NLRB Finds Union Waiver in Two Recent Decisions, Including the Closely-Watched Hospital Flu Shot Case

by Labor Management Relations Practice Group on July 06, 2012

The National Labor Relations Board affirmed the 2011 administrative law judge decision dismissing the finding that the union waived its right to bargain with Virginia Mason Hospital over implementation of a policy requiring nurses to take a flu shot or wear a facemask. During the same week, the Board held an employer did not violate the National Labor Relations Act when it unilaterally implemented a new safety procedure that required employees to spend 5-10 minutes at the beginning of each shift reviewing and initialing a safety checklist. To learn more about the decisions and their potential implications for employers, please continue reading at Littler's Healthcare Employment Counsel blog.

D.C. Circuit Unties Employer's Hands After Contract Expiration

by Labor Management Relations Practice Group on June 28, 2012

By Denise Barton Ward

The yearly revisions to employers’ medical plans before open enrollment is a common practice that rarely generates thoughts beyond controlling costs. For the unionized employer with a non-union medical plan, the process is more nuanced. This is especially true when the collective bargaining agreement has expired and the parties have not reached a new agreement. In E.I. Du Pont de Nemours and Company v. NLRB, 2012 U.S. App. LEXIS 11604 (D.C. Cir. June 8, 2012), the employer was in just such a position and moved forward with changes to its medical plan post-contract expiration. In fact, the employer had made changes to its medical plan each year prior to open enrollment without bargaining and without objection from the union. The contract provided for unionized employees to participate in the plan “subject to the terms and conditions” of the plan. The plan itself contained a reservation of rights clause allowing for the changes in price or level of the plan coverage prior to annual enrollment.

As expected, the union filed an 8(a)(1) and 8(a)(5) charge, claiming the employer made a unilateral charge to the medical plan during ongoing negotiations with the union. Equally as expected, the National Labor Relations Board held the employer violated the Act. 

The D.C. Circuit, however, held the Board departed from its precedent of allowing changes in working conditions made after contract expiration when the changes were grounded in past practice. In its findings, the court rejected the Board’s argument that the past practice was only during the term of the contract and there was no past practice of changes post-contract expiration. The court also rejected the Board’s argument that the past practice arose pursuant to the management rights clause, explaining that the lawfulness of the change does not depend on the survival of a contractual waiver but on whether the change is grounded in a past practice. Quoting the Board’s own words in previous cases, the court found the “past practice is not dependent on the continued existence of the [expired] collective bargaining agreement.”   

While the court’s remand of the case back to the Board may be a victory for this employer, the Board is not bound by the court’s decision in any other cases. As a result, employers will continue to face questions regarding post-contract expiration changes to health and welfare plans and should anticipate the current Board’s analysis of such changes.

Reorganization Requires Effects Bargaining Prior to Merger and Withdrawal of Recognition

by Stephen D. Smith on February 24, 2012

By Stephen D. Smith

Face OffII.jpgAs Craig Becker’s recess appointment to the NLRB lapsed in early January of this year, the NLRB issued several decisions. Among them was a case demonstrating the importance of engaging in “effects bargaining” related to a reorganization of operations. In Naperville Jeep/Dodge, 357 NLRB No. 183, a three-member panel of the Board ruled that the company failed to engage in proper “effects” bargaining when it closed an automobile dealership employing six mechanics represented by the Machinists Union.

The employer operated two dealerships that it was required to consolidate as a result of Chrysler’s bankruptcy. The employer closed one dealership and offered the six displaced union mechanics jobs at the other dealership, where it employed 14 unrepresented mechanics. There was no dispute that the employer did not bargain over the effects of the closure of the union facility. The employer proceeded on the assumption that by merging the smaller union group into the larger nonunion group, its bargaining obligations would be extinguished.

Continue Reading

Board Gives Expansive Reading of Anti-Dual Shop Language

by Labor Management Relations Practice Group on February 24, 2012

By Erik Hult

GavelIIII.jpgEmployers should carefully consider the potential business consequences of entering into unit preservation or anti-dual shop agreements with a union. In a case decided in the final days of 2011 and at the end of Member Becker’s term, Road Sprinkler Fitters, 357 NLRB No. 176 (2011), the Board majority (Chairman Pearce and Member Becker) determined that the union had not violated the National Labor Relations Act when it entered into an “anti-dual shop” clause with the National Fire Sprinkler Association, Inc., a multiemployer association. Specifically, the multiemployer agreement included an addendum that if the employer “establish[ed] or maintain[ed] operations that are not signatory to this Agreement . . . the terms and conditions of this Agreement shall become applicable to and binding upon such operations at such time as a majority of employees of the entity designate the Union as their exclusive bargaining representative.” Road Sprinkler Fitters is an expansive new reading of unit preservation and anti-dual shop language. 

