Missourians Reject Right-to-Work

Missouri voters have rejected right-to-work. Senate Bill 19, which would have made Missouri the nation’s 28th right-to-work state, was passed by the Missouri legislature on February 2, 2017, and signed into law by then-Governor Eric Greitens. Labor organizations and their supporters gathered enough signatures to keep the law from going into effect until voters in Missouri had an opportunity to weigh in.

A “right-to-work” law generally prohibits an employer and the union representing its employees from requiring those employees to join the union or pay dues to the union as a condition of their employment.

After Senate Bill 19 was signed into law, labor organizations and their supporters spent millions of dollars to gather enough signatures to put the bill to a vote. Ten days before the law was to become effective (on August 28, 2017), union supporters submitted more than 310,000 signatures (almost three times the 108,467 that were needed) and stopped the law from taking effect. On November 22, 2017, the Secretary of State certified that enough signatures had been submitted and set the right-to-work law for a vote on whether the law should take effect.

The vote was originally scheduled for the November 2018 mid-term general elections. However, on May 17, 2018, the Missouri legislature moved the vote to August 7, when Missouri holds its primaries.

Supporters of “right-to-work” laws generally argue that employees should not be forced to join a union that they do not wish to support. Opponents of “right-to-work” claim that such laws unfairly allow employees to receive the benefits of union contracts and representation without requiring them to contribute financially to the costs of obtaining those benefits.

Reportedly, lawmakers have indicated a willingness to reintroduce right-to-work legislation in 2019, but they have admitted they have to evaluate first where the “political will” is.

Jackson Lewis attorneys are available to discuss how this and other developments affect employers and their businesses.


Weingarten Rights Not Violated; Employee Lawfully Terminated for Refusal to Take Drug/Alcohol Test

An employee’s Weingarten rights have limits, especially as to drug and alcohol testing, where time is often of the essence, an NLRB Administrative Law Judge has held. Fred Meyer Stores, Inc., No. 19-CA-206136 (July 2, 2018).

The National Labor Relations Board has long-recognized unionized employees’ right to have a union representative present for investigative meetings that may result in discipline (these “Weingarten rights” do not apply in non-union workplaces). In Fred Meyer Stores, Inc., a cashier was suspected of drinking alcohol on the job after two customers allegedly reported smelling alcohol on his breath. The employee was called in by management for a meeting and once the employee understood the nature of the meeting, he requested his Weingarten right to union representation. Weingarten rights were spelled out to the employee on a union-provided card, which included numbers for individual union representatives, plus a 24/7 “emergency” phone number printed in red. The employee called multiple union representatives, but could not reach one directly. He did not call the “emergency” line.

After about 20 minutes, management asked the employee to submit to a drug/alcohol test, which the employee refused to do without a union representative. The employee was advised that a union representative could attend if available, but the employee continued to refuse to take the test in light of his inability to reach a union representative.

The employee was suspended pending investigation, and his employment was ultimately terminated a few days later.

The Administrative Law Judge rejected the employee’s challenge to his termination on Weingarten grounds, recognizing that “alcohol testing is time sensitive.” The Judge also found the company’s actions reasonable in light of the employee’s failure to contact an available union representative through the union’s 24/7 emergency phone number.

In other contexts, the Board has found that an employer’s refusal to allow an employee accused of alcohol or drug abuse union representation violated the employee’s Weingarten rights. The Judge in Fred Meyer Stores distinguished those cases in rejecting the employee’s claim in this case.

Fred Meyer Stores reminds employers that unionized workers must be given a reasonable opportunity to seek and obtain union representation before requiring a drug or alcohol test. However, an employer need not wait indefinitely and risk losing the utility of a time-sensitive drug or alcohol test before testing an employee for suspected substance abuse.

Jackson Lewis attorneys familiar and experienced with this issue are available to discuss this case and how it impacts your workers and business.

NLRB Member Pearce, One of Two Remaining Democrats, May Not Get Third Term

The Trump Administration is being asked not to give Member Mark Gaston Pearce, one of two remaining Democrats on the National Labor Relations Board, another term after his current term, his second, expires on August 27, Bloomberg BNA has reported.

