NLRB Reminds Employers: ‘Fighting’ During Union Organizing May Be Protected Activity

The National Labor Relations Board has reminded employers that they must tolerate a certain degree of heated discourse during a union organizing campaign before discipline or termination may be warranted.

On June 27, 2019, the Board, in Pacific Green Trucking, Inc., 368 NLRB No. 14, ruled that a union organizer was unlawfully terminated for his union support and organizing activity, not, as the company asserted, for “fighting” with coworkers.

Although the employment “at will” doctrine generally allows employers to terminate an employee (and allows an employee to quit) for any reason, or even for no reason at all, the National Labor Relations Act protects most private-sector employees from discrimination or retaliation for engaging in protected concerted activity under Section 7 of the NLRA, such as engaging in union organizing.

The employee allegedly was spearheading an organizing effort. He alleged that he was interrogated, treated less favorably, and ultimately terminated because of his union activity, in violation of the NLRA.

The Board invoked its familiar Wright Line doctrine to examine whether the employer’s legitimate, non-discriminatory reason for terminating the union organizer (“fighting”) was a mere pretext for anti-union animus.

After the Board found that the company’s manager knew of the employee’s union organizing activity, it inferred anti-union animus from the manager’s statement that he “knew [the employee] was with the Union” and that the employee “shouldn’t do that” because the company “was giving [the employee] work” – comments the Board considered an implicit threat of job loss. It also found the statement to constitute an unlawful interrogation because it implicitly called for the employee to confirm or deny the statement.

The Board also found the manager’s reference to “fighting” an unlawful “euphemism for discussing or debating the union,” citing several other Board cases referring to similar euphemisms for union activity, including referring to an employee as a “problem person” or an “instigator.”

Thus, absent specific evidence of physical violence, and considering what it already had found to be unlawfully threatening and coercive statements toward the employee, the Board found the employee’s termination unlawful. The Board found further support for its decision in the fact that the company did not contest the employee’s unemployment claim. This suggested to the Board that the company did not sincerely believe the employee was terminated for cause, or that he had quit.

This case provides valuable lessons for employers experiencing union organizing, including:

  • A statement by a manager to an employee that the manager “knows” the employee supports the union may be unlawful interrogation, because the statement implicitly call for the employee to confirm or deny it;
  • Enforcement of workplace civility rules and policies against “fighting” with coworkers, without reliable evidence of actual (or credible threats of) physical violence, may be found to be evidence of unlawful “code” for anti-union discrimination;
  • Failure to oppose an employee’s unemployment compensation claim may give rise to an inference by the NLRB that the employee did not quit or was not terminated “for cause.”

Regardless of an employee’s “at-will” employment status, employers must be cautious before disciplining or terminating an employee during any stage of a union organizing effort. Consult your experienced labor and employment attorney for guidance.

Labor Board: Employee Conduct in Response to Employer’s Unlawful Actions Not Grounds for Discharge

An employer violated the National Labor Relations Act (NLRA) when it discharged an employee who refused to participate in a performance evaluation scheduled for discriminatory reasons, the National Labor Relations Board (NLRB) has ruled, reversing the decision of an Administrative Law Judge (ALJ). United States Postal Service, 367 NLRB No. 142 (June 4, 2019).

In this case, an employee was reinstated by a labor arbitrator who ruled in his favor on a grievance challenging his termination. On the employee’s first day back at work, which was still within the employee’s 90-day probationary period, his manager told him he would be given a performance evaluation. The employer did not have a prior practice of doing so for probationary employees.

The supervisor told the employee his “work quality” and “dependability” were “unacceptable.” The employee argued with the supervisor. The employee eventually stated he “could not take this” and left. The next day, the employer discharged the employee for “improper conduct” at his evaluation.

The employee filed an unfair labor practice charge. After a trial, an ALJ found the employer had violated the NLRA because it discriminatorily had given the employee the performance evaluation in retaliation for the employee’s grievance. Nonetheless, the ALJ recommended dismissal of the employee’s charge. The ALJ reasoned that the employee could not refuse to cooperate in the evaluation, and none of the evidence indicated the employer’s assessment of the employee’s performance was discriminatory.

