairperson McFerran declined to endorse the view that mail-ballot elections are inherently more vulnerable than manual-ballot elections, and she opined that it is “time for the Board to reevaluate its historic preference for manual elections and to consider expanding and normalizing other ways to conduct elections on a permanent basis.”

Once the Board shifts with new appointees, there is a chance that mail, telephone, and even electronic voting may become more normalized. Such procedures may illuminate new vulnerabilities in the election process, and although it remains unclear what other behaviors may be objectionable conduct that warrants setting an aside an election, it is likely that the Board will continue to seek ways to safeguard the integrity of elections.

BREAKING: President Biden Nominates Union-Side Attorney Gwynne Wilcox to Fill NLRB Seat

On Wednesday, May 26, 2021, President Biden nominated Gwynne Wilcox to fill the last remaining vacancy on the National Labor Relations Board (“Board”).  If confirmed by the Senate, Wilcox would be the second Democrat on the Board, joining Board Chair Lauren McFerran (who had been a member of the Board since 2014, and was appointed chair on January 20, 2021).  Wilcox is a senior partner at the Union-side labor and employment firm of Levy Ratner PC and serves as associate general counsel for the largest Local of the Service Employees International Union (“SEIU”).  Wilcox is the first African-American woman ever appointed to the Board.

It is unclear how long the confirmation process will take.  Even if Wilcox is confirmed by the Senate, the Board will continue to have a majority of Republican members until William Emanuel’s term expires in August 2021.  President Biden is then expected to nominate another Democratic candidate to fill Member Emanuel’s vacancy, and if the nominee is confirmed, the Board will tilt to a 3-2 majority of Democrats.  As we have discussed previously, once that occurs, the Board is expected to reverse a number of decisions issued during the Trump Administration.

We will continue to follow Wilcox’s nomination and potential confirmation.  Stay tuned!

NLRB Majority: Employer May Continue “No Recording” Rule, Even After Unlawfully Applying it to Single Employee

In AT&T Mobility LLC , 370 NLRB No. 121 (2021), the NLRB majority (Members Ring and Emanuel) held that the Employer could lawfully maintain a workplace policy prohibiting its workers from recording conversations with their co-workers, managers or third-parties, even though its application in one particular circumstance was found unlawful.  Notwithstanding the fact that the rule had been applied unlawfully, the Board majority concluded that the policy itself was lawful under Boeing Co., 365 NLRB No. 154 (2017), and overruled in part its decision in Lutheran Heritage Village Livonia, 343 NLRB 646 (2004), finding that an instance of unlawful application of a facially neutral rule does not automatically warrant a finding that the rule can no longer be lawfully maintained.

Importantly, however, Chairman McFerran disagreed in her dissent, foreshadowing how a newly-constituted Board may decide the case differently and/or abandon the Boeing framework.

Background

An employee at a retail location, who was also a union shop steward, recorded a termination meeting between the Company’s representatives and a fellow bargaining unit-member, who had requested the employee’s presence at the meeting.  Upon learning that the shop steward recorded the meeting, his manager made him delete the recording on his work phone and threatened him with some unspecified adverse action.

The Board’s Holding 

Applying the Boeing framework, and the cases discussed in Boeing and since, the majority reiterated that an Employer’s no-recording policy constitutes a lawful “Category 1(b)” rule, meaning that the “potential adverse impact on protected rights” was “outweighed” by the employer’s business justification.  As a result, such types of rules are always lawful under Boeing. 

However, the Board also found that Employer unlawfully applied the policy when it threatened the employee, who was engaged in protected activity at the time the recording was made, for violating the policy.  The Board then consulted its decision in Lutheran Heritage, 343 NLRB 646 (2004), wherein the Board applied a three-part framework for determining whether an employer violates Section 8(a)(1) of the Act by maintaining a neutral work rule if employees reasonably construe the rule to prohibit protected activity.  The Board held that a policy could be rendered unlawful, and subject to being rescinded as part of a remedy if the policy had been “applied to restrict the exercise of Section 7 rights.”  Instead of following Lutheran Heritage and ordering the Company to rescind the policy, the Board overruled Lutheran Heritage in part, and held that an employer could still maintain a workplace rule that was “applied to restrict” an employee’s rights.  In reaching its conclusion, the Board wrote: “A blanket prohibition on the continued maintenance of such rules, simply because of a single instance of unlawful application — even if that single instance is carried out by a misguided low- or mid-level supervisor whose action does not reflect corporate policy — fails to give proper weight” to the employer’s legitimate interests in maintaining the rule.  The Board also noted that in other instances, the Board has ruled that otherwise lawful rules could remain in place, even if they restricted the exercise of an employee’s rights in certain circumstances.  The Board declined to require the Employer to disavow its no-recording policy.