Industry groups reportedly have asked the President to delay re-nominating Member Pearce to a third term, a process the Trump Administration had begun. That process has apparently “been put on hold.” Pearce was sworn in as a Board Member on April 7, 2010.

Trump has re-shaped the NLRB by nominating Republican Members to fill Board vacancies. Last fall, the U.S. Senate confirmed Marvin Kaplan and William Emanuel, which, along with then-Chairman Philip Miscimarra, a Republican, gave the Board a Republican majority for the first time in more than a decade. In December 2017, that Board issued a series of business-friendly decisions that overruled high-profile decisions championed by labor organizations and the Obama Administration. More recently, management-side labor attorney and Republican John Ring was confirmed as a Board Member to replace Miscimarra, whose term ended after the decisions were issued.

Traditionally, the NLRB is made up of three members of the sitting president’s political party and two members of the minority party. That means that the seat Pearce vacates would be filled by a Democrat appointed by Trump. However, Trump also has the option not to fill the vacant seat. The Board could operate with four of the five seats filled – only three Members are needed for a quorum. Although having an even number of Board members could increase the possibility of 2-2 votes, given that three of the four Members would be like-thinking Republicans, that possibility should be minimal.

With or without Member Pearce, or any replacement, Trump’s Republican-controlled NLRB is expected to continue undoing decisions that heavily favored labor organizations.

Jackson Lewis attorneys are available to discuss the most recent developments at the NLRB and how they impact your specific organization.


NLRB Expands Its Alternative Dispute Resolution Program

The National Labor Relations Board has announced it will begin a pilot program to encourage parties to use its Alternative Dispute Resolution program.

Under the pilot program, the NLRB’s Office of the Executive Secretary will proactively engage parties with cases pending before the Board to determine whether the case is suitable for ADR. The process is voluntary.

The ADR program began in 2005 as an alternative means for parties to resolve cases pending before the Board. According to the NLRB, since its inception, mediators have assisted parties in reaching settlements in approximately 60 percent of the cases in the ADR program.

The program is available to any party with an unfair labor practice or compliance case pending before the Board. Once the parties enter the program, the ADR Program Director arranges for a neutral to assist the parties. The neutral will conduct a conference, normally in person, to assist the parties in reaching a settlement. The neutral has no authority to impose a settlement; whether or not to settle remains voluntary. NLRB rules provide that all settlement discussions during the ADR process are confidential and that evidence as to what transpired during the ADR process may not be used in any administrative or court proceeding.

The ADR program results in only a minimal delay in the case proceedings. Although entry into the ADR program places all case deadlines on hold, a case may only remain in the ADR program for 28 days, unless the parties and the ADR Program Director agree otherwise. The parties are not responsible for any costs or expenses associated with the program.

Employers should weigh carefully whether ADR may be appropriate in their cases. For example, where a charging party has overvalued its case, an NLRB mediator who is seen by the charging party as a neutral may be helpful. Although not every case is suitable for the ADR program, the program may be a viable alternative to continued litigation.


NLRB GC: Employer Can Unilaterally Implement Decisions Made Before Union Election Victory

An employer lawfully unilaterally implemented a stricter tardiness and absentee policy even though a union had recently won an election to represent its workers, according to a memorandum released by the National Labor Relations Board General Counsel’s Division of Advice. Cott Beverages, Inc., No. 16-CA-206068 (Div. of Advice, Apr. 26, 2018, released May 15, 2018).

Cott Beverages, Inc., with a production and warehouse facility in Texas, issued an employee handbook in October 2016 that contained an attendance policy. The policy stated that employees would be assessed points for violations, including one-half point for each instance of tardiness from 1 minute to 120 minutes. Progressive discipline would be assessed after six points had been issued within a rolling 12-month period. Enforcement initially was “lax and sporadic.” Hoping to achieve more uniform compliance, the employer held trainings for its employees in late-February and early-March 2017 on the attendance policy. Employees were required to sign acknowledgements that violations would result in coaching.

Shortly after the trainings, a union filed a petition to represent Cott’s employees. The union won the election and was certified in early-May 2017. Subsequently, the union filed an unfair labor practice charge with the NLRB alleging the employer had violated the National Labor Relations Act by unilaterally enforcing the attendance policy more strictly in June 2017.