The NLRB’s General Counsel appealed the decision to the NLRB, and the NLRB reversed the ALJ. The NLRB noted that the employer did not file exceptions (appeal) the ALJ’s finding that conducting the performance evaluation was unlawful. The NLRB found the employee “would not have been at that meeting but for [the employer]’s unlawful actions—specifically ordering the evaluation as retaliation for [the employee]’s protected activity.” Although the NLRB acknowledged “that there could be circumstances where an employee’s misconduct at an unlawful meeting could be so extreme as to [justify the termination],” it determined the facts in this case fell short of that standard.

The NLRB’s decision re-confirms that employee conduct — even if otherwise inappropriate (up to a point) — cannot result in discipline if it arose in response to the employer’s unlawful conduct. Employers should carefully evaluate all of the circumstances leading to an employee’s alleged insubordination or inappropriate conduct before deciding whether to discipline the employee.

Ride-Hail Drivers Are Independent Contractors, Not Employees, NLRB GC Concludes

UberX and UberBLACK drivers are independent contractors, not employees, of Uber, the General Counsel (GC) of the National Labor Relations Board (NLRB) has determined in a recently released Advice Memorandum.

The drivers therefore are not employees within the meaning of the National Labor Relations Act (NLRA) and are not eligible for NLRB-certified union representation or the protections of the NLRA.

The Memorandum applies the NLRB’s decision in SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019), in which the NLRB overruled a 2014 Board decision that had made it harder to prove an individual was an independent contractor. In SuperShuttle, the Board held that, in deciding whether an individual is an independent contractor or an employee, it will return to focusing on the extent to which the arrangement between the ostensible employer and the alleged employee provided an “entrepreneurial opportunity” to the individual, a factor downplayed in the 2014 decision.

NLRA Definition of Employee

Section 2(3) of the NLRA defines an “employee.” That definition expressly excludes “independent contractors.”

To determine whether an individual is an employee or independent contractor, the Board looks to the 10-factor common law test of agency in the Restatement (Second) of Agency. No single factor is controlling, and the chief focus is on the individual’s risks and opportunities from entrepreneurial activity. In the ride-hail and taxicab industry the NLRB gives significant weight to two factors: (1) the degree of control the company has over the amount and manner of the work performed; and (2) the relationship between the individual’s compensation and the revenue collected.

Control of the Work

The GC found that UberX drivers had significant entrepreneurial opportunities, because drivers had “near complete control of their cars and work schedules” and log-in (i.e., work) location, and they were completely free to work for competitors at any time. Drivers had complete discretion to work or not, any day or any time, as long as they provided at least one ride per month. Drivers may increase their earnings by working during periods of high demand, when Uber triggered “surge” pricing, logging in in certain areas and at certain times and accepting a minimum number of riders when Uber provided incentives to do so.

The GC noted that Uber exercised little control over the drivers. Uber requires certain minimum service standards, such as the cleanliness, condition, and comfort of cars, professional appearance, cordial behavior, safe driving, and efficient navigation. However, the GC noted that none of the standards demonstrated significant control by Uber or affected the drivers’ entrepreneurial opportunities.

Method of Payment

The GC explained that the method of payment for individuals is important because it can influence the incentive the company has to control the individual’s work. If the individual is paid by a flat fee, the company has little incentive to control the work because its cost and profit are not affected by how the work is performed. However, if the individual is compensated by commission, the company has a distinct incentive to control the work to increase the amount of commission as it shares in the increased fees. The GC stressed that the actual control exercised by the company is more important than the incentive for control a particular manner of pay may provide.

While noting Uber keeps a portion of the fee received for each ride, and it, therefore, has an incentive to control the drivers’ work, Uber actually exercised minimum control over the work of the drivers. Consequently, although the manner of payment suggests the drivers are employees, the limited control Uber exercised over the work of the drivers negated the importance of the incentive the manner of payment created.

