david m. buday keith e. eastland - millerjohnson.com · david m. buday keith e. eastland the...

© 2018 Miller Johnson. All rights reserved. 1

David M. Buday

Keith E. Eastland

The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer.

2


3

4

Lauren McFerran (D)12/16/14 - present

Kent Hirozawa (D)8/05/13 – 8/27/16

Mark Pearce (D)4/07/10 – 8/27/18

Phillip Miscimarra (R)8/07/13 – 12/16/17


5

Quickie Elections Fresh & Easy Markets (expansion of concerted

activity) Reasonable work rules and policies held unlawful

under Lutheran Heritage Micro-units Not your email; Purple Communications Joint Employer Rule Overall expansion into non-unionized employer

realm

6


7

The first step was reforming the make-up of the Board

Typically, the Board will have a 3-2 majority from the President’s political party

This required… reform


Kent Hirozawa (D)8/05/13 – 8/27/16

Mark Pearce (D)4/07/10 – 8/27/18

Phillip Miscimarra (R)8/07/13 – 12/16/17

8


William Emanuel (R)9/26/17 – present

John Ring (R)4/26/18 – present

Marvin Kaplan (R)8/10/17 - present


9

Education

B.S. from Cornell University & J.D. from Washington University in St. Louis

Prior Work History

Served as Chief Counsel to the Chairman of the Occupational Safety and Health Review Commission

Served as counsel for the House of Representatives’ Oversight Government Reform Committee

Management side private practice in Kansas City

10

Education

Received his B.A. from Marquette University and his J.D. from Georgetown University

Work History

Management side private practice with a number of large firms


11

Education

Received both his J.D. and B.A. from Catholic University of America

Work History

Prior to his appointment, he was a partner with the law firm Morgan Lewis

Management side private practice

During his time in private practice, he worked extensively in the labor field, negotiating and administering collective bargaining agreements

12

Education

Received his Juris Doctor, cum laude, from the University of Maryland School of Law, and a B.A. from Georgetown University

Work History

Was a director at Downs Rachlin Martin PLLC, a law firm based in New England and chaired the firm’s Labor and Employment practice from 2000 to 2009

Served on the American Bar Association’s Practice and Procedures Committee for the NLRB


Appointment is particularly meaningful due to the role that the General Counsel plays in setting the Board’s litigation positions

General Counsel Appointed by the President to a 4-year term

Independent from the Board

Responsible for investigation / prosecution of unfair labor practice cases and for supervision of the NLRB field offices in the processing of cases

What this means Driving force for potential changes in the law

The GC’s decisions and course of action will shape what issues the Board addresses over the next few years, and the stance the NLRB will take on those issues

13

Hint: This will be a significant departurefrom the previous General Counsel.

14

Mark Gaston Pearce’s second term recently expired on August 27, 2018

Departure was widely expected upon Trump’s election due to Pearce’s notoriously pro-labor approach and decisions

Surprisingly, President Trump nominated him for another term, and he is currently awaiting Senate confirmation

Return of Pearce?


15

The Lutheran Heritage Standard for evaluating employer handbook policies If a rule explicitly restricts protected activities, it’s

unlawful

Even if it doesn’t, it is still unlawful if:

The rule was promulgated in response to protected activity

The rule has been applied to restrict protected activity or

Employees would “reasonably construe” the language to prohibit protected activity

16


The Lutheran Heritage Standard for evaluating employer handbook policies The controversial cases involve this last prong, i.e.,

what kinds of employer handbook policies would an employee “reasonably construe” to prohibit protected activity, thus chilling Section 7 activity.

What kind of language did the Board determine that employees might so reasonably construe?

17

The Lutheran Heritage Standard for evaluating employer handbook policies

18


In Boeing Company (12/14/17), the NLRB gave voice to every frustrated employer’s issue with the agency’s position on rules and policies:

“Over the past decade, the Board has invalidated a large number of common-sense rules and requirements that most people would reasonably expect every employer to maintain. We do not believe that when Congress adopted the NLRA in 1935, it envisioned that an employer would violate federal law whenever employees were advised to ‘work harmoniously’ or conduct themselves in a ‘positive and professional manner’.”

