In an effort to save pension plans from insolvency, the U.S. House of Representatives has passed the Rehabilitation for Multiemployer Pensions Act of 2019 (H.R. 397).

The Act would allow the federal government to make grants and loans to multiemployer pension plans that are insolvent or facing insolvency. To accomplish its purpose, the Act proposes to establish the Pension Rehabilitation Administration, an agency within the Department of Treasury that would be authorized to issue bonds to finance loans to the insolvent pension plans. The Congressional Budget Office estimates that if H.R. 397 becomes law, the Act would cost $48.5 billion in the next 10 years. A similar version has been introduced in the Senate, but that bill has not progressed beyond introduction.

Approximately 10 million people participate in multiemployer pension funds. Between 10% and 15% of multiemployer pension fund participants are in funds that are projected to become insolvent within the next 20 years, according to the Congressional Research Service. Supporters of the Act consider it necessary to prevent a loss of benefits to retirees. Opponents believe the Act is a waste of money because, although it may temporarily infuse money into struggling pension funds, it does not include provisions requiring the structural changes necessary to solve the problems that led to insolvency in the first place.

Please contact a Jackson Lewis attorney with any questions about the bill.

 

 

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.

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.

The National Labor Relations Board has announced that, in light of the partial government shutdown, the public may submit comments on the proposed joint-employer rulemaking by email to Regulations@nlrb.gov. Comments also may be submitted by mail, electronically through the NLRB’s website, or by hand-delivery. The deadline to submit comments in any form remains on or before January 28, 2019, and any reply to the public comments must be received by the NLRB on or before February 11, 2019.

Continue Reading NLRB Allows Email Submission of Public Comments to Proposed Joint-Employer Rulemaking

The National Labor Relations Board’s (NLRB) General Counsel (GC) has issued an Advice Memorandum on whether an unfair labor practice charge alleging four employer rules violated the National Labor Relations Act (NLRA) has merit. The July 31, 2018 Memorandum, released on March 14, 2019, concluded that the employer’s dress-code, confidential-information, and media-relations rules were lawful, but its cell-phone rule was unlawful. Accordingly, the GC instructed the Regional Director to dismiss the unfair labor practice allegations against the lawful rules and to issue a complaint regarding the employer’s cell-phone rule. ADT, LLC, Case 21-CA-209339).

Continue Reading Labor Board General Counsel Clarifies Lawfulness of Certain Work Rules

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.

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

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.

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

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).

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

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.

Continue Reading NLRB: Employer Lawfully Took Control of Investigatory Interview

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.

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