Other Factors Favoring Independent Contractor Status

The GC discussed three additional factors that militated toward a finding of independent contractor status. First, the drivers were in control of “the principal instrumentality of the work” — the car — and they paid the chief operating expenses associated with the work: fueling, cleaning, and maintaining the vehicle. Second, the drivers received no supervision of their work from Uber. Finally, both the drivers and Uber understood their relationship was one of independent contractor, reflected by the facts that Uber issued the drivers with a Form 1099, not a Form W-2, and did not provide them any fringe benefits.

Factors Favoring Employee Status

The GC noted two factors that favored finding employee status: (1) the drivers needed no special skills to perform their work; and (2) the drivers were not working in a distinct business, but were working to fulfil Uber’s business purpose. However, the GC concluded those factors did not overcome the strong facts favoring independent contractor status.

UberBLACK

The GC found that UberBLACK drivers shared nearly all the characteristics of UberX drivers, and that the differences between the two even more strongly supported a finding of independent contractor status. The GC noted four facts: (1) UberBLACK drivers made a more significant capital investment, as their vehicles were more expensive; (2) they could hire other drivers to take a fare; (3) they could accept UberX riders in addition to UberBLACK riders; and (4) Uber contracts with UberBLACK drivers as a business, rather than as an individual.

Employers should expect the release of other Advice Memoranda from the GC dealing with this issue in other industries. As those are released, it will become clearer what the GC believes are the parameters of the SuperShuttle decision.

Jackson Lewis attorneys are available to answer questions about the Uber and SuperShuttle decisions and other developments from the Board.

 

Representation-Case Procedures, Students as Employees, Access to Private Property on NLRB Rulemaking Agenda

Among the National Labor Relations Board’s (NLRB) rulemaking priorities under the National Labor Relations Act (NLRA) are its representation-case procedures, “blocking charge” and voluntary recognition standards, student status as employees, and access to employer private property.

The priorities are included in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Long Term Actions/Short Term Actions), a semiannual compilation of information about regulations under development by federal agencies, published in the spring and fall, that detail the most significant regulatory actions agencies expect to take in the coming year. The Board did not set forth expected rulemaking dates, but short-term actions likely will occur during 2019.

Representation-Case Procedures – Long-Term Action

It appears the Board has its sights squarely set on making substantial changes to the union-friendly amendments made by the Obama-era Board to representation election procedures. In the summary that accompanies this action item, the Board has written: “The . . . NLRB will be revising the representation election regulations located at 29 CFR part 102 (the Election Regulations), with a specific focus on amendments to the Board’s representation case procedures adopted by the Board’s final rule published on December 15, 2014 (the Election Rule or Rule).” (Emphasis added.) Those amendments have been effective since April 14, 2015. They allow union organizing to move at an accelerated pace by, among other things, significantly reducing the time between the filing of a representation petition and the election from an average of approximately six weeks to an average of 23 days. Other provisions create substantial burdens on employers by requiring, within seven days, submission of a Statement of Position addressing all potential bargaining unit issues, the provision of copious amounts of information regarding potential voters, and deferring critical election issues, such as supervisory status issues, until after the election is held. The conventional wisdom is that the NLRB will make employer-friendly changes to the procedures.

Blocking Charges and Voluntary Recognition – Short-Term Action

The Board has carved out items from its representation-case procedures review and included them in its short-term action list. The Board expects to reconsider the standards for blocking charges and the voluntary recognition bar.

The Board’s current practice is to suspend the processing of an NLRB representation petition if a “blocking charge” is filed by the union. (A “blocking charge” is an unfair labor practice charge alleging unlawful conduct which, if true, might interfere with employees’ ability to make a free and uncoerced choice of representative.) In rulemaking, the Board could eliminate blocking charges altogether.

The NLRB’s “voluntary recognition bar” policy requires workers to wait at least six months before seeking to oust a union that had been voluntarily recognized as their bargaining representative (as opposed to having been selected by a majority of the employees voting in an NLRB representation election). In rulemaking, the Board could shorten the bar to less than six months.

Students as Employees – Short Term Action

The NLRB also will consider rulemaking regarding the standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 153(3)). For more information, see our article, Labor Board to Revisit Right of Graduate Students to Unionize.