19

The Board proceeded to overrule Lutheran Heritage’s “reasonably construe” standard

“Mere maintenance” of facially neutral employment policies, work rules, and handbook provisions will no longer turn on a single inquiry

Instead, the Board will take into account two things1. The nature and extent of the potential impact on

NLRA rights

2. The employer’s “legitimate justifications” associated with the rule

20


A memo from Peter Robb, General Counsel (6/6/18) explains further:

Category 1: Rules that are generally lawful to maintain Civility Rules: “Behavior that is rude, condescending or

otherwise socially unacceptable” is prohibited.

No-Photography / Recording Rules, Rules Against Insubordination or Non-cooperation, Disruptive Behavior Rules, Rules Protecting Confidential Information, Rules Against Defamation / Misrepresentation, Rules Against Use of Employer Intellectual Property, Rules Banning Disloyalty or Nepotism

21

Peter Robb, Memo (6/6/18) cont.

Category 2: Rules warranting individualized scrutiny Look to see if the rule interferes with rights guaranteed by

the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications

Category 3: Rules that are unlawful to maintain Confidentiality Rules specifically regarding wages, benefits,

or working conditions, and Rules against joining outside organizations or voting on matters concerning employer

22


23

Remember how we told you not to try and “NLRB-proof” your handbook? Good thing you listened!!!

If you didn’t listen, it’s time to revert back to your old handbook.

MJ’s 2015presentation

While the Boeing decision is an important return to common sense handbook rules, it does not excuse discriminatory application of facially neutral language Don’t think the Boeing decision will

excuse the trampling of otherwise protected concerted activity If you apply facially-neutral language only

to stifle protected concerted activity, that application still violates the Act

24


What is a Microunit?A microunit was simply a small grouping of

employees within a larger workplace. By using these small units, Unions could gain a foothold in a location where the majority of employees would not otherwise approve a union.

What happened? The Board overruled the 2011 case of Specialty

Healthcare & Rehabilitation Center of Mobile in a 3-2 decision

25

What is the new standard? The Board reinstated the traditional community-of-

interest standard for determining an appropriate bargaining unit in union representation cases (PCC Structurals, Inc.)

26


27

As mentioned above, the GC of the NLRB has an pivotal role in determining the stance of the NLRB on important labor issues.

Mr. Robb released a memo in March providing some insight into areas we could likely see changes in the near future Standard for Protected Concerted Activity

Purple Communications

Profanity / threats and when they lose protection

28


Obama Rule – Fresh & Easy Neighborhood Markets The Board found that an employee was engaged in

PCA for the purpose of mutual and protection when she individually solicited three coworkers to sign a piece of paper onto which she had copied amessage displayed on a whiteboard in the employee break room. The purpose was to have coworkers attest to the contents of a message in connection with the individual’s complaint about the message’s sexually offensive nature.

29

Essentially, this led to the conclusion that an individualized complaint could receive protection as concerted activity “The solicited employees have an interest in helping the

aggrieved individual—even if the individual alone has an immediate stake in the outcome—because ‘next time it could be one of them that is the victim.’ ‘An injury to one is an injury to all’ is one of the oldest maxims in the American labor lexicon.” (Fresh & Easy Neighborhood Markets)

Problematic to apply – blurred lines between individual issue and concerted activity

30


Potential solution: Return to pre-Obama Board Standard? Goodyear Tire and Rubber (1984): An employee who

complained about his subjective belief as to equipment safety did not engage in concerted activity

Meyers Industries (II) (1986): An employee’s complaints about safety concerns in the employer vehicle the employee personally used was not concerted activity

Adelphi Inst. (1988): An employee who asked another employee whether she had ever been suspended was not engaged in concerted activity

31

Section 7 of the National Labor Relations Act (NLRA) requires employers, except in very limited circumstances, to open their corporate e-mail systems to union organizing by employees and to group discussions among employees about the terms and conditions of employment during non-work time

Significantly, because Section 7 applies to all employers, not just unionized ones, the Board's decision affected almost every U.S. employer that provides a corporate e-mail system

32


GC Robb identified Purple Communications as an area of focus, with many suspecting it will be overturned

In August of 2017, the NLRB issued a notice, inviting the filing of briefs on whether the Board should uphold, modify or overrule Purple Communications. The GC’s office recently filed a brief arguing for the rule to be overturned for several reasons.

