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Labor & Collective Bargaining

Former Recess Appointee Block to be Renominated to NLRB

According to multiple reports, President Barack Obama has announced  his intention to renominate Sharon Block to the National Labor Relations Board.

Block was one of the Board Members whose recess appointment on January 4, 2012 was invalidated in the U.S. Supreme Court’s ruling in NLRB v. Noel Canning as unconstitutional.  Block, a former labor and employment counsel for the Senate Health, Education, Labor and Pensions Committee where she worked for the late Senator Edward M. Kennedy, served on the NLRB for 18 months.  Block’s subsequent April, 2013 nomination to the NLRB was withdrawn in July, 2013 as part of an agreement between the White House and Senate Republicans, who objected to her nomination.  Her new nomination could cause renewed objections.

Supreme Court Rules Home Health Care Workers in Illinois Not Required to Pay Nonmember Union Fees

In a significant blow to efforts to unionize health care workers who are privately employed by the aged, ill and/or frail in their homes, the U.S. Supreme Court has struck down an Illinois statute requiring these home-based personal care providers to financially support a union that has a collective bargaining agreement with the State on their behalf even where the care providers do not wish to join or support the union. The Court found the state statute’s requirement violated the personal care providers’ rights under the First Amendment. Harris v. Quinn, No. 12-861 (June 30, 2014). (For additional details about the case, see our previous blog post, “Supreme Court’s Decision on Compulsory Union Fees May Have Extensive Effect.”)

Assuming a similar statutory framework, the Supreme Court’s decision likely will have a significant financial impact on unions in Illinois and several other states, including California, Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Oregon, Vermont and Washington, that require home health care workers (who are employed by the individual and not the State) to financially support the labor union that represents them. However, the Court spared public sector unions a much greater setback by leaving intact its 1977 decision in Abood v. Detroit Board of Education. The Court did so by crafting a distinction between “full-fledged” public employees (those public employees who are actual employees of the State and over whom the State has most of the control) which existed in Abood and the “quasi-public employees” (those who are employees of the individual and not the State) in question in Harris. 

According to the Court, Abood is applicable only to full-fledged public employees, and therefore, unions may continue to require full-fledged public employee nonmembers to pay an agency fee.  Justice Samuel Alito, writing on behalf of the 5-4 majority, found that personal care providers “are quite different from full-fledged public employees….” “Abood itself has clear boundaries; it applies to public employees. Extending those boundaries to encompass partial-public employees, quasi-public employees, or simply private employees would invite problems,” Justice Alito wrote. Justice Elena Kagan authored an extensive dissent, joined by Justices Ginsburg, Breyer and Sotomayor.

We are analyzing the decision and will provide further details and commentary.

U.S. Supreme Court Upholds D.C. Circuit Decision in Noel Canning Invalidating NLRB Recess Appointments

In a lengthy opinion authored by Justice Stephen Breyer, and drawing heavily on historical practice of Presidents and the Senate, the United States Supreme Court has upheld the decision of the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB, concluding that President Obama’s three recess appointments to the National Labor Relations Board in January 2012 (Sharon Block, Richard Griffin, and Terence Flynn) were invalid. The Court upheld the right of the President to make recess appointments both inter- and intra-session, but held that it is the Senate that decides when it is in session by retaining the power to conduct business pursuant to its own rules. The Court also found that a recess of three days or less is too short to allow for a valid recess appointment and that a recess of from four to less than ten days “is presumptively too short” to permit the President to make a recess appointment, except in “unusual circumstances,” such as a “national catastrophe”. (The recess here was three days.) The Court also decided that the recess appointment power applies to appointments that first come into existence during a recess and to those that initially occur before a recess but continue to exist during a recess.

As a result of the decision, hundreds of Board decisions likely are now invalid.   In addition, the actions of NLRB Regional Directors who were appointed during the time a valid Board quorum did not exist also are subject to challenge.

We will review the Supreme Court’s decision and provide additional commentary shortly.

Supreme Court’s Decision on Compulsory Union Fees May Have Extensive Effect

The United States Supreme Court is expected to rule shortly on a case that could deal a crushing blow to unions representing public employees. The case, Harris v. Quinn, No. 12-861, concerns the lawfulness of Illinois’ statute requiring that home-based health care aides join or support financially a union designated by the state to bargain on their behalf, but its outcome could have a devastating effect on public worker unions beyond the state and home care service industry.

Harris began in July 2003, when the Illinois legislature passed a bill recognizing certain home care providers as “public employees” and designated a Midwest branch of the Service Employee International Union (SEIU) as the exclusive representative of those workers. Under the law, home care workers could join the SEIU; however, even workers who chose not to join still could be required to support the SEIU by a compulsory deduction from their paychecks, called a “fair share” fee, as a condition of being allowed to work as home care providers in Illinois.