Access to Employer Private Property – Short-Term Action

The NLRB will consider rulemaking regarding the standards for access to an employer’s private property. Conflicts between employer property rights and federal labor law have long been complicated and controversial, often leading to litigation. The case law in this area can be complex and interpretations of the NLRA by the Board have been subject to change. To provide clarity, the NLRB will consider rulemaking about the standards for access (by employees and unions) to an employer’s private property.

Access rules also have been front and center for change on the agenda of the NLRB’s General Counsel, Peter Robb. Robb directed the NLRB’s Regional Directors to submit to his Division of Advice unfair labor practice cases filed in the Regional Offices related to “off-duty employee access to property.” (See “Mandatory Submissions to Advice” Memorandum GC 18-02.) The Memorandum included examples of NLRB decisions and situations when the GC was interested in potentially asking the NLRB to change existing case law. Two of those decisions were Capital Medical Center, 364 NLRB No. 69 (2016), and Piedmont Gardens, 360 NLRB No. 100 (2014).

Joint Employer – Long-Term Action

In addition to the priorities included in the unified agenda, the NLRB also is in the process of rulemaking on the joint employer issue. The NLRB Notice of Proposed Rulemaking (NPRM) regarding the standard for determining joint employers received more than 7,000 comments. (See our article, Labor Board Seeks Public Comments on Proposed Rule for Determining Joint-Employer Status.) They are now being reviewed by a contractor hired by the NLRB to categorize the comments. No timetable has been set for issuance of the rule.

***

The NLRB’s published agenda is ambitious and significant. According to Chairman John F. Ring, the Board majority has a strong interest in continued rulemaking and “addressing these important topics through rulemaking allows the Board to consider and issue guidance in a clear and more comprehensive manner.”

 

 

 

Labor Board Upholds Employers’ Right to Provide Truthful Information about Right to Work Laws

The National Labor Relations Board (NLRB) has dismissed a complaint against a Wisconsin employer that published a document informing employees of their right to stop paying union dues under Wisconsin’s right to work law. Metalcraft of Mayville, 367 NLRB No. 116 (Apr. 17, 2019).

Employers in states with new right-to-work laws have questions about what they can and cannot say to employees about employees’ right to decide not to pay union dues. In 2015, Wisconsin enacted a right-to-work law that prohibited employers and unions from agreeing to contract clauses that force employees to pay union dues as a condition of employment. Wisconsin’s law also gave employees the right to revoke dues checkoff authorizations on 30 days’ notice. While this provision was held invalid by the U.S. Court of Appeals for the Seventh Circuit in 2018, one Wisconsin employer seized upon the new Wisconsin law to inform employees of their right to stop paying dues to their union.

After negotiating a new labor agreement with the Machinists’ union, the employer, Metalcraft of Mayville, took the position that the dues checkoff authorizations employees had previously signed were invalid because they did not permit revocation on 30 days’ notice, but, instead, only allowed employees to cancel the authorization during a short window each year. The company then sent a series of letters to employees informing them of their right not to pay union dues.

Its first letter said:

If you want to pay Union dues, it is now your decision and it’s entirely voluntary. Currently you pay $59.30 per month or $711.60 per year in Union dues. All together our employees’ payments of Union dues are about $255,000 per year. Based on the signed authorization for Union dues, we believe it is a violation of the Right-to-Work law. Therefore, effective after June 4, we will no longer deduct the $59.30 from your paycheck per month.

The company sent a second letter to employees listing several questions and answers:

Q:        Look at the yearly total we pay the union, where is all that money going?

A:        Much of the information about the distribution of union dues is publicly accessible. For example you can Google IAM and find answers to your questions directly from the source or other sources if you want to find out more.

 

Q:        Why should I pay them anything after they screwed up the contract negotiations?

A:        This is a personal choice that every individual has to decide on their own and how they will handle their money.

 

Q:        Can I still work here if I don’t join the union?

A:        Yes. By state law, being a member of the union is no longer a condition of employment.

 

Q:        What happens if we decide not to pay union dues?

A:        Then you don’t pay union dues.