Continue Reading

ALJ Again Rules in Favor of Hospital in Closely Watched Flu Shot Case

by Labor Management Relations Practice Group on December 19, 2011

Flu shot.jpgBy Carie Torrence and Sarah Green

As reported on Littler's healthcare employer blog, the National Labor Relations Board recently reversed a 2006 administrative law judge (ALJ) decision that Virginia Mason Hospital was not required to bargain with the union over a flu prevention policy that required nurses to wear a facemask or take anti-viral medication, rejecting the argument that the policy went to the hospital’s “core purpose” of protecting its patients’ health and was narrowly tailored to achieve its purpose.  The Board remanded the case back to the ALJ for consideration of the hospital’s other defenses to its unilateral implementation of the flu policy, and the ALJ issued a new opinion (case 19-CA-30154; JD(SF)-44-11). 

Read the full entry at Littler's Healthcare Employment Counsel blog.

Unionized Hospitals Must Tread Carefully Before Implementing Communicable Disease Policies

by Labor Management Relations Practice Group on October 21, 2011

By Jennifer Mora

Thumbnail image for Flu shot.jpgRecently, in Virginia Mason Hospital, 357 NLRB No. 53, the National Labor Relations Board considered whether a Seattle hospital violated its duty to bargain under the National Labor Relations Act when it implemented a flu-prevention policy that required nurses to wear a mask if they refused to be immunized against influenza. In doing so, the Board reversed the administrative law judge’s (ALJ) holding that the hospital’s decision to implement the policy was permissible because it went to the hospital’s “core purpose” of protecting its patients’ health and was narrowly tailored to achieve its purpose. Continue reading this entry at Littler's Healthcare Employment Counsel.

Ninth Circuit: Employer in Right-to-Work State May Not Unilaterally Discontinue Dues Checkoff During Contract Hiatus

by Reid Carron on September 27, 2011

money.JPGIn Local Joint Executive Board of Las Vegas, etc. v. National Labor Relations Board (Hacienda III), No. 10-72981 (9th Cir., Sept. 13, 2011), the U.S. Court of Appeals for the Ninth Circuit resolved a 15-year-old case, after three NLRB rulings and two remands, by holding that an employer in a right-to-work state, unlike employers in states where union security clauses are lawful, may not unilaterally discontinue dues checkoff after the expiration of a collective bargaining agreement.

After a collective bargaining agreement expires, an employer generally cannot lawfully change wages, hours, working conditions, or other terms and conditions of employment unless it has either reached agreement with the union to do so or has bargained to impasse in a good faith effort to reach agreement.  Unilateral change absent agreement or impasse violates the employer’s duty to bargain in good faith under section 8(a)(5) of the National Labor Relations Act.  The NLRB held in 1962 in the Bethlehem Steel case that a dues checkoff provision (under which an employee may voluntarily authorize in writing that the employer withhold union dues from the employee’s pay) in a contract containing a union security clause is an exception to the general rule against unilateral changes.  That is, after contract expiration an employer may lawfully cease withholding dues without having bargained with the union to agreement or impasse. The NLRB’s rationale was that a dues checkoff provision is an adjunct to the union security clause.  Union security clauses, which require employees to pay union dues as a condition of employment, are authorized under section 8(a)(3) of the Act; employees can be required to pay dues only if a collective bargaining agreement containing a union security clause is in effect.  Accordingly, during a period in which no agreement is in effect, an employer cannot lawfully require payment of dues as a condition of employment.  Given its view that the dues checkoff provision was directly related to union security, the NLRB decided that no reason existed to require the employer to bargain over cessation of checkoff after contract expiration, because union security was not enforceable during that period.

