labor law update - nhrma conference · pcc structurals, inc. (2017) • nlrb overrules specialty...
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© 2018. Archbright. All rights reserved
Labor Law UpdateNHRMA 2018
Kellis M Borek
VP Labor & Employment Services
© 2018. Archbright. All rights reserved
Agenda
U.S. SUPREME COURT & LABOR1
NLRB DECISIONS & ADVICE MEMOS2
WHAT’S NEXT?3
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US Supreme Court & Labor
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Janus v. American Fed or State, County and Municipal Employees Council 31
Decided June 27, 2018
• “Agency fees” that public employers mandate their employees to pay to the unions that represent them are unconstitutional under the 1st Amendment
• “Compelled speech” vs “Free riders”?
• 5-4 decision in favor of employees
• Every state is a “right to work” state for public employers
• See: Archbright Keynote about public employer steps going forward
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Impact of Janus
• Declined union membership
• Union political impact
• Shift to private sector organizing
• Right to work states increase
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Pre-Janus
• New York Senate Bill 7509 (April 2018) provides a “free rider”:
– Only negotiation or enforcement of a CBA with public employer
– No representation during questioning, administrative proceeding or grievance
– Mandates that:
• employer notify union within 30 days of employee being hired
• provide employee name and address to union
• permit union to meet with employee within 30 days
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Post-Janus Litigation
• National Right to Work Foundation is suing SEIUS Local 522 on behalf of William Hough, a Santa Clara Valley Transportation Authority worker
• Mr. Hough not want to participate in the labor organization but still had so-called “fair share” fees deducted from his paycheck and handed to the union.
• Class action status alleging conversion, unjust enrichment, unlawful seizure of property and First Amendment violations
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Post Janus Legislation
• New York Executive Order No. 183 signed June 27, 2018
• “In New York, we say no way, no how to union busting”
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Epic Systems Corp. v. LewisNLRB v. Murphy Oil
Decided 5-31-2018
• Mandatory arbitration agreements that require employees to waive their right to class actions are lawful under the NLRA
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Post-Epic Systems
Cowabunga, Inc. v. NLRB
Everglades College, Inc. v. NLRB
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Will Justice Kavanaugh Treats Employers Well?
• Employers may lawfully:
– Ban workers from wearing union T-shirts that said “inmate” and “prisoner of the company”
– Ban pro-union signs in employee cars as a form of picketing
– Prohibit hospitality workers from union demonstration by temporary walk-off
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Unionization Statistics
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Unionization 2017
18.10%
18.80%
21.30%
23.80%
11%
4. ALASKA
3. WASHINGTON
2. HAWAII
1. NEW YORK
NATIONWIDE
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Unions Gain Election Wins
• Unions won 1,013/1,425 elections in 2017
• Despite wins, number of organized workers declined in 2017
• Unions continue to have more success with smaller units
• Different unions targeting operations for organizing
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NLRB
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NLRB
Mark Gaston Pierce – August 2018 D
Lauren McFerran – December 2019 D
Marvin Kaplan – August 2020 R
William Emanuel – September 2022 R
John F Ring, CHAIR – December 2022 R
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Cuts in Funding • Region 19 Anchorage office closed
• House Committee on Appropriations proposed NLRB funding be cut by $12.8 million
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Budget Cuts
• August 2018: NLRB offers voluntary early retirement and voluntary separation to NLRB employees
• Flat funding of NLRB has been primarily addressed by voluntary personnel attrition
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Election Rules
• January 2017: NLRB sought stakeholder comments on change to 2014 “Quickie Election” Rules
• 7,000 responses to review posted on NLRB’s website
• Republican comments: election to be held at least 35 days after petition
• Democratic comments: NLRB has no substantive reason to revisit rules
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NLRB Case Processing
• March 2018: NLRB solicits input from staff and HQ to changes to existing case processing procedures
– Suggesting charging parties to file a detailed position statement or affidavit with the unfair labor practice charge
– Potential dismissal of the charge if the charging party fails to respond to any request from the Region within two business days
– When contacting the charged party, the Board agent should go over the allegations, seek resolution including a bilateral resolution, and allowing non-Board resolutions to be memorialized by email
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Persuader Rule Rescinded
• July 19, 2018: DOL rescinds Persuader Rule
• “By rescinding this Rule, the Department stands up for the rights of Americans to ask a question of their attorney without mandated disclosure to the government”
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Employer Email
• August 1, 2018: Should the NLBR overturn Purple Communication?
• Register Guard allowed employers to have neutral policies prohibiting employees from using work email for nonwork purposes
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NLRB Decisions and Advice Memos
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Micro UnitsPCC Structurals, Inc. (2017)
• NLRB overrules Specialty Healthcare & Rehabilitation Center (2011)
• Reinstated community of interest test
• Rejected “overwhelming” community of interest standard
• Undermined the fulfillment of the Board’s statutory duty under Section 7
• Board to evaluate the interests of all employees both in and outside of the petitioned unit
– without regard to whether these groups share an “overwhelming” community of interest
• General Counsel Memorandum OM 18-05, Representation Case Procedures in Light of PCC Structurals, Inc
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Impact of PCC Structurals, Inc.