The Machinists union filed unfair labor practice charges under the National Labor Relations Act (NLRA) over the company’s failure to withhold dues and its communications to employees. The union claimed the company illegally stopped withholding union dues, arguing that the Wisconsin law relating to dues checkoffs was preempted by federal law. It also claimed the company’s letters unlawfully undermined the union.

After a hearing, an NLRB administrative law judge (ALJ) agreed with the union, ruling the company violated the law on all counts. Metalcraft appealed to the NLRB.

The NLRB overruled the ALJ, writing that the company had a “sound arguable basis” for asserting the checkoffs were invalid. The Board pointed out that although Wisconsin’s law on checkoff revocations ultimately was found invalid in 2018, Metalcraft’s actions occurred before that court decision was issued. Thus, at the time Metalcraft stopped the dues checkoff, the law was unsettled and Metalcraft had a reasonable argument that it was complying with Wisconsin’s law as written.

The NLRB also dismissed the “undermine” allegation, pointing out that an employer may lawfully criticize, disparage, or denigrate a union, provided its expression of opinion does not threaten employees or otherwise interfere with their rights. While the ALJ had said the employer disparaged the union, the NLRB stated that “it is perfectly lawful for an employer to criticize a union.” Key to the NLRB’s decision was the fact that the employer expressly stated the decision not to pay union dues was the employee’s alone. The employer did not tell employees what they should do.

The NLRB’s decision shows that the current Board is committed to respecting employer rights to free speech even where the employer’s action may be perceived as aggressive. Taking an aggressive approach might not be appropriate for every company or for every situation. Employers should consult with counsel about the strategic and practical pros and cons of any course of action.

NLRB: Employer Lawfully Took Control of Investigatory Interview

The NLRB has ruled that, under the particular circumstances, an employer representative lawfully barred a union representative from asking questions during an investigatory interview while the employer representative was questioning the employee to get his version of events. PAE Applied Technologies, LLC, 367 NLRB No. 105 (Mar. 8, 2019). NLRB Chairman John Ring and Member William Emanuel joined in the decision. Member Lauren McFerran dissented.

Union-represented employees have a right, upon request, to have a representative present during an investigatory interview the employee reasonably believes may result in his discipline (called “Weingarten rights,” after the decision in which the U.S. Supreme Court recognized the right), but the union representative does not have the right to “interfere” with the investigation. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 267 (1975). A Weingarten representative must be allowed to “pro­vide advice and active assistance” and may not be required to “sit silently like a mere observer.” Although a representative may assist the employee or try to clarify the facts or suggest other employees who may have knowledge of them, the employer representative may insist that he is interested, at that time, only in hearing the employee’s own account.

After PAE Applied Technologies received a customer’s complaint about employee John Poulos’ behavior, PAE notified Poulos that he was under investigation and scheduled an interview to get his side of the story. Two union officers attended the meeting, along with four employer representatives. PAE’s investigator, James Rutledge, was in charge of the interview. At the outset, one of the union representatives began asking Rutledge questions, instead of permitting Rutledge to question Poulos. Soon, a number of the union and employer representatives in attendance began talking over one another. Rutledge told everyone to stop talking and that he alone would ask questions.

Rutledge then instructed Poulos to write out his version of the incident under investigation and refused to allow any questions while Poulos completed the statement, although a union representative was allowed to leave the room with a PAE representative to ask a question. Rutledge also allowed Poulos private time with his representatives while Rutledge reviewed the statement. Rutledge then asked Poulos questions, to which Poulos answered in writing and read aloud to everyone in the room. Rutledge continued to prohibit the union representatives from asking questions or otherwise participating, but questions and answers were allowed after he had finished.

The NLRB ruled that PAE’s limitations on the union’s participation in the meeting were lawful and consistent with the legal principles set forth in Weingarten and Board cases applying it. It emphasized that PAE had the right to get Poulos’ version of the incident without disruption and noted that, when he heard “a cacophony of voices,” Rutledge determined that the meeting was out of control and keeping him from being able to get Poulos’ side of the story. The Board found significant that Rutledge’s instruction to everyone to stop talking began “precisely when he sought to elicit Pou­los’ written statement about the February 16 incident — i.e., at a time when he was free to insist that no one disrupt Poulos from providing his own account of the matter un­der investigation.” The Board also found significant that, after Poulos had prepared his written statement, but before questioning him about it, Rutledge permitted Poulos to speak with the union representatives, and that Rutledge allowed the representatives to ask questions later.