Member McFerran’s Dissent

The dissenting member of the panel, Board Chairman Lauren McFerran, took direct aim at the Board’s ruling in Boeing, arguing that it permitted employers to maintain rules that “reasonably tend to chill employees in the exercise of their rights under the Act, while failing to require that employers narrowly tailor their rules to serve demonstrated, legitimate interests.”   In McFerran’s view, Boeing’s “primary aim” is to “preserve employer prerogatives, not to protect employee rights.”  While McFerran agreed that the policy was “applied to restrict” the employee’s union activity in this case, she found that employer’s no-recording policy was overbroad and should have been struck down.

 Takeaways

The decision most certainly gives insight into some of the changes the Board may take in the coming months as its composition shifts.  Currently, the Board may be less likely to penalize employers who maintain workplace rules that are neutral on their face with respect to protected activity, but are unlawfully restrictive or overbroad, as applied to certain circumstances.  The Board continued to uphold the framework established in Boeing, and continued its evisceration of Lutheran Heritage, by finding that neutral policies should not be struck down when they have been applied to a single instance in an unlawful manner.  Chairman McFerran’s dissent provides a window into future rulings of the Board.  McFerran clearly targeted Boeing with her scathing commentary that the category-based framework for the evaluation of employer handbook rules and policies was designed to benefit employers, not employees.  Reading the tea leaves, Boeing may certainly find itself on the “chopping block” in the coming months.

Guidance: Can Employers of Unionized Workers Require the COVID Vaccine?

The Coronavirus pandemic has spawned a lot of questions—and a lot of headaches—for employers, who within the past year have needed to adapt to rapidly changing health, regulatory, and technological landscapes. With the long-awaited arrival of a vaccine comes even more questions for employers: Can I require my employees to get vaccinated? Can I require employees who don’t get the vaccine to follow other safety precautions? For employers with unionized employees, there are additional considerations under the NLRA. Employers have bargaining obligations to their unionized workforces, so whether employers can require employees to be vaccinated, where/when/how vaccines will be administered, and whether discipline can be imposed on those who refuse a vaccine will depend on the terms of the collective bargaining agreement and/or require additional bargaining with the employees’ union.

We have developed several materials to help employers navigate the potential bargaining obligations with respect to mandatory vaccination policies. Visit our website to view an infographic of the decision-making process employers should engage in when considering a mandatory vaccine policy for unionized employees. Our website also offers a list of frequently asked questions (“FAQ”), answering common questions from clients and employers based on the state of NLRB case law today.

As always, we will continue to monitor the latest updates and trends concerning Coronavirus and the workplace. Check back here, or sign up for the email newsletter, to stay up-to-date!

NLRB: Employer’s “Hard-Bargaining” Proposals—By Themselves—Did Not Violate Duty to Bargain in Good Faith

In Universal Health Services, Inc., 370 N.L.R.B. No. 118 (April 30, 2021), the Board dismissed a complaint alleging that an employer’s bargaining proposals seeking significant concessions violated the duty to bargain in good faith.  Notably, the Board found that even when faced with extreme proposals, a union must still “test” the employer’s willingness to make concessions, and must itself contribute to bargaining by offering counterproposals.

Factual Background

In anticipation of the expiration of their prior CBA in December 2016, an employer and a union began negotiations over a successor agreement.  The employer warned that it sought to rectify “numerous deficiencies” in the prior agreement and alter many of its provisions.  The employer opened negotiations with a set of four employer-friendly proposals: (1) its Grievance and Mediation proposal, along with its No Strikes, No Lockouts, and Management Rights proposals; (2) its Discipline proposal making disputes over discharges no longer subject to binding arbitration; (3) its Union Security proposal removing the union security provision in the parties’ expired CBA; and (4) its Wage proposal, which gave it substantial discretion over pay.