Continue Reading

Generic or Brand Name Drugs? - Employers Must Bargain

by Stephen D. Smith on June 20, 2011

Health Care Cost4.JPGEmployers who provide employee health insurance containing prescription drug benefits are paying closer attention to the costs associated with these benefits. In particular, employers are exploring ways to control costs by altering the plan’s drug formulary, the part of the plan that establishes what drugs are covered and sets different cost “tiers” for various brand-name drugs and their generic equivalents. Employers faced with increasing prescription drug costs often ask insurers for less costly alternatives. When the insurance plan applies to a union-represented workforce and is incorporated into a collective bargaining agreement, this can spell trouble.

A recent opinion of the United States Court of Appeals for the D.C. Circuit is a case in point. The employer in Caterpillar Inc. v. NLRB, 2011 U.S. App. LEXIS 11163 (May 31, 2011), provided a collectively bargained prescription drug benefit to its employees under a union contract. Over the years, the details of the plan had been modified, without objection by the union.

Continue Reading

Duty to Furnish Information: NLRB General Counsel Issues Memo

by Stephen D. Smith on June 20, 2011

meeting notes.JPGMost employers with union bargaining obligations are familiar with the duty to furnish information. Unions submit information requests in a wide variety of settings, from grievance processing and arbitration, to “effects” bargaining over business reorganizations and requests made in connection with contract negotiations. The most common features of these requests are that they are time consuming and frustrating for employers.

On May 17, 2011, NLRB Acting General Counsel Lafe Solomon issued a “Guideline Memorandum” (pdf) to the agency’s Regional Offices concerning the duty to provide information in connection with bargaining. The twelve-page memorandum provides both an overview of general principles and cases applicable to “information request” cases and a glimpse into probable NLRB investigation and enforcement strategies. Of particular interest to employers will be the section discussing the duty to furnish specific information in response to claims made at the bargaining table.

Continue Reading

NMB Launches Expedited Mediation Program

by Labor Management Relations Practice Group on June 14, 2011

By Peter Petesch

national mediation board.gifIn a move consistent with organized labor’s push for an accelerated collective bargaining process for airlines and railroads, the National Mediation Board (NMB) announced the implementation of its expedited mediation project. (pdf) The new program is designed ostensibly to move the mediation process – whose purpose is to resolve collective bargaining disputes in the airline and railroad industries – along. In a press release, Larry Gibbons, NMB Director for Mediation, said the program was in response to a report (pdf) issued in 2010 by the Dunlop II Committee, a joint labor-management committee formed to examine the internal functions, policies and procedures of the NMB and make recommendations for procedural or policy changes. Gibbons explained that the report “...recommended, among other things, that case management strategies be developed to help address [mediation] disputes in a timely and methodical manner.” From this general recommendation in Dunlop II, the NMB developed protocols for expedited mediation. The initiative stops far short of recommendations principally from unions for explicit time limits on mediation. Yet, the initiative works to dispel the perception held by some that mediation is an endless process.

Continue Reading

ALJ Strikes Arbitration Agreement with Waiver of Remedies and No Specific Exception for NLRB Charges

by Denise Barton Ward on June 07, 2011

paperwork2.JPGEmployment arbitration provisions are a continually evolving area of the law, with recent cases helping to define new parameters.  There are the class action implications of AT&T Mobility v. Concepcion and now NLRB issues raised by an Administrative Law Judge’s decision in Supply Technologies, L.L.C., 2011 NLRB LEXIS 273 (May 31).  In Supply Technologies, the employer instituted an alternative dispute resolution program with a final arbitration step.  The company’s “Total Solution Management (TSM)” contained three documents: Official Rules, Agreement to Use, and Questions and Answers.  The employer terminated approximately twenty employees who failed to sign the TSM.  The Administrative Law Judge found the discharges unlawful because the TSM policy itself was unlawful.  Although the employer argued that the policy stated employees were free to “file a charge or complaint with a government agency,” the ALJ found the additional language requiring an employee who files a charge with an administrative agency to waive his or her right to remedial relief rendered that right meaningless and had a chilling effect on employees’ willingness to exercise the right.  Moreover, the ALJ found the three documents comprising the TSM were entirely inconsistent in whether this right existed at all; the ALJ pointed to other provisions of the program that stated “the only claims” employees could bring outside of the TSM were in regards to criminal claims and claims for workers’ compensation or unemployment benefits and that all other claims “must be brought under the TSM program.”  And, the ALJ noted, the program had no express exception for filing a claim with a government agency, such as the Board, in these additional provisions.  The ALJ therefore found the policies as a whole “rather ambiguous” and “rife with contradictions and inconsistencies regarding” the rights of employees.  As employers take a new look at their arbitration provisions for compliance with other employment areas, such as class action waivers, it may be a good time to ensure the policies pass scrutiny on NLRB issues as well.