This case shows how employers with union-represented employees may conduct and control Weingarten meetings when faced with disruptive behavior by a union representative.

Please contact Jackson Lewis with any questions about this case.

NLRB General Counsel Seeks to Limit Use of Investigative Subpoenas in Unfair Labor Practice Investigations

The National Labor Relations Board’s Office of General Counsel is urging Regional Directors to limit their use of investigative subpoenas and instead issue complaints “based on the evidence available,” according to a March 13, 2019, memorandum obtained by Bloomberg Law.

The memo is General Counsel Peter Robb’s latest effort to reduce case processing time. It reiterates that charged parties are expected and encouraged to participate fully in a Region’s unfair labor practice investigation. While Regional Directors historically have issued investigative subpoenas to charged parties who refuse to cooperate, such subpoenas, according to the memo, can “unnecessarily prolong the investigation and impede the prompt resolution of the underlying dispute.”

Following Robb’s instructions, in cases where a charged party’s lack of cooperation is “significant,” Regional Directors are permitted and encouraged to issue unfair labor practice complaints based on the evidence available (provided the evidence supports the issuance of a complaint), rather than pursue additional evidence through an investigative subpoena. Whether a lack of cooperation is significant will be left to the Regional Director’s discretion and “dictated by the particular facts and circumstances of the case.” However, the memo notes a lack of cooperation could arise where the charged party fails to respond to a charge, or provides a written statement but refuses to “provide key information” requested by the Region. Although the memo does not clearly restrict a Regional Director’s determination of whether a failure to cooperate is significant, it notes that typically “failures to produce a witness or witnesses where credibility disputes may dictate issuance of complaint” will not rise to that level. Typically, these situations would not include failures to produce a witness or witnesses where credibility disputes may dictate issuance of complaint.

The Regional Director also has discretion to note the lack of cooperation in the complaint in this footnote language:

On (DATE(S)), the Region requested that Respondent cooperate in the administrative investigation of the ULP charge(s) conducted prior to issuance of the instant complaint. Respondent failed to fully cooperate in the investigation by refusing to furnish certain documents relevant to the disposition of the charge(s).

This latest memorandum highlights the importance of a party strategically considering the submission of a timely response to a Region’s request for information regarding an unfair labor practice charge. While responding may lower the risk that the Region will issue a complaint for failure to cooperate, it may result in providing too much information because, for example, the information request is overbroad. An employer that receives notification that an unfair labor practice charge has been filed against it should consult with counsel about appropriate next steps.

 

 

Labor Board: Is Union’s Inclusion of Weingarten Rights Statement in Collective Bargaining Agreement Coercive?

The National Labor Relations Board (NLRB) has remanded a 2013 decision to an administrative law judge to determine whether the Board’s landmark 2017 decision on work rules and policies affects its 2013 determination that a union did not violate National Labor Relations Act (NLRA) Section 8(b)(1)(A) by unilaterally including a Weingarten rights statement on the back cover of a collective bargaining agreement and distributing that agreement to employees. California Nurses Association, National Nurses Organizing Committee, 31-CB-012913 (Mar. 4, 2019).

In the 2013 decision, California Nurses Association, 359 NLRB 1391, the NLRB also decided the union’s unilateral action ran afoul of the NLRA’s requirement under Section 8(b)(3) of the NLRA. The Board did so based on the parties’ “clear understanding that the printed contract would not contain the Weingarten statement.”

The Weingarten Rights Statement

The Weingarten rights statement in dispute read as follows:

The Weingarten Rights

The Supreme Court has ruled that an employee is entitled to have a CNA Representative present during any interview which may result in discipline. These rights are called your Weingarten Rights.

You must request that a CNA rep be called into the meeting.