As the advice memorandum explains, the general rule is that an employer cannot make unilateral changes to its employees’ terms and conditions of employment; it must give the union an opportunity to bargain. Stricter enforcement of an existing policy after a union election will generally be deemed such a unilateral change. However, here, the Division of Advice determined that the employer had not violated the Act because it had already decided to strictly enforce the tardiness policy before the election. The Division noted that the training sessions held before the election supported the employer’s assertion that the decision had been made pre-election. A “firm decision” to change a condition of employment made before an election, the Division explained, will not be found unlawful even if the actual implementation occurs after the election. The charge was dismissed.

This advice memorandum reminds employers that, although bargaining with a newly certified union is usually required before an employer may make any substantive changes to its employees’ terms and conditions of employment (such as an attendance policy), an employer does not have to reverse course on previous decisions, even if those decisions have not been fully implemented when the union is certified. Employers that lose NLRB representation elections and want to make changes unilaterally should review the status of any workplace policy initiatives to determine whether a documented final decision on implementation of the change previously had been made. If so, the employer likely may proceed with the change without bargaining with the union.

NLRB GC: Employer Can Refuse Union’s Request to Record Meetings and Interviews

The National Labor Relations Board General Counsel’s Division of Advice has concluded that an employer could refuse to allow a union’s representatives to record monthly team meetings and investigatory interviews. GE Appliances, Haier, 21-CA-202535 (Div. of Advice, Apr. 17, 2018, released May 15, 2018). The Division found the refusal was lawful based upon the Board’s long-standing policy disfavoring verbatim recordings of meetings between employers and unions for collective-bargaining purposes.

GE Appliances, Haier, sells and repairs home appliances and parts nationwide. The employer’s service technicians, who are represented by a union, work from their homes and are dispatched on service calls to homes and businesses. The employees’ manager conducts monthly in-person team meetings with the technicians. In addition, union representatives are asked to attend any meetings where investigatory interviews take place that could lead to the discipline of the interviewee.

In late-2016, the employer conducted an investigatory interview with a bargaining unit member over time card discrepancies. During the subsequent grievance process, the union asserted that typewritten notes the employer’s manager had prepared during the initial meeting were incomplete. It also separately asserted that the manager regularly announced policy changes during monthly team meetings. Therefore, the union requested it be allowed to record team meetings and investigatory interview meetings because those meetings could “threaten the rights of each employee.” The employer refused the request.

The Advice Division found the refusal did not violate the NLRA. The Division explained that the Board has had a long-standing policy of prohibiting audio recordings of bargaining negotiations and grievance meetings because of the potential to hamper open communications. The Division found the request to record team meetings and investigatory interviews implicated the same adverse effects on the bargaining process. It was concerned that the union’s express purpose of recording the meetings — to preserve the manager’s statements to later impeach him — could have a chilling effect on informal resolution of workplace disputes.

Finally, the Division noted the request here did not implicate the Section 7 rights of individual employees to record conversations, which arguably could be protected under certain circumstances. Rather, the request was made by the union on behalf of its representatives. Thus, there was no need to evaluate the employer’s response under the Board’s workplace rule guidance in The Boeing Co., 365 NLRB No. 154, slip op. (Dec. 14, 2017). Accordingly, the Division advised that the charge be dismissed, absent withdrawal. Based on a review of the publicly available docket, it appears that the union withdrew the charge in April.

The Division’s advice memorandum slightly expands upon the types of meetings in which a union may not make audio recordings. Now, not only may an employer refuse to consent to such recordings during a grievance meeting, but also it may lawfully refuse the union’s request in connection with meetings that could result in a later grievance meeting, such as the investigatory meetings at issue here. Furthermore, the memorandum reminds both employers and unions that the Board’s policies reflect the view that the collective bargaining relationship works best when open, informal communication is used.

Seattle Ordinance Giving Drivers Right to Collectively Bargain Not Preempted by NLRA

A landmark law giving drivers of app-based transportation companies, such as Uber and Lyft, the right to collectively bargain is not preempted by the National Labor Relations Act, a three-member panel of the Ninth Circuit Court of Appeals has ruled. U.S. Chamber of Commerce v. City of Seattle, No. 17-35640 (9th Cir. May 11, 2018).