In April 2010, a group of Illinois home care workers filed a class action lawsuit against the State of Illinois and the union arguing that requiring workers to pay union “fair share” fees as a requirement of employment violated their First Amendment rights because the state law compelled them to “accept and financially support a private organization as their exclusive representative to petition the State for greater reimbursements from its Medicaid program.” After the federal district court and the Seventh Circuit Court of Appeals in Chicago dismissed the case, the National Right to Work Legal Foundation (NRWLF) appealed to the Supreme Court. The NRWLF asked the Court to find that its 1977 decision in Abood v. Detroit Board of Education that public sector unions can require the payment of agency fees in lieu of membership dues, so long as the charges were used to finance expenditure by the unions for collective bargaining, contract administration and grievance handling. (The NRWLF implicitly also asked that the Supreme Court to reverse the Abood in its entirety.)

The Supreme Court’s ruling could weigh heavily on the continued viability of labor unions in the public sector, which depend on compulsory financial support for their bargaining strength and political influence. Indeed, the potential losses for SEIU, which represents both public and private sector employees, may be significant. If the Court overturns Abood, public sector unions could face a nationwide right-to-work challenge, and with it, the prospect of weakened influence. (A right-to-work law guarantees that no person can be compelled, as a condition of employment, to join or not to join or to pay dues or similar exactions to a labor union as a condition of employment.)

We will update you when the Supreme Court issues its decision.

OSHA and NLRB Update Referral Agreement

OSHA and the NLRB have announced implementation of a joint referral agreement to redirect to the Labor Board OSHA complainants whose claims of discrimination under the OSH Act are time barred, but may form the basis of timely unfair labor practice charges under the NLRA.  The accord was disclosed by NLRB Associate General Counsel Purcell in a May 21, 2014, memorandum to all Board field staff.

Section 11 (c) of the Occupational Safety and Health Act requires that discrimination complaints be filed with OSHA within thirty (30) days of the wrongful conduct.  By OSHA’s estimate, between 300 and 600 complaints are screened out or dismissed each year because the complaining employee fails to file a complaint with the safety agency within 30 days.  Beginning in March 2014, the OSHA Office of Whistleblower Protection Programs has instructed OSHA staff to advise complainants who miss the OSHA filing deadline of their right to file a charge relating to the same conduct with the NLRB within the six-month statute of limitations of the National Labor Relations Act.  The agencies reason that in a number of cases, the complained-of conduct may be “concerted” in nature and thus implicate the NLRA’s protections as well as OSHA’s.

OSHA’s policy is to advise complainants with untimely charges of the right to file charges with the NLRB, that the statute of limitations for doing so is six months, and that OSHA “recommends that the complainant contact the NLRB as soon as possible to discuss his or her rights.”  OSHA personnel are also to provide the complainant contact information for the nearest NLRB Field Office, the NLRB website, and the NLRB’s toll-free number.

NLRB AGC Purcell directed Board field staff to be alert for such referrals, and to record the number of OSHA-referred charging parties.   The agreement between OSHA and NLRB builds on the cooperation between the two agencies pursuant to a Memorandum of Understanding signed in 1975 for handling workers’ safety retaliation complaints which might be filed with either or both agencies.  In that MOU, it was agreed that enforcement actions should be taken primarily under the OSH Act, rather than the National Labor Relations Act.  The new agreement reflects in part the NLRB’s continuing emphasis on the expansion protected concerted activity claims, even in the absence of union-related activities.

Appearing in an NLRB Notice Near You, QR Code to Board Decision

Fashioning itself another tool in its quest to educate the public about the National Labor Relations Act and the National Labor Relations Board, the NLRB has adopted a union’s request that a violation of the Act requires employers to inform employees that the Board’s decision and order is available on the agency’s website.  Durham Schools Services, L.P., 360 NLRB No. 85 (2014).

When an employer or union is found by the NLRB to have violated the Act, generally, as part of the remedy, the Board requires the violator to post a standard “Notice” informing employees of the violation and the action the violator must take, and advising them of their rights under federal labor law. In the past, the “Notice” also has referred to the Board’s decision, but has not given instructions on how to find or obtain a copy of the decision. In Durham, the Board agreed that informing employees the decision and order is available on the Board’s website is a good idea.  (Durham appears to apply only in cases where the NLRB has issued a decision finding a violation of the Act.)