During the course of negotiation, the union’s counsel was fond of using profanity and colorful language to demonstrate his contempt for the employer’s positions.  He labeled one proposal as “a nothing burger” and called another “an absolute waste of everyone’s time.” He told the employer’s representatives to “kiss my a–” and to “get the f— out of here.”  The union counsel responded to employer proposals with one-word denials such as “reject” or “no”, and often failed to offer written counterproposals.  In contrast, the employer made significant concessions in response to ongoing discussions, such as by lessening the length of time disciplinary actions would remain in employees’ files or offering to work with the union to place employees within its proposed pay ranges.  At one session, the employer noted that the union had failed to counter 15 of its proposals, while the employer had responded to all but two from the union.

More than 18 months after the employer presented its initial proposals, the union made counterproposals containing significant revisions to what had already been agreed upon by the parties.  Nonetheless, the employer discussed the counterproposals, and continued to express its willingness to negotiate.  In October 2018, the employer received a petition signed by a majority of employees in the bargaining unit, which it considered clear and unequivocal proof that the union had lost the support of a majority of unit employees.  The employer withdrew recognition from the union, and began to unilaterally implement its proposals.

The union filed unfair labor practice charges.  An Administrative Law Judge determined that the employer engaged in bad faith bargaining in violation of Section 8(a)(5).  The employer appealed to the Board.

Analysis

A Board majority (Members Ring and Emanuel) reversed the ALJ and dismissed the complaint.  The Board began its discussion by observing that while Section 8(d) of the NLRA requires parties to negotiate in good faith, this obligation “does not compel either party to agree to a proposal or require the making of a concession.”  Thus, the Board must ultimately determine, under the totality of the circumstances, whether “the employer is engaging in hard but lawful bargaining” or is instead “unlawfully endeavoring to frustrate the possibility of arriving at any agreement.”

Where it is alleged that an employer violated its duty to bargain in good faith on the basis of its bargaining proposals, the Board will not evaluate whether specific proposals are “acceptable” or “unacceptable”, but must consider whether the employer seeks to “frustrate agreement” on the basis of objective factors.  More significantly, the Board will not find an employer failed to bargain in good faith “if the union assumes that the employer’s initial proposals reflect unalterable positions without testing the employer’s willingness to engage in the give and take of collective bargaining.”

The Board pointed out that the employer had informed the union that one of the disputed issues, a union security clause, was ultimately included in a CBA with another union after a “back and forth” process.

The Board emphasized that the employer did not insist on its proposals as all-or-nothing.  Instead, the employer “advanced its proposals as entry points for discussions, repeatedly invited the Union to offer counterproposals, never refused to entertain counters on the rare occasions the Union offered them, and ultimately withdrew its no-strike proposal”, as well as other concessions.  The Board found that under these facts, the employer did not seek to frustrate any possible agreement.

The Board noted that the employer did not violate its duty to bargain by seeking significant concessions in its initial proposals, and observed that it had “substantial leverage” because a long time had passed since the employees had received raises.  The Board found that the employer was not required to bargain against itself in response to the union’s absent counterproposals, and that it was not bad-faith bargaining to present a “wish list” or “kitchen sink” proposal in its initial position.  As a result, the Board reversed the lower court and dismissed the union’s complaint, holding that due to the above considerations, as well as the lack of any evidence of improper conduct away from the bargaining table, the employer did not engage in bad faith bargaining.

Chairman McFerran Dissents

In her dissent, Chairman McFerran noted there was no disagreement over the basic legal principles but that “[w]e differ, and differ sharply, on how to apply the law to the facts presented.”  Specifically, the Chairman noted that the Board recently ruled that the employer’s conduct in a similar case, discussed here, violated the Act, and that “an employer can make a mockery of the duty to bargain by adhering to proposals which clearly demonstrate an intent not to reach an agreement” with a union.

Takeaways

This case demonstrates how the conduct of the parties can greatly impact a determination of whether the bargaining constituted bad faith.  The majority here noted that the employer made some hard bargaining proposals which might seem distasteful on first blush.  The fact that the union failed to respond materially other than to reject the proposals without making a counter-proposal left the employer with a difficult choice:  modify its own proposal or simply hold onto the proposal until a meaningful response was received.  However, employers should note that while it is permissible to take an “extreme” position initially, employers must still engage in meaningful discussions and seriously consider a union’s counterproposals during subsequent bargaining.  The outcome of the “give and take” between employer and union ultimately rests on the strength of the parties’ positions.  This is a case that undoubtedly would be decided differently under a different Board.  At least for now, an employer does not violate its duty to bargain by sticking to its guns, so long as its actions remain reasonable.