Among other things, the NLRA regulates union activity and collective bargaining among almost all private-sector employees in the United States. The Seattle law affords covered drivers with rights analogous to those accorded employees under the NLRA, such as the right to select a representative to negotiate certain terms and conditions of employment.

The Court also ruled the law is not exempted from the Sherman Antitrust Act, under the Sherman Act’s exemption for states to enact laws that regulate competition. (The Sherman Act prohibits price-fixing and other practices that inhibit competition.) The Ninth Circuit panel decided that Seattle’s law did not meet either of the exemption’s requirements. First, the law does “not ‘plainly show’ that the Washington legislature ‘contemplated’ allowing for-hire drivers to price-fix their compensation.” Second, “[i]t is undisputed that the State of Washington plays no role in supervising or enforcing the terms of the City’s ordinance,” the Court said, and the lack of active state supervision meant the “active-supervision requirement” of the exemption also was not met.

The Seattle City Council passed the law on December 13, 2015; it took effect in January 2016. From the outset, the law faced numerous legal challenges, with advocates for businesses and employees weighing in. On its face, the law is intended to improve public health, safety, and welfare by providing Seattle with a means to regulate for-hire and taxicab transportation services.

In addition to opening the door to further legal challenges under the Sherman Act, the panel’s ruling offers a potential silver-lining to workers’ rights advocates. By ruling that the law was not preempted by the NLRA, efforts to organize independent contractors, who are exempt from the NLRA, may increase through the passage of state laws similar to Seattle’s.

Please contact a Jackson Lewis attorney if you have any questions.



NLRB Chair Responds to Senators, Confirms NLRB Will Engage in Rulemaking for Joint Employer Standard

New NLRB Chairman John Ring has stated that the Board intends to use rulemaking to create a new joint employer standard.

The statement was in response to a May 29 letter from Democratic Senators Elizabeth Warren, Kirsten Gillibrand, and Bernie Sanders that harshly questioned whether the agency planned to use rulemaking to create a new joint employer standard to evade ethical restrictions in deciding cases that come before the NLRB.

The Democratic Senators also accused Ring of being biased and that the rulemaking outcome was predetermined. The Senators requested the NLRB refrain from using the rulemaking process to change the current union-friendly joint employer standard. (For more on the current joint employer standard under Browning-Ferris Industries, 362 NLRB No. 186 (2015), see our post, Labor Board Considers Joint Employer Standard Rulemaking.)

In his June 5, 2018, response, Ring confirmed that the NLRB will engage in rulemaking to determine what the standard is for two entities to be deemed a joint employer under labor law. Ring stated that a Notice of Proposed Rulemaking (NPRM) would be issued by this summer.

Ring denied that there was any intent to evade ethical restrictions in using the notice-and-comment rulemaking process. He explained that the rulemaking process would allow the NLRB to consider all views on what the joint employer standard ought to be. He also explained that rulemaking will permit the Board to address the joint employer standard in a comprehensive manner that will provide greater guidance for all interested parties — employers, unions, and employees — than traditional case-by-case adjudication allows.

Ring concluded by pledging to keep an open mind and to consider all points of view received from interested parties during the rulemaking process. However, he also reminded the Senators that he has his own opinions on this issue based on his many years as a management-side labor lawyer, and he should not be expected to be devoid of opinions any more than some of the previous union-side NLRB members were when they embarked on rulemaking to change the NLRB’s representation-case procedures in 2011 and 2014. The rules ultimately resulted in shorter, union-friendly election procedures.

For now, the public will have to wait for the NPRM, affording the opportunity for public comment on a newly proposed rule. A majority of the five-member NLRB will need to approve the proposed rule, and any new joint employer standard would be applicable only prospectively after approval of a final rule.