Here are some markers in the NLRB’s campaign to better inform the public about the NLRA and employee, employer and union rights and responsibilities under that law:

  • On August 25, 2011, the NLRB issued a rule requiring employers to post an 11 x 17 inch poster in workplaces describing employee, union and employer rights under the NLRA. The rule was invalidated by two U.S. Courts of Appeals decisions before being withdrawn by the NLRB on January 6, 2014.  The NLRB said it “remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act.  Therefore, the NLRB will continue its national outreach program to educate the American public about this statute.”
  • On June 18, 2012, the Board launched a web page with cases devoted to protected concerted activity.  NLRB Chairman Mark Gaston Pearce noted at the time, “We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act….  Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.”
  • On August 30, 2013, the NLRB launched a mobile app for iPhone and Android users.  Pearce noted then that “with this app, we are using 21st Century technology to inform and educate the public about the law and their rights.”
  • The NLRB regularly tweets about its decisions, settlements and other actions.

Notices in cases where the NLRB has issued a decision finding a violation of the NLRA now will contain the following wording and links:

“The Board’s decision can be found at [hyperlink to the Board’s decision] or by using the QR code below.  Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.”

(A QR code, when scanned by a cell phone, takes the user to the case on the Board’s website.)

While it is hard to tell whether the NLRB’s outreach program is working, it probably is not having the impact Chairman Pearce hopes.  The number of unfair labor practice charges filed decreased in FY 2012 and again in FY 2013.  What happens in FY 2014 might depend on what other measures the NLRB implements.  Will the NLRB require a link to the NLRB General Counsel’s “Complaint” be added to Notices posted pursuant to a settlement agreement (where a Board decision was not issued)?  We will see.


NLRB Finds Hospital Must Bargain with Union on Changes to Dress Code Policy

A hospital’s newly implemented dress code policy was a material, substantial, and significant change to union employees’ terms and conditions of employment that required bargaining with the union, the NLRB has ruled.  Salem Hospital Corp., 360 NLRB No. 95 (Apr. 30, 2014).  For more on this development, click here.

NLRB Considers Allowing Employees to Use Employers’ Electronic Communications Systems for Protected Activity

Employers often forbid employees from using company e-mail and other electronic communications systems for all non-business purposes.  Under current National Labor Relations Board decisions, such a blanket prohibition, which includes a prohibition on using these systems for Section 7 (i.e., union and other protected concerted activity) purposes is lawful as “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.” Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).    However, the NLRB’s General Counsel and the Communications Workers of America, AFL-CIO (“CWA”) argue such limitations should be held unlawful. They are asking the NLRB to overturn Register Guard and grant employees the right to use company e-mail to engage in union and other protected  concerted activities, such as trying to drum up support for a union or encourage employees to protest certain working conditions.

Purple Communications, Inc., JD-75-13 (Bogas, ALJ, Oct. 24, 2013), is the case providing them with the vehicle for this move. There, the CWA alleged the employer’s rule prohibiting employees from using its equipment for non-business purposes unlawfully interfered with employees’ rights. Without referring expressly to Register Guard, the Administrative Law Judge summarily dismissed the allegation, stating such a rule “is not, under current Board law, considered an improper infringement on Section 7 rights.”

The GC and CWA have excepted to the Judge’s ruling and have asked the Board to overrule Register Guard.  The GC has further requested the Board to adopt a new standard under which “employees who are permitted to use their employer’s e-mail for work purposes [would] have the right to use it for Section 7 activity, subject only to the need to maintain production and discipline.”

The General Counsel broadly asserts that a rule that “prohibit[s] employees from using Respondent’s equipment to engage in Section 7 activities such as organizing support for, or opposition to, a labor organization; or discussing, or attempting to discuss, workplace concerns with fellow workers” violates the NLRA.  In support of his position, the GC argues that technology has made “email . . . analogous to the water cooler” of years ago, around which employees would gather to talk about their personal and work issues:

Employees have a Section 7 right to communicate at work, and, in technological workplaces, email is the present day water cooler. In the last 10-plus years, the emergence and widespread use of email has transformed the manner in which many employees interact in the workplace. In many workplaces, technology has replaced face-to-face communication in a break room, cafeteria, or other traditional gathering places as the preferred method of communication. As employees increasingly use email as a primary mode of communication, email has, thus, become the “natural gathering place” for non-work-related communication.

The NLRB is considering the GC’s exceptions and proposed rule, and, in a move that many say signals the Board likely will be making a major policy shift, has invited briefs from the parties and interested amici on five questions: whether the Board should reconsider and overrule Register Guard,  what standard(s) of employee access to employer systems should be established and what restrictions on access should be put in place; whether the impact on an employer’s communications systems by employees’ use of the systems should be considered;  whether the existence of employees’ personal electronic devices and personal email and social media accounts should be considered by the Board; and  whether any other relevant technological issues exist which should be taken into account by the Board.