The decision (Purple Communications) impermissibly created a right for employees to use employer owned / financed communications systems, even where the employees have other options for communication

Purple Communications places an undue burden on employers’ business operations and has the practical effect of reducing productivity and disrupting business operations

The GC’s office also argued that the decision requires employers to provide and pay for employee communications in violation of their First Amendment Rights

33

Practical impact of change Return to the old Register Guard Standard, thereby

restoring control of corporate email by allowing an employer to restrict the purpose for which it is used

Note: The GC’s brief did mention that exceptions should be made on a case-by-case basis where the Board determines that the employees are unable to communicate in any way other than through the employer’s email system, but this would likely be a rare situation

34


Under Pier 60, all kinds of vulgar and outlandish social media posts gained protection. Examples of protected posts Bob is such a NASTY MOTHER F**KER don't know how to

talk to people!!!!!! F**k his mother and his entire f**king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!! (Pier Sixty LLC, 362 N.L.R.B. No. 59 (March 31, 2015))

“As I look at my pay stub…One worse than the other. I would just like to thank all the F*#KTARDS out there that voted ‘NO’…The chance they gave them was to screw us more and not get back the things we lost…Eat $hit ‘NO’ Voters…” (Novelis Corporation, 364 NLRB No. 101 (2016))

35

Dissent from Pier 60: “In concluding Perez’ offensive online rant, which was fraught

with insulting and obscene vulgarities directed toward his manager and his manager’s mother and family, my colleagues recast an outrageous, individualized griping episode as protected activity. I cannot join in concluding that such blatantly uncivil and opprobrious behavior is within the Act’s protection.

Future Change? We expect any change to be more in line with the dissent,

where an employee can’t post outlandish things on social media, and hide behind the guise of NLRA protection

36


This is not an identified GC priority, but seems like it is ripe for change Old Rule: The NLRB would not schedule an election fewer than 25

days after the direction of election to allow the NLRB to rule on a request for review of the decision. At minimum, this gave employers at least 25 days (and often 42 days) to educate employees of the drawbacks of unionization.

New Rule (Quickie Elections): Changes in the process of filing a representation

petition, allowed for elections to be held within 13 days of the filing of said petitions

37

Impact of Quickie Elections: In the three years preceding the Rules

Unions won 68% of elections in 2014



In the years following the Rules




38


Impact of Quickie Elections In the three years preceding the Quickie Election

Rules, the NLRB conducted

1202 elections in 2012



Despite the new more favorable rules, the NLRB only slightly increased the number it conducted



1193 elections in 2017; fewer than they conducted prior to implementation of the Quickie Election Rules

39

Overall, it appears that the Quickie Election Rule is helping unions to win more often, which was expected when the rule took effect

Given this impact, we expect that the pro-employer administration may took a look at repealing this rule in the coming years

40


41

December 2012: Michigan became the 24th state to adopt “right-to-work” legislation Right-to-work laws prohibit or nullify “union

security” provisions in contracts

Prevents payment of union dues from being a condition of employment in private or public sector

42

2017 Update:“It’s Over”


Nearly five years of data allows us to begin to assess the impact in Michigan

Total Rate of Union Membership:Down 2.15% between 2013 and 2016

Average and Median “Real” Wage Change:Up 2.65% and 2.77% between 2013 and 2016

Unemployment Rate:Down 4.75% between 2013 and 2016

43

Source: Current Population Survey data from BLS

Regardless of effect on economy, result is that at least some percent of any unionized workforce has stopped paying dues

This has created a substantial revenue crunch for unions

44Source: SEIU Healthcare MI LM-2 Filings

$0

$5,000,000

$10,000,000

$15,000,000

$20,000,000

$25,000,000

0

10000

20000

30000

40000

50000

60000

2011 2012 2013 2014 2015 2016

SIEU Membership and Revenue

Membership Receipts


45

MNA scores big victory for Munson Nurses Last September, the MNA won a significant labor

victory to represent more than 1,000 RNs at Traverse City’s Munson Medical Center. The final vote was 489-439 in favor of unionizing.