You must have a reasonable belief that discipline will result from the meeting.

You have the right to know the subject of the meeting and the right to consult your CNA rep prior to the meeting to get advice.

Do not refuse to attend the meeting if a rep is requested but denied. We suggest you attend the meeting and repeatedly insist upon your right to have a CNA rep present. If this fails, we suggest that you not answer questions and take notes.

The Section 8(b)(1)(A) issue focused on the language “You must request that a CNA rep be called into the meeting.”

Original Decision Vacated

This case has a complicated history. In 2014, the Board vacated and retained for “further action as appropriate” its 2013 California Nurses Association decision following the U.S. Supreme Court invalidating numerous Board decisions because the composition of the Board at the time of the decision included two persons whose appointments were constitutionally infirm.

In 2018, the Board reconsidered and affirmed its 2013 decision that the union’s unilateral action ran afoul of NLRA Section 8(b)(3) bargaining requirements as contrary to the parties’ clear understanding. California Nurses Association, 31-CB-012913 (Nov. 14, 2018) (unpublished). (The Board left the door open to finding, in a future case, that a union’s unilateral inclusion of a Weingarten rights statement in a collective bargaining agreement violates Section 8(b)(3) on an additional basis. In the 2018 decision, the Board stated that “it [is] unnecessary to pass on . . . the additional rationale that the [union] also unlawfully modified the contractual disciplinary procedure in the parties’ collective-bargaining agreement.”) The Board required the union — at its own expense — to reprint and redistribute the collective bargaining agreement without the Weingarten language. It also decided to retain “for further consideration” the Section 8(b)(1)(A) allegation.

The Section 8(b)(1)(A) Issue

Section 8(b)(1)(A) makes it unlawful for a labor union to restrain or coerce employees in the exercise of their Section 7 rights. Section 7 protects the right of represented employees to refrain from exercising their Weingarten right to union representation. In 2013, deciding the union had not violated Section 8(b)(1)(A), the Board applied its then-existing test for determining whether a work rule is lawful. According to the 2013 Board, under that test, provisions must be read in their context and improper interference with employee rights should not be presumed. The Board decided that employees would not reasonably understand “The Weingarten Rights” statement to restrain their right to forgo union representation at a disciplinary interview.

In 2017, in The Boeing Co., 365 NLRB No. 154, the NLRB created a new, employer-friendly standard for determining whether a work rule or policy has been unlawfully maintained that applies retroactively to all pending cases. That standard requires balancing the “the nature and extent of the potential impact on NLRA rights” against the “legitimate justifications associated with [a] rule.” An administrative law judge must now issue a decision addressing whether and to what extent the 2013 decision is affected by Boeing.

This case is another example of the Trump Board and NLRB General Counsel taking a close look at possible union misconduct. The General Counsel, for example, has directed field office staff to prosecute a broader array of cases than previously against unions that engage in negligent behavior toward their members.

 

 

 

Labor Board: Nonmembers Cannot Be Compelled to Pay Union Lobbying Expenses

Unions no longer can require objectors to contribute toward union lobbying costs, the National Labor Relations Board (NLRB) has ruled in a 3-1 decision. United Nurses & Allied Professional (Kent Hospital), 367 NLRB No. 94 (Mar. 1, 2019).

The NLRB said lobbying costs of all kinds are not considered part of a union’s statutory collective-bargaining obligations under the National Labor Relations Act (NLRA), and, therefore, unions cannot compel support. This decision represents the latest setback to efforts by public and private sector unions to collect and make use of nonmembers’ contributions.

The facts of Kent Hospital date back nearly a decade. In 2009, Jeanette Geary, a nurse working at Kent Hospital in Warwick, Rhode Island, resigned her union membership with United Nurse and Allied Professionals (UNAP). As a nonmember where the collective bargaining agreement contained a union-security provision requir­ing all new unit members to join the Union by their 30th day of employment, Geary was still obligated to contribute certain fees to UNAP. As established by the U.S. Supreme Court decision in Communications Workers v. Beck, 487 U.S. 735 (1988), a union may compel nonmembers to contribute fees deemed necessary to “performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.” Duties deemed necessary include collective bargaining, contract administration, and grievance adjustment.