Ninth Circuit Overturns Board Decision Finding Unlawful Secondary Picketing, Citing Insufficient Evidence of an Intent to Coerce a Neutral Employer

Last week, the United States Court of Appeals for the Ninth Circuit overturned a decision by the NLRB dismissing a complaint against two joint employers alleging unlawful termination in retaliation for picketing activity. The Court, reversing the Board, found that the employees’ picket was not unlawful secondary activity and therefore did not lose the protection of the Act. Service Employees International Union Local 87 v. NLRB, Case No. 19-70334 (Apr. 28, 2021).

Background

The case involved a ULP charge filed by the union on behalf of terminated employees against their primary employers, a building services company and a janitorial services subcontractor. A property management company hired the building services company to provide janitorial services to one of the buildings it managed. The building services company subcontracted the work to the janitorial services subcontractor who directly employed the employees to perform the janitorial work.

In response to issues concerning wages and other working conditions, the employees, with the assistance of the union, organized two pickets in front of the building for which the employees provided janitorial services. At the conclusion of the pickets, several employees were fired by the janitorial services subcontractor, and the building services company terminated its contract with the property management company and, consequently, with the subcontractor. The union filed a ULP charge against the primary employers, alleging unlawful termination in retaliation for protected activity under the Act. However, the NLRB credited the employers’ affirmative defense and found that the employees lost the protection of the Act by engaging in secondary activity in violation of Section 8(b)(4)(ii)(B) of the Act. The Board held that the employees’ picketing constituted secondary activity intended to pressure a neutral party, the property management company, to “cease doing business” with the primary employers.

Analysis

Under the Act, conduct that coerces, threatens, or restrains a neutral employer with the objective of pressuring the neutral employer to “cease doing business” with the primary employer, or the employer with whom employees have a labor dispute, constitutes unlawful, secondary activity. Conduct is found to have this requisite secondary objective when it seeks to force the neutral employer to terminate its business relationship with the primary employer or to pressure the primary employer into changing its labor policies. The Board found that the General Counsel and the union failed to establish that the picketing clearly disclosed that the dispute was with the primary employers, the building services company and the subcontractor, creating a rebuttable presumption that the picketing was unlawful secondary activity. The Board further held that the picketing had an impermissible secondary objective.

On appeal, the Court concluded that the Board’s finding of unlawful picketing activity was not supported by sufficient evidence but rather was based on the “thinnest of reeds”.  Contrary to the Board, the Court found that the picketing employees clearly indicated that their dispute was with their primary employer, stating that the single sentence in a leaflet isolated by the Board in its analysis did not obfuscate the plain language of the picketers’ signs and materials that called on the building services company by name.

The Court also disagreed with the Board’s finding that there was independent evidence that the employees’ picketing had a secondary purpose, namely to pressure the property management company to “cease doing business with” the primary employer. The Court held that the Board placed too much weight on statements made by employees to the property manager during the picketing, noting that none of the picketing employees’ signs or leaflets mentioned the property management company and there was no evidence in the record showing that the employees requested the property management company to intervene or threatened action against the neutral employer. As such, the Court held that the Board erred in concluding that the employees’ picketing violated Section 8(b)(4)(ii)(B) of the Act.

Takeaway

The Court’s holding suggests that the evidentiary standard for finding an impermissible secondary objective is fairly significant. While the Board’s interpretation of the Act, including the meaning of unlawful secondary activity under Section 8(b)(4)(ii)(B), is owed deference from reviewing courts, the Ninth Circuit’s decision in this case indicates that federal courts can and do intervene where the Board’s decision, in the court’s opinion, is not supported by sufficient evidence. Depending on whether other circuit court of appeals follow the Ninth Circuit’s precedent, this decision may increase the evidentiary burden that entities must carry to show that otherwise concerted activity is secondary in nature, thus losing its protection under the Act.

NLRB Declines to Address Validity of Acting GC’s Appointment, Instead Deferring the Issue to the Courts

On April 30, 2021, in National Association of Broadcast Employees & Technicians, 370 NLRB No. 114 (2021), the Board declined to opine on the validity of President Biden’s termination of former General Counsel Peter Robb and subsequent replacement with Acting General Counsel Peter Sung Ohr.  It now sets the stage for a federal court of appeals – and potentially, the U.S. Supreme Court – to weigh in on the issue of whether Ohr’s appointment and his subsequent actions as Acting General Counsel are valid.