This entry was written by Denise Barton Ward.

Board Changes Course: Allows Union Requirement for Annual Renewal of Beck Objections

by Denise Barton Ward on June 07, 2011

Just last year the Board handed down a stinging decision to unions in Machinists Local Lodge 2777, 355 NLRB No. 174 (2010), wherein it found a rule requiring Beck objectors to renew their objections annually violated the duty of fair representation, because of the burden on objectors and insufficient rationale for the burden provided by the union.  Taking another look at the issue, the Board used the same analysis, but this time found the requirement to renew annually is lawful.  In International Union, United Automobile, Aerospace & Agricultural Implement Workers of America Local Union # 376 (Colt’s Manufacturing Company, Inc. et al.), 356 NLRB No. 164 (2011), the Board found an annual requirement to renew Beck objections was not burdensome because the potential objectors received at least four notices of the requirement over the course of a year, an additional notice should the objector fail to renew on time, and, in a notable difference from the 2010 Machinists case, were not subject to a fixed window period for objections.  Therefore, an objector under the policy in Colt’s Manufacturing would only be required to pay one month’s dues while he or she renewed the objection, which was in stark contrast to the system in Machinists in which an objector who failed to renew a objection during the window period was required to pay full dues for an additional eleven months.  Having found the burden of annual renewal was de minimis, the Board in Colt’s Manufacturing did not reach the issue of the union’s justification for the requirement.

Agreement Requiring Employer to Cease Doing Business with Certain Subcontractors Unlawful Under the NLRA

by Jeffrey M. Place on May 18, 2011

Thumbnail image for Contract.jpgIn Teamsters Local 251, 356 NLRB No. 135 (2011), the Board recorded a welcome win for employers, holding that the union violated the National Labor Relations Act when it demanded that a construction contractor comply with an agreement not to use the services of two nonunion trucking companies to haul construction materials to its jobsite, and when it engaged in a strike against the contractor to enforce that agreement.

The primary employer in the case, a signatory to a multi-employer union agreement, is a heavy highway construction contractor that employs ten Teamsters-represented drivers to deliver sand, stone, gravel, and asphalt to construction job sites.  When the employer’s workload exceeds the capacity of its available trucks and drivers, it contracts out work to independent trucking operations, including nonunion trucking companies.  In 1999, the union threatened to call a strike among the represented drivers unless the employer would agree to stop sending work to the nonunion businesses.  To avoid a strike, the employer entered into a written agreement with the union that the services of the nonunion companies would not be used.

Continue Reading

Trio of Board Cases Continue Recent Trends

by Tedd J. Kochman on April 25, 2011

Thumbnail image for NLRB seal.gifSeveral recent cases issued by the National Labor Relations Board continue to reflect a consistent majority view with respect to representation cases and unfair labor practice matters.  In Fiskardo Estiatorio, Inc. d/b/a Thalassa Restaurant, 356 NLRB No. 129 (March 31, 2011), the Board held that the employer, a New York City restaurant, had engaged in a host of Section 8(a)(1) violations of the NLRA, including interrogating, threatening and attempting to arrest an employee because he and a group of 20 to 25 nonemployees entered the restaurant during evening dining hours to deliver a letter protesting the employer’s alleged labor law violations. The employer’s wait staff had been expressing dissatisfaction over their belief that they were not getting all the tips left by the customers.  Employees advised restaurant management of the issues, and the wait staff consulted with the Restaurant Opportunity Center, an advocacy group, in New York City that organizes restaurant workers for workplace justice campaigns. 

Although the legal standard involving Section 8(a)(1) allegations was not in dispute, there was a significant factual disagreement.  When the dust settled, the administrative law judge and the Board majority accepted the employees’ version of events.  The majority stated that there was no evidence that the group disturbed the handful of patrons present, blocked the ingress or egress of any individual, was violent or caused damage, or prevented any employee from performing his work. Thus, the activity remained protected at all times.  This case underscores the importance of the credibility of witnesses and the cohesion of each witness’ version of the events.