• Unions: difficult to obtain elections in smaller employee units
• Employers: easier to show that larger groupings of employees are the “smallest appropriate unit”
• Easier for employers to structure their workplaces avoid “sufficiently distinct” communities of interest for smaller units
• Representation case litigation strategy
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Union Contract ExpirationRaytheon Network Centric Systems
• NLRB overruled E.I. Du Pont de Nemours (2016)
• CBA provided Raytheon reserves the right to amend the healthcare benefit plan for employees
• During negotiations Raytheon informed union that it was going to proceed with changes to the plan and implementation at open enrollment
• No “change” to mandatory subject of bargaining because employer’s right to amend plan was past practice
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Joint Employer StatusBrowning Ferris Industries of Ca./Hy-Brand
Industrial Contractors
• NLRB reversed itself in Hy-Brand (12/16/17):
– reverting to joint employment test of actual exercise of joint control over essential employment terms
• February 2018: NLRB reinstated the Browning Ferris standard
• May 2018: NLRB announced it will engage in rulemaking with public notice and comment
• Unpredictable effect of joint employment test, Browning Ferris is still the legal authority
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Workplace Civility RulesThe Boeing Co. (Dec 2017)
• Overrules Lutheran Heritage Village-Livonia
• New standard for evaluating the validity of employer rules, policies and handbook provisions under the NLRA
• “Congress did not intend the NLRA in 1935 to invalidate rules that require employees to work harmoniously or conduct themselves in a professional or positive manner”
• Boeing’s rule forbidding PDA’s, cell phones, laptops, etc. in the workplace without a “permit” found to be unlawful under “reasonably construe” test
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Rules of Conduct: New Test
“Meaningful balance of employee rights and employer interests”
The nature and extent of the potential impact on NLRA rights
Legitimate justifications associated with the rule
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Rule CategoriesCategory 1
• Generally lawful – no impact to Section 7 rights when reasonably interpreted
– Civility
– No photography or recording
– Insubordination
– Disruptive behavior
– Confidentiality, proprietary or customer info
– Defamation
– Employer logos or intellectual property
– Authorization to speak to media for company
– Disloyalty, nepotism or self enrichment
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Rule CategoriesCategory 2
• Not obviously lawful or unlawful, requires a case by case analysis:
– Broad conflict of interest rules that don’t cover fraud
– Confidentiality rules on “employer business” or “employee information”
– Disparagement of employer
– Use of employer name
– Restricting speaking to media
– Off duty conduct rules prohibiting outside organizations
– False or inaccurate statements
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Rule CategoriesCategory 3
• Generally unlawful – board will issue complaints
– Confidentiality rules specifically regarding wages, benefits or working conditions
– Joining outside organizations or voting on matters concerning the employer
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GC Guidance Memo Handbook RulesJune 7, 2018
• Boeing decision only applies to “mere maintenance” to neutral rule
• Still not addressed:
– “special circumstances” and apparel rules
– Confidentiality of discipline or arbitration
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Lyft, Inc. July 2018
• Work rules on intellectual property and confidentiality upheld
• Intellectual Property rule prohibits employee use of company logos without express written permission (Category 1)
• Confidentiality Rule prohibits employees from using proprietary and confidential information relating to Lyft’s business, operations and properties, including “user information” (Category 2)
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Concerted Activity
• Burger King: violated NLRA by telling workers they couldn’t discuss striking in support of a $15 minimum wage in its parking lot
• Comprehensive Healthcare Mang. Serv, LLC: lawfully terminated a CNA who failed to report another CNA’s failure to change wet clothing of a resident, but posted it on Facebook
• Papa John’s Pizza: unlawfully terminated employee for failure to give sufficient notice for her absence to participate in “Fight for $15” convention
• Google: termination of James Danmore was lawful for internal memo he wrote questioning biology in career choice
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Concerted Activity
• International Warehouse: employees’ participation in “Day Without Immigrants” strike was protected activity under Section 7
• Market 450: Restaurant employee unlawfully fired for “sticking her nose in other people’s business” engaged in protected activity when she stood up for coworker whose $10 tip was being taken away
• Williams Sonoma: Employees stated at safety meeting, “we might as well just hit fellow employees if a near miss would be treated the same as a collision, dead men cannot talk”. Discharge unlawful as conduct was concerted and “workers were speaking in metaphor.”
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Space Needle, LLC(June 2018)
• CBA expired in 2012, employer ceased dues deduction
• WKYC TV (Bethlehem Steel) 2012 required employers to keep dues deduction status quo until new contract, prospective ruling only
• Space Needle did not need to reinstate dues deduction but reached an agreement to do so post WKYC TV.
• Space Needle refused to reinstate dues under “mutual mistake” and/or failure of “Meeting of the minds”
• US Court of Appeals ruled Space Needle must honor agreement
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Tesla
• May 2018: CEO Tweets “nothing stopping Tesla team from voting union, but they will have to pay union dues and give up stock options”
• First in Tesla responses to active organization by UAW
• Charges filed and pending
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Tesla
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Alaska Airlines, Inc. v Schurke(9th Cir. August 1, 2018)
• Railway Labor Act did not preempt an employee’s claim premised on Washington State Sick Leave law right to reschedule vacation leave for her family medical reasons
• Right to vacation leave in CBA vs. state law rights under Washington Family Care Act (WFCA)
• WFCA: employees must comply with policy or CBA applicable to leave available except as to choice of leave
• 9th Cir first ruled WFCA was pre-empted by labor law and CBA, en-banc rehearing reversed in favor of employee
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Proposed Legislation
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Pending Legislation
• June 2018 – Freedom to Negotiate Act – creating a private civil action under NLRA and about a dozen other protections
• July 2018 – Employee Rights Act of 2018
– abolish card check election
– guarantee secret ballot elections
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Bargaining Issues
• Mandatory subjects: signing bonuses and non-compete clause
• Washington Paid Sick Leave and City of Seattle PSST Elimination of Waivers in CBA
• Washington Paid Leave Law effective 2019: does not apply to employers covered by a Collective Bargaining Agreement in effect prior to October 19, 2017
• Pension Withdrawal Openers
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Thank You!
Contact Information:
• Kellis M. Borek – [email protected]
• Archbright – 206.664.7278
• Website – http://www.archbright.com