As we discussed here and here, Robb, who was in the last year of his four-year term, was terminated shortly after President Biden’s inauguration on January 20, 2021, after Robb refused to resign.  Robb’s termination, and the subsequent appointment of Acting General Counsel Peter Sung Ohr, has been the basis of legal challenges in several cases before the Board.  The parties challenging the appointment have argued that under Section 3(d) of the Act and the Appointments Clause of the U.S. Constitution, Robb was only removable for cause; Acting GC Ohr asserts that Robb could be removed at will.

The Board’s decision noted that “[t]his was far from the first time that the Board has been asked to consider a challenge to the validity of the President’s actions with respect to one of the Board’s Presidential appointees or designees” and that prior Boards have addressed these challenges in a variety of ways—such as by declining to address their merits, finding a lack of jurisdiction, or rejecting them without detailed analysis.

This Board found that while its members held “different views” on the appropriateness of prior approaches, they were in agreement that the Board had no authority to remedy an invalid appointment without halting the operations of the agency, and doing so would violate its duty to administer the NLRA.  Thus, the Board determined that “[i]t is for the courts, not the Board, to make the initial and final determinations on the issues presented here.”

The Board’s decision is appealable to the federal circuit courts, and may ultimately be decided by the U.S. Supreme Court, which addressed a similar challenge to the appointment of a NLRB General Counsel in 2017, in NLRB v. SW General, Inc., finding that then-Acting General Counsel Lafe Solomon improperly served as NLRB General Counsel while awaiting Senate confirmation that never came amidst political gridlock.

The Board declining to address this issue is not surprising.  We must now wait to see what the federal courts say about this matter.  Should the courts conclude that Robb’s firing and Ohr’s appointment were invalid, it will generate significant uncertainty and years’ worth of litigation. We will certainly keep an eye on this and keep you all posted with any updates.

Biden Administration Announces White House Task Force on Worker Organizing and Empowerment

On Monday, April 26, 2021, the White House released a press briefing detailing the establishment of a new White House Task Force on Worker Organizing and Empowerment (the “Task Force”).  The Task Force, which the White House describes as a “whole-of-government” approach to empowering workers to organize and bargain with their employers, will be chaired by Vice President Harris and vice-chaired by newly appointed Secretary of Labor, Marty Walsh.  The Task Force will include at least twenty cabinet members and heads of federal agencies.

Within 180 days – by October 23, 2021 – the Task Force must specifically issue two recommendations to the White House.  First, the Task Force must identify which existing policies, programs, and practices can be used to promote worker organizing and collective bargaining in the federal government. Second, the Task Force must make recommendations for new policies or identify what regulatory/statutory changes are needed to achieve the Task Force’s four specific goals of: (i) leading by example by ensuring the federal government encourages worker organizing among its workforce; (ii) facilitating worker organizing nationwide, by mobilizing federal government policies to provide workers the opportunity to collectively bargain; (iii) increasing worker power in underserved communities by addressing challenges in jurisdictions with restrictive labor laws, in industries with heightened barriers to organization, and for women and people of color; and (iv) increasing union membership.

The establishment of the Task Force reinforces the Biden administration’s commitment to promoting workers’ rights, and Task Force activity will be important to monitor for a number of reasons.  First, it is unclear how the Task Force will support or interact with the passage of the Protecting the Rights to Organize Act (the “PRO Act”), which would amend the National Labor Relations Act, and which is currently before the Senate after passing the House of Representatives in March 2021.  Second, although the Task Force’s immediate mandate is to identify means in which the federal government can better promote organizing and collective bargaining within its own workforce, the Task Force’s policy recommendations and proposals could have broader implications for private employers as the Biden administration and House Democrats seek to limit states’ abilities to enact or enforce right-to-work laws.  Particularly because some predict that the PRO Act may not pass the Senate in its current form, it is possible that some of the statutory recommendations arising out of the Task Force may find their way into future legislation or regulations impacting employers nationwide.

We will continue to keep you updated on developments arising out of Task Force activity.