Continue Reading

Court Finds No Waiver of Right to Litigate in General CBA Clause

by Noah Lipschultz on April 01, 2011

In Mathews v. Denver Newspaper Agency, Case No. 09-1233 (10th Cir. March 16, 2011), the Tenth Circuit Court of Appeals held that an arbitration decision did not preclude plaintiff from subsequently litigating discrimination claims in court.  The plaintiff was demoted after a complaint of harassment was made against him, and he subsequently challenged his demotion under his collective bargaining agreement’s non-discrimination clause.  The CBA’s non-discrimination clause also referred to state and federal laws prohibiting such discrimination.  The CBA’s dispute resolution procedure provided that disputes under the CBA, “including all disputes involving discharge or discipline . . . shall be submitted to final and binding arbitration.”  Notwithstanding that language, the parties agreed that employees could opt to litigate disputes in a judicial forum, and plaintiff Mathews had, in fact, previously done so. 

Continue Reading

NFL Owners and Players Move Contract Dispute to the Legal Trenches

by John D. Doran on March 15, 2011

football.jpgThe collective bargaining agreement between the National Football League Players Association (NFLPA) and the NFL owners had been briefly extended to 11:59 pm on Friday, March 11 while the parties engaged in negotiations with the assistance of the Federal Mediation and Conciliation Service in Washington, DC. Much to the chagrin of NFL fans everywhere, the players and owners could not reach agreement. While certainly not a substitute for NFL action, the legal maneuvering by the NFLPA will give traditional labor law followers something to focus on other than the prospect of no fantasy football come September.

NFL owners had made it clear for months that they intended to lock out the players if a new CBA was not reached. In an effort to thwart the lockout, the NFLPA disclaimed interest in continuing to represent the players for purposes of collective bargaining. (While the NFLPA’s move has been widely reported as a “decertification,” it is technically a disclaimer of interest.) The players took this action as a predicate to their next legal maneuver – the filing of an anti-trust action in federal court in Minnesota. The players’ theory is that because they are no longer represented by a union, the NFL owners cannot act in concert in dealing with the players. By acting in concert, the players argue, the NFL owners are acting as an illegal trust – a modern day Standard Oil – to control costs and maximize profits. The players bringing the lawsuit, including quarterbacks Tom Brady, Peyton Manning, and Drew Brees, are seeking an injunction prohibiting the lockout and requiring the owners to resume all league business (off-season workouts, free agent signings, etc.)

Continue Reading

NLRB Encourages Additional Remedies in First Contract Bargaining Cases

by William J. Emanuel on February 22, 2011

failed agreement2.JPGIn a memorandum (pdf) sent to all NLRB regional offices, Acting General Counsel Lafe Solomon not only encourages the use of additional remedies in certain cases involving first-contract bargaining, but permits these offices to bypass the Division of Advice in doing so. Specifically, the memorandum directs regional officers to use their discretion in seeking notice-reading, certification-year-extension, and bargaining-schedule remedies in specific instances outlined in the memorandum involving evidence of unfair labor practices. In addition, the memo encourages regions to seek reimbursement of bargaining and/or litigation expenses, but directs them to first submit these cases to the Division of Advice in order to “assure consistent analysis and application” of these remedies, since the agency claims it has not had much experience involving such remedies for initial contract bargaining cases.

According to the memorandum, regions are authorized to seek the remedy of notice reading, which requires a management official or NLRB agent to read the remedial notice to assembled employees, without submitting the case to Advice when “the employer’s unlawful contact at or away from the table had the effect of undermining union support among employees.” Such instances include:

Continue Reading

Airport Security Screeners Granted Limited Collective Bargaining Rights

by Labor Management Relations Practice Group on February 08, 2011

airport security screener2.JPGThe U.S. Transportation Security Administration (TSA) has given airport security screeners limited collective bargaining rights. In his determination (pdf) conferring such rights, TSA Administrator John Pistole provides a collective bargaining framework that “retains the capability and flexibility necessary to respond to evolving threats, and continue improving employee engagement, performance and professional development.” In November 2010, the Federal Labor Relations Authority (FLRA) issued a decision that permitted Transportation Security Officers (TSOs) to vote for union representation, but did not grant the potential union representative the power to bargain collectively with the agency.