The Board’s ruling in this case could affect dramatically all employers utilizing electronic communications systems (and a great many do, regardless of whether their employees are unionized or not.) If the Union’s and the GC’s position in Purple Communications  is adopted, it is likely many employers will have to revise handbook rules and other policies that prohibit employees from using electronic communications systems for non-business purposes to allow for access.  Furthermore, employers probably would not be able to stop employees from using employer electronic communications systems to engage in Section 7 activities while on non-work time, unless such use interfered with the “need to maintain production and discipline”, which the employer would have the burden – likely a heavy one — of proving.

Northwestern University Election Takes Place Tomorrow: No Matter the Outcome, Effects of RD’s Decision on Players’ Status as Employees Likely to be Far-Reaching

The long-awaited Labor Board election in which scholarship football players at Northwestern University will decide on union representation is scheduled for tomorrow.  If some published reports are accurate, a majority of those players who vote will vote “no” – against union representation.  However, because of the pendency of Northwestern’s appeal of the Regional Director’s March 26, 2014 decision that the players are employees under the National Labor Relations Act, the actual “count” likely will not be known tomorrow.  Instead, the ballots will be impounded until the NLRB decides the appeal.  That could take several months or more.

An election victory by Northwestern will not extinguish the spotlight that CAPA’s petition shone on the applicability of the NLRA to college athletes.  Since it is likely the NLRB will issue a decision upholding the Regional Director’s determination that the players are employees, even if Northwestern ultimately prevails in the election, it and other private institutions will be required forevermore to interact with their scholarship athletes as they would any other employee under the NLRA.  This will mean that the players’ exercise of any of the protections afforded traditional employees contained in the NLRA – for example, to discuss and engage in union activity or to combine to improve “working conditions” – must not result in any disadvantage to the players.  Similarly, any documentation applicable to the players must not leave any impression (expressly or impliedly) that engaging in any of these activities could disadvantage the athlete.

The election is scheduled to take place from 6:00 to 7:30 a.m. and 10:00 a.m. to noon on the Northwestern University campus.  We will keep you updated.

Employer Must Bargain with Union over Requirement to Sign Interview Notes

The NLRB has found an employer’s unilateral implementation of a requirement that employees represented by a union sign the notes taken by a management representative during an investigative  interview attesting to their  veracity violates the National Labor Relations Act.  Murtis Taylor Human Services Systems, 360 NLRB No. 66 (2014).  The new signature requirement was a “material, substantial, and significant change in terms and conditions of employment” about which the union did not waive its right to bargain in the parties’ collective bargaining agreement’s management rights clause.

The employer’s human resources director conducted an investigative interview of an employee’s conduct.  Two management representatives took notes during the interview on their laptop computers.  At the end of the interview, the director reviewed the notes, made changes, and gave them to the employee, directing him to review the notes, make any necessary changes and then sign the document.  The document included the following statement below the signature line:  “Refusal to acknowledge the veracity or to correct a statement in writing is equivalent to a refusal to cooperate with the administrative investigation.”

The employee declined to sign the notes because he did not believe they were accurate or complete.  The director told the employee that he could take the notes to his attorney for review, but if he did not sign the notes, he could not return to work until he signed them.  The director also gave the employee a document stating that his refusal to sign the notes was insubordination and a “class III infraction.”  When the employee continued to refuse to sign the notes, the director collected his badge and keys.  This was the first time the employer had required an employee to attest to the veracity of investigative interview notes.  The employer did notify the union prior to the interview that it would be implementing such a requirement.

The NLRB found the employer had violated the NLRA by unilaterally introducing the signature requirement without giving the union notice and an opportunity to bargain about the new requirement.  In doing so, the NLRB rejected the employer’s contention that the union had waived its right to bargain over the change in the collective bargaining agreement’s management-rights clause.  The NLRB found a provision in that clause giving the employer “the right to make and alter from time-to-time reasonable rules and regulations . . .” did not constitute a “clear and unmistakable waiver” of the union’s right to bargain about the signature requirement.  According to the NLRB, the “rules and regulations” language in the management-rights clause was “couched in general terms and does not clearly cover” the signature policy.  Rules and regulations language that “does not mention any policies or procedures relating to investigative interviews, or investigations of any kind”  is “too vague to constitute a waiver of the Union’s statutory right to bargain over the imposition of [the] new requirement.”  Therefore, the employer did not meet its burden, as the party asserting the waiver, to establish the parties “unequivocally and specifically” agreed to allow “unilateral employer action.”

This case underscores that the scope of bargainable subjects is broad and that unionized employers may be required to bargain over even seemingly minor and incidental new requirements.  It also points out that general management rights clause language will not suffice as a clear and unmistakable waiver of a union’s right to bargain about mandatory subjects of bargaining.