NLRB Upholds Contract-Bar Doctrine in Current Form

On April 21, 2021, the National Labor Relations Board (the “Board”) declined to eliminate or modify its long-standing contract-bar doctrine, which purports to provide stability in the relationship among the employer, a collective bargaining representative, and its employee-members.  The Board previously invited comment on the continued application of the contract-bar doctrine in July 2020.

The contract-bar doctrine prohibits all petitions that could oust an existing union, by employees who are covered by a valid collective-bargaining agreement for three years or the duration of the agreement – whichever is shorter.  The doctrine permits an election petition to be filed by representative employees only during a 30-day “window period,” which is typically between the last 60 and 90 days prior to the expiration of the collective bargaining agreement; after the contract expires; or after the third anniversary of any CBA that is longer than three years.  The final 60-day period of the agreement is considered an “insulated period,” where no election petition may be filed.

The Board undertook a review of the contract-bar doctrine in Mountaire Farms, Inc., 370 NLRB 110 (2021).  In that case, the petitioner rival union sought to decertify a union representing roughly 800 employees.   The incumbent union opposed the decertification petition because it was filed outside of the window period.  The Regional Director nevertheless processed the petition, finding that the contract-bar doctrine did not apply because the contract contained an unlawful union-security clause, thereby exempting it from the contract-bar doctrine’s application.  The union filed a Request for Review with the Board of the Regional Director’s decision.

Upon granting the Request for Review, the Board – in a common practice when the Board is considering overturning long-standing precedent – invited the parties and interested amici to file briefs on whether the Board should retain the contract-bar doctrine in its current form, modify the doctrine, or rescind it entirely.  After reviewing briefs of the parties and 17 amici, the Board reversed the Regional Director’s decision and decided not to modify the contract-bar doctrine “at this time.”  The Board credited the argument that the relevant date for the window period may not always be clear under the current contract-bar doctrine.  However, the Board found that “a sufficiently compelling case has not been made for any particular proposed modification.”

Member William Emanuel would have reduced the contract-bar period to 2 years and increased the window period to 60 days.  According to Member Emanuel, the current contract-bar doctrine prioritizes labor relations stability at the expense of employee free choice.

Board Chair Lauren McFerran agreed that no modifications should be made to the contract-bar doctrine, but found little support for the claim that the window period was unclear.  McFerran noted that she did not take any position as to whether a shorter or longer contract bar period might be appropriate, and stated that she did “not join her colleagues’ observations about the potential problems with current law.”  This could indicate that the Board likely will not consider changing the contract-bar doctrine when constituted with a majority of Democrats later this year.

New York State Bill Mandating COVID-19 Safety Standards in the Workplace Provides Carve-out for Unionized Employers

As discussed in greater detail here, Governor Andrew Cuomo is poised to sign into law S.1034B/A.2681B, also referred to as the New York Health and Essential Rights Act, or the “Hero Act.”

The Hero Act has two main components.  First, the state Department of Labor, in consultation with the state Department of Health, shall create an airborne infectious disease safety standard, as well as a model airborne infectious disease exposure prevention plan, and employers either must adopt the plan and standards, or create standards that meet or exceed the model.  Second, employers with at least 10 employees must allow their employees to create joint labor-management workplace safety committees.

As health and safety issues are routinely negotiated between unionized employers and the employees’ collective bargaining representative, the Hero Act contains a CBA waiver provision, permitting employers and unions to explicitly agree to waive the requirements of the bill, as long as the waiver “explicitly reference[s]” the statute.  Employers should therefore keep this in mind if they are actively or imminently negotiating a successor collective bargaining agreement, and even if not, such waivers could be negotiated mid-term.

Employers who negotiate such waivers with their respective unions should be cognizant of the fact that they may be obligated to adopt certain health and safety prevention plans for their non-union employees, notwithstanding the waiver as to some of its employees.  Employers should also be aware of any other operative federal, state or other local health and safety guidance that may create additional obligations.

In addition, the bill also expressly provides that nothing therein “shall be deemed to diminish the rights, privileges, or remedies of any employee under any collective bargaining agreement.”  In other words, if a CBA provides for rights greater than prescribed by the bill, then the CBA rights and obligations continue to govern the parties’ relationship.

We will keep you posted as the bill is expected to be signed into law in the near future.  Once the Hero Act becomes law, the New York State Departments of Labor and Health presumably will begin to issue model plans on an industry-specific basis.  We will also monitor whether the bill is challenged in any forum, including potentially on federal preemption grounds.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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