According to a fact sheet, more than 13,000 TSOs are paying dues to one or more unions that provide personal rather than collective representation. Further, these unions are not permitted to bargain on behalf of TSA employees. Pistole’s 21-page determination provides for collective bargaining at the national level on non-security employment issues only. Such topics include shift and annual leave bids (excluding shift start times and types of shifts, number of shifts, days off, and guarantee of consecutive weeks); transfers; the awards and recognition process; shift trade policy; process for work status change from full time to part time and vice versa; uniforms; selection process for special assignments; and parking subsidies. The determination prohibits local-level bargaining at individual airports, as well as bargaining on security-related topics such as security policies; procedures or the deployment of security personnel or equipment; pay, pensions and any form of compensation; proficiency testing; job descriptions and qualifications; fitness for duty standards; performance standards and staffing; numbers and types of employees; and disciplinary standards. In addition, TSOs have no right to strike or engage in work slowdowns.

If a majority of TSOs vote in favor of unionization, they will retain the option of becoming members and/or paying union dues. The first FLRA-conducted election – which could affect close to 50,000 airport screeners – is slated to occur this Spring. The two unions that will appear on the ballot are the American Federation of Government Employees (AFGE) and the National Treasury Employees Union (NTEU).

Photo credit: leezsnow

Senate Prevents Advancement of Public Safety Collective Bargaining Bill

by Ilyse Schuman on December 08, 2010

rejected3.JPGAs expected, the Senate defeated a motion to advance the Public Safety Employer-Employee Cooperation Act of 2010 (PSEECA) (S. 3991) on Wednesday by a vote of 55 to 43, despite a last-ditch attempt to move the measure before the new Congress takes over in January. The PSEECA, which was reintroduced last week, would have provided firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them; establish minimum standards for collective bargaining rights for public safety officers and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. The failure to muster the 60 votes needed to overcome a filibuster means that this measure has little chance of becoming law in the foreseeable future.

Photo credit: MBPHOTO, INC.

Reid Reintroduced Public Sector Collective Bargaining Bill

by Ilyse Schuman on December 03, 2010

emt2.JPGSen. Harry Reid (D-NV) this week reintroduced the Public Safety Employer-Employee Cooperation Act of 2010 (PSEECA) (S. 3991), legislation that would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them. Additionally, the measure would establish minimum standards for collective bargaining rights for public safety officers and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. Continue reading this entry at Littler's Washington DC Employment Law Update.

Photo credit: MargoJH

Wisconsin "Captive-Audience" Meeting Ban Struck Down

by Labor Management Relations Practice Group on November 16, 2010

MeetingFor over 60 years, employers have had a federally protected right under the National Labor Relations Act (NLRA) to hold paid, mandatory meetings with employees to discuss various issues related to unions and unionization.  These meetings, often referred to by unions as “captive-audience” talks, have historically been used by employers to explain to new hires and other employees the tactics unions use to collect union authorization cards, the legal rights employees have when asked to sign those cards, and the merits of a union-free workplace.  Union employers use these meetings to provide updates on the status of collective bargaining, explain the employer’s contract proposals, and inform employees of their rights and responsibilities in the event of a strike.

On May 12, 2010, Wisconsin became the second state in the nation (Oregon was the first earlier this year) to pass a law designed to strip employers of their right to hold “captive-audience” talks with their employees.  The Wisconsin Fair Employment Act (WFEA) was amended to prohibit employers from discriminating against employees who refuse to attend “employer-sponsored meetings” or “participate in any communication with the employer or with an agent, representative, or designee of the employer” where the “primary purpose” of the meeting or communication was to express the employer’s “opinion” about an employee’s decision to join or support a union.

Continue Reading

FLRA Grants TSA Employees Right to Elect Union Representation But Not to Collectively Bargain

by Jay Sumner on November 16, 2010

FLRA.pngIn a bizarre and convoluted decision (pdf) issued by the Federal Labor Relations Authority (FLRA), Transportation Security Administration (TSA) employees will be permitted to vote for union representation, even though the union, if elected, will not have the power to bargain collectively with the agency. The FLRA’s move will, in theory, allow a union to be in place should Congress or the TSA permit officers to one day engage in collective bargaining. Although this decision will impact TSA employees only, it is further evidence of the administration’s overall concerted effort to advance union interests through administrative actions. Moreover, as discussed in a well-reasoned dissent, the FLRA’s logic in this decision is deeply flawed.