Signs of support:According to the MNA, over 2,500 supportive yard

and business signs have been distributed, and they are visible throughout Traverse City.

Radio advertisement: https://www.munsonnurses.org/?utm_source=all+media+contacts&utm_campaign=d42e

7c2c26-EMAIL_CAMPAIGN_2018_08_22_02_58&utm_medium=email&utm_term=0_242 dd8770e-d42e7c2c26-95406609

46


47

48


Union files unfair labor practice charges against U of M Failure to bargain in good faith

Making changes in work shifts without negotiating

Refusing to bargain over certain conditions of employment

Discriminating against union members who are supporting their right to collective bargaining.

Three day strike authorized by U of M nurses on September 17

University of Michigan Professional Nurses Council represents 5,700 nurses at U-M hospitals and other facilities. In a recent vote on whether or not to authorize a strike, 4,000 nurses cast their ballot, with 94% voting in favor of a strike.

No date was set for the strike, but the Union said the strike would go forward if the university did not respond to claims of unfair labor practices

49

50


51

Tentative Agreement Reached Early on September 29, 2018, the Michigan Nurses

Association and the University of Michigan announced they had reached a tentative agreement on a three-year contract to end the ongoing labor dispute. The proposed contract language has not been made available to

the public to date.

A ratification vote remains to be scheduled, but should took place within a few weeks. Notably, the bargaining team for the MNA is recommending

ratification of the agreement at this time.

52


The IssuesMulti-employer bargaining and the Section 8(f) /

9(a) issue

Union leverage; the potential triggering of pension withdrawal issues

Employer responses: injunction action; unfair labor practice charges; and lockout

53

54


Governor Snyder’s Intervention Ends DisputeMITA and the Operating Engineers have agreed to

work without a contract through the current construction season

The agreement also includes the following:

The priority work will be for projects that can be completed prior to significant winter weather arriving

Other projects will continue for as long as possible, including work to prepare them for safe winter travel if they cannot be completed

Contractors and OE324 will use professional mediation through the winter to help them with negotiations for a new contract

55

56


The Decision, June 27, 2018 In Janus, the Supreme Court held that a public employer violates

the First Amendment when it withholds agency fees (sometimes referred to as “union dues”) from an employee for the purposes of disbursing such fees to the employee’s union if the employee does not affirmatively consent to pay such fees. The Janusdecision is revolutionary because it directly contradicts and overrules a 1977 Supreme Court decision called Abood v. Detroit Board of Education, which reached the opposite conclusion to the same question when issued 41 years ago.

Employers in the private sector will see no direct impact from the Janus decision. But because many unions are likely to see reductions in revenue as a result of this decision, Janus may decrease the overall strength of organized labor nationwide

57

Impact of JanusMakes employer liable under Section 1983 if dues

are extracted contrary to consent of the employee

Essentially establishes “national” right-to-work for all public sector employers

Involves public sector employees only, BUT weakens unions (less money) with substantial public sector representation (SEIU, burse’s unions, UAW, AFSCME)

Redefines the role of the First Amendment for corporations and businesses – “weaponized first amendment”

58


Click icon andpick photo in

S:\Marketing Materials\2017 Attorney Photos for PowerPoint

Click icon andpick photo in

S:\Marketing Materials\2017 Attorney Photos for PowerPoint

45 Ottawa Ave SWSuite 1100Grand Rapids, MI 49503

100 W Michigan AveSuite 200Kalamazoo, MI 49007

millerjohnson.com

59

616.831.1749

[email protected]

269.226.2952

[email protected]

Keith E. Eastland David M. Buday

david m. buday keith e. eastland - millerjohnson.com · david m. buday keith e. eastland the...

Documents