NLRB General Counsel Issues Employer-Friendly Work Rule Guidance

On June 6, NLRB General Counsel Peter Robb, the NLRB’s chief prosecutor, issued a detailed, 20-page Memorandum to the NLRB Regional Offices entitled “Guidance on Handbook Rules Post-Boeing.” (As General Counsel, Robb decides which unfair labor practice charges filed in the various NLRB regional offices should be pursued. Through his memorandum, GC Robb has instructed the regional offices when charges involving the legality of employer work rules should be pursued.) In The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the NLRB established a new standard for evaluating employer rules that balances the potential impact of the rule on employees’ NLRA rights against the employer’s legitimate justification for the rule. The decision also sets forth three categories of work rules: (1) rules that are generally lawful to maintain; (2) rules that require case-by-case consideration to determine if they are lawful; and (3) rules that are unlawful. In the memorandum, he articulates the types of work rules that he believes generally will fall under each category.

As we previously reported, in, Boeing, the Trump Board overruled an earlier NLRB case, Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), and adopted a new framework for deciding whether merely maintaining a facially-neutral work rule violates the National Labor Relations Act. Lutheran Heritage had set forth an analysis that, as applied, resulted in the Board finding many common-sense employer work rules unlawful. In Boeing, the NLRB established a new standard that balances the potential impact of the rule on employees’ NLRA rights against the employer’s legitimate justification for the rule and sets forth the three categories into which a work rule may fall.

Category 1 lawful rules include many rules that the NLRB likely previously would have found unlawful, such as those related to: (1) civility; (2) no-photography/no-recording; (3) insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; (4) disruptive behavior; (5) protecting confidential, proprietary, and customer information or documents; (6) prohibiting defamation or misrepresentation; (7) prohibiting use of employer logos and trademarks; (8) requiring authorization to speak for the company; and (9) banning disloyalty, nepotism, or self-enrichment.

Category 2 rules – those that warrant individualized scrutiny. GC Robb advised that “possible examples” of Category 2 rules include: (1) “Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment”; (2) “Confidentiality rules broadly encompassing ‘employer business’ or ‘employee information’ (as opposed to confidentiality rules regarding customer or proprietary information…)”; (3) “Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding the disparagement of employees…)”; (4) “Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark…)”; (5) “Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf…)”; (6) “Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work…”); and (7) “Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements…).”

Last, the GC’s examples of Category 3 unlawful rules include: (1) those that require confidentiality with respect to wages, benefits, or other working conditions and (2) those that prohibit joining outside organizations or voting on matters concerning employers.

It appears the General Counsel intends to apply The Boeing Company broadly. Please contact us if you have questions about your work rules.

Labor Board Considers Joint Employer Standard Rulemaking

The National Labor Relations Board has begun the process to consider rulemaking to establish a standard for determining joint employer status under the National Labor Relations Act, according to the Board’s filing in the Unified Agenda of Federal Regulatory and Deregulatory Actions.

The current standard is set forth in Browning-Ferris Industries, 362 NLRB No. 186 (2015). In that case, the NLRB announced a union-friendly joint employer test under which the Board will find two entities are joint employers where one exercises direct or indirect control over the other’s employees, or where one entity has reserved rights of control over the other’s employees, even if unexercised. The Browning-Ferris standard was reinstated when the NLRB vacated its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017) on February 26, 2018.

Hy-Brand, which overruled Browning-Ferris and reinstated the former joint employer standard requiring a finding of direct control, was vacated after the Board’s Inspector General released a report stating that Member William Emanuel should have recused himself from participating in the decision. Emanuel’s law firm represented one of the joint employers involved in the Browning-Ferris decision.

Since Hy-Brand was already overruled once, conventional wisdom is the Board, once again, will reverse Browning-Ferris when the opportunity arises. However, to reverse Browning-Ferris,all three Republican Board members (Emanuel, Marvin Kaplan, and Chairman John Ring) likely would need to participate in the decision to form a 3-2 majority. (A 2-2 vote would result in the Browning-Ferris standard remaining in place.)

It appears that the rulemaking proposal, which was prepared at the request of Chairman Ring, is an effort to avoid any future conflict problems and the inability of Senate Republicans to get legislation to overturn Browning-Ferris passed. (Legislation to overturn Browning-Ferris has been filed in Congress, but Senate Republicans have struggled to get the Democratic votes necessary to pass it.) Now, the 3-2 Republican-majority Board is seeking an alternate route around these roadblocks.    Next, a Notice of Proposed Rulemaking will be issued, affording the opportunity for public comment. A majority of the five-member Board will need to approve the proposed rule.