Enacted in 2001, the Aviation and Transportation Security Act (ATSA) provides that the Under Secretary of Transportation for Security has the power to, among other things, determine the compensation, terms and conditions of employment for employees who carry out security screening functions. Accordingly, in a 2003 memorandum, the Under Secretary declared that TSA officers, “in light of their critical national security responsibilities, shall not, as a term or condition of their employment, be entitled to engage in collective bargaining or be represented for the purpose of engaging in such bargaining by any representative or organization.”

Continue Reading

When is a Merger Not a Merger? When the Board Says So

by Labor Management Relations Practice Group on November 04, 2010

The NLRB majority recently held that a smaller bargaining unit continued to exist after its facility was closed and the employees were consolidated with a larger unit of unrepresented employees in a different location.  The question in ADT Security Services, Inc., 355 NLRB No. 223 (Sept. 30, 2010), centered on whether an existing bargaining unit remains appropriate after “changed circumstances,” where a facility closure resulted in the represented employees’ reassignment and relocation.  Over an emphatic dissent, the Board’s two-member majority affirmed the administrative law judge’s decision that the employer unlawfully withdrew recognition after the facility closure and merger, because the bargaining unit employees continued to perform the same work in the same region. 

Continue Reading

Decision Versus Effects Bargaining Obligations: the Board Draws a Distinction

by Labor Management Relations Practice Group on November 01, 2010

There is a little bit for everybody in the NLRB’s decision in McGraw Hill Broadcasting Company, Inc., 355 NLRB No. 213 (2010).  The question was whether McGraw Hill had an obligation to bargain over the decision to lay off three part-time employees, and the effects of that decision, despite a contract provision addressing layoffs.  The Board answered, “no,” with respect to decision bargaining, but “yes,” with respect to effects bargaining.

McGraw Hill ran a television station in San Diego, California.  In December 2007, the company cancelled a Sunday morning newscast because of low ratings.  This resulted in reduced hours for some full-time employees.  The contract with the union required that the hours of part timers be limited to a specific percentage of full-time hours.  The reduction in full-time hours negatively impacted this percentage, and the company decided that it needed to lay off three part timers in order to comply with the contract.

Continue Reading

Employer Can't Establish Impasse Where Union Indicates Further Room to Negotiate

by Noah Lipschultz on October 26, 2010

In Laurel Bay Health & Rehabilitation, a three-member panel of the NLRB re-affirmed a 2008 ruling in the same case after the initial decision was procedurally invalidated by the Supreme Court’s ruling, in New Process Steel v. NLRB, that at least 3 members of the NLRB were required to issue a valid decision under the NLRA. The original decision in Laurel Bay was issued by only two Board members because of several vacancies at the Board at the time the case was initially considered.

The original Board decision in Laurel Bay held that an employer violated its duty to bargain in good faith under Section 8(a)(5) of the NLRA by prematurely declaring impasse and making unilateral changes to employees’ terms and conditions of employment.  The employer and union had conducted eight bargaining sessions over a six-month period of time in which benefit fund contribution rates were a primary, contentious issue.  The parties maintained their respective bargaining positions without any change for the first five sessions, and the union modified its offer in each of the last three sessions.  The employer made a “final” offer at the last negotiating session and declared an impasse.  At that same session, the union indicated further movement on the issue, requested an additional bargaining session, and advised that it would have a counterproposal for the employer.  Before any further sessions occurred, and before the union made any counterproposal, the employer made unilateral changes to employees’ terms and conditions of employment.

Continue Reading

Early Union Information Request Deemed Relevant

by John D. Doran on October 20, 2010

In a recent case, the Board confirmed the maxim that if you make a factual assertion during negotiations, a union has the right to information to determine the validity of that assertion. In Kraft Foods, 355 NLRB No. 156 (2010), the Board determined it was an unfair labor practice for the employer to refuse to provide information regarding benefit plans in effect at other facilities. The Board's rationale was grounded on the fact that in years past, the employer had compared the benefits and compensation available at the facility in question to other facilities it owned. Therefore, the Board concluded, the employer made this information relevant.