In 2009, UNAP spent $22,650 from its general operating fund to contribute to its lobbying efforts in the Rhode Island and Vermont state legislatures. Those funds went directed toward lobbying on seven bills. The bills related to health care institutions, and they ranged in purpose from increasing funding for mental healthcare services at UNAP-represented facilities to increasing state monitoring of certain hospitals.

Geary challenged the lobbying expenditure as outside the scope of UNAP’s statutorily required functions and as unrelated to collective bargaining, contract administration, or grievance adjustment. The NLRB agreed. It found that lobbying expenses, at best, can serve only indirectly a union’s representative functions. Political functions, such as lobbying, are “too attenuated to justify compelled support,” according to the NLRB.

This is the opposite of the conclusion the NLRB came to when it first reached a decision in this case in 2012, under a more union-friendly NLRB. At that time, a majority of the Board endorsed a potential balancing test whereby lobbying for certain bills considered “germane” to statutorily-related union activities (such as bills increasing the minimum wage) would be permitted with nonmember contributions. However, the Supreme Court vacated that ruling when it held that three recess appointments to the Board in January 2012 were invalid. (For more on the Court’s decision, see our article, Supreme Court Issues Historic Decision on President’s Recess Appointment Power.) Member Lauren McFerran endorsed a similar balancing test in her dissent to this latest NLRB ruling.

The United Nurses ruling highlights two trends. First, the NLRB continues to reject the Obama-Board balancing tests in favor of bright-line rules on what is and is not permitted under the NLRA. Second, the decision demonstrates the continued limitations unions face in conducting political activity. The Supreme Court in 2018 disallowed public sector unions from collecting fees from nonmembers altogether. (See our article, Supreme Court Rules Unconstitutional Mandatory Fees Imposed on Non-Union, Public Sector Employees.) It appears that may apply to the private sector.

Please contact Jackson Lewis with any questions about this case or the NLRB.

 

NLRB Chairman Fires Back at Request to Withdraw Notice of Proposed Rulemaking on Joint Employment

John Ring, NLRB Chairman, has sent a five-page letter to several members of Congress in response to their request for the NLRB to withdraw its Notice of Proposed Rulemaking on the joint-employer standard.

In the January 17, 2019 letter recently released to the public, the Board Chairman spent considerable time defending the Board’s position and clarifying a recent appellate decision in Browning-Ferris by the D.C. Circuit. For a detailed description of the decision, please see Joint Employment under NLRA: Interpreting D.C. Circuit Court’s Browning-Ferris. The Chairman stressed the need for more clarity in this area of the law and that determining joint-employer status continues to be one of the most difficult and debated subjects in labor law.

In support of his position, the Chairman stated that the Board has received more than 26,000 comments in response to the NPRM with two weeks remaining for additional comments at the time he prepared the letter. Ring further stressed that nothing in the D.C. Circuit’s decision “forecloses” the Board’s joint-employer rulemaking or otherwise requires the Board to suspend or withdraw its NPRM. He quoted various aspects of the D.C. Circuit’s decision in an effort to clarify the Court’s ruling and correct the interpretation articulated by several members of Congress. Ring remained steadfast in the decision to use the NPRM to obtain clarity and direction in formulating the final rule. He concluded as follows:

For all of these reasons, a majority of the Board continues to believe that Notice-and-Comment rulemaking offers the best vehicle to address the uncertainty surrounding the joint employer standard. Rulemaking provides an opportunity for input by tens of thousands of public commenters, including those who may not be able to afford an attorney to participate in our case adjudication process. Withdrawing the NPRM at this time certainly would be unfair to the thousands of individuals and groups that have expressed such a strong desire to be heard on this important topic.

In light of the recent D.C. Circuit Court’s decision, the Board extended the comment period deadline from January 14 to January 28, 2019, to provide an opportunity for the public to weigh in following the decision.

Jackson Lewis attorneys are available to address any questions about the joint-employer rulemaking and the current standard.

 

 

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