Continue Reading

Free Parking for Union Business Agents Deemed Mandatory Subject of Bargaining

by Reid Carron on October 08, 2010

An employer whose employees are represented by a union violates section 8(a)(5) of the National Labor Relations Act if it “refuse[s] to bargain collectively” with the union.  Section 8(d) of the Act defines “to bargain collectively” as “the performance of the mutual obligation of the employer and the [union] to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . .”  Cases decided under these sections of the Act make clear that an employer must bargain with regard to pay and benefits, hours of work and overtime, seniority, disciplinary procedures, grievance procedures, job posting and bidding procedures, and the like.  Equally clear, but perhaps less obvious, is that an employer must also bargain over union security provisions, such as union-shop and dues-checkoff clauses; such provisions are encompassed within the phrase “conditions of employment” in section 8(d) of the Act.  Still less obvious, but important for employers to remember, is that bargaining unit employees’ access to the union agents and officials who represent them is also encompassed within the phrase “conditions of employment” and is therefore also a mandatory subject of bargaining.  The National Labor Relations Board recently reaffirmed this last point in its decision in Oaktree Capital Management (Turtle Bay Resorts), 355 NLRB No. 207 (September 30, 2010) (pdf).

Continue Reading

Retiree Health Insurance Obligation Survives CBA Expiration

by Jeffrey M. Place on September 20, 2010

In a decision that highlights the need for caution and foresight when drafting provisions of a collective bargaining agreement, the United States Court of Appeals for the Ninth Circuit ruled this week that an employer violated federal labor law when it stopped providing premium-free health insurance coverage to its retirees between the ages of 55 and 65, even though the company first bargained for and obtained language in a new collective bargaining agreement that expressly allowed the company to begin requiring retirees to pay a portion of the cost for their health insurance coverage.  In Alday v. Raytheon Co., Case Nos. 08-16984 and 08-16985 (9th Cir. 2010) (pdf), the company had agreed in successive labor agreements entered into from 1990 through 1999 to provide premium-free health insurance coverage to qualified retirees and their spouses and dependents “until [the retiree] attained the age of 65 years.”  In 2003, the company bargained for new language in its collective bargaining agreement, specifying that the company could require retirees to pay a portion of their health insurance premium costs.  In 2004, the company began charging covered retirees a portion of the health insurance premium associated with their coverage.

A group of employees who had retired during the terms of the 1990 through 1999 collective bargaining agreements sued the company, asserting that they had a vested right to continue receiving cost-free health insurance coverage under the expired labor agreements.  The Ninth Circuit agreed.  The court conceded that obligations under a labor agreement ordinarily cease with the expiration of the agreement, but noted that rights that have accrued or vested under the agreement will survive its expiration.  The court then focused on the contract language in question.  By the terms of the agreements, the company had agreed to provide cost-free coverage to qualified retirees “until the retiree attains age 65.”  The language did not on its face indicate that the obligation would only survive for the life of the agreement.  Rather, the only time limitation on the contractual obligation was that associated with the retiree turning 65.  The court contrasted this language with contracts providing certain benefits to employees or retirees “for the life of the labor agreement.”

Continue Reading

NLRB Declines to Decide Whether Dues Checkoff Can Be Unilaterally Ended By Employer After Contract Expires in Right-to-Work States

by Arturo Ross on September 10, 2010

In Hacienda Resort Hotel and Casino, the NLRB found itself in a 2-2 “deadlock” and opted to dismiss, rather than clarify, whether the Hacienda Resort Hotel and Casino lawfully ended the union dues checkoff after the parties’ contract had expired.  Dues checkoff is the automatic deduction of union dues from employees’ paychecks.  This case has a 15-year history  that  included two trips to the Ninth Circuit Court of Appeals where the NLRB was twice directed to address the key question of whether union dues checkoff is covered by the Supreme Court’s “unilateral-change” doctrine in NLRB v. Katz, 369 U.S. 736 (1962) and thereby a mandatory subject of collective bargaining.  The central issue in Hacienda is whether employers in “right-to-work” states – in which employees cannot be required to join or pay dues or fees to a union, with some exceptions – may unilaterally stop union dues checkoff after a contract expires or whether the decision is a mandatory subject of bargaining.  If the NLRB had determined that dues checkoff was a mandatory subject, then employers in right-to-work states could not unilaterally end dues checkoff.  But the NLRB’s decision on August 27, 2010 avoided the right-to-work question, simply noting existing precedent, and held that dues checkoff is a permissive subject of bargaining.

Continue Reading