NLRA Developments: Case Studies and Practical Guidance Tim K. Garrett Bass, Berry & Sims, PLC 615-742-6270 tgarrett@bassberry.com OVERVIEW National Labor Relations Act (NLRA) Applies to non-union employers as well Section 7 protected concerted activity National Labor Relations Board (NLRB) 5 Members - Political appointments Mark Gaston Pearce (D) term expires 2018 Lauren McFerran (D) term expires 2019 Chairman Miscimarra (R) term expires December 2017 John Ring rumored to be at top of short list Marvin Kaplan (R) recently nominated and confirmed William Emanual (R) nominated, but confirmation delayed General Counsel Richard Griffin (D) term expires (October 31, 2017) Did not resign upon Trump s election Memoranda on misclassification and permanent replacements Peter Robb Vermont lawyer - rumored to be named as replacement Agenda Items United States Supreme Court Class action waivers in arbitration agreements Split among Circuit Courts D.R. Horton 5 th Circuit disagreed with NLRB Split between DOJ and NLRB Oral argument in October Speculation that Supreme Court will hear: Joint employment issue in Browning-Ferris appeal Mandatory union fees for public sector workers 1
Agenda Items (cont d) Micro-Unit Specialty Healthcare Boost to union organizing Union essentially picks its desired unit Most appeals of micro-units have failed Supreme Court refused to review Macy s challenge Rhino Northwest LLC v. NLRB most recent Unit of riggers in union of theatrical workers Volkswagen in midst of appeal on this issue Unit there composed of maintenance workers Separate from production employees in plant Agenda Items (cont d) Quickie election rules Also big boost to union organizing Will new NLRB change rules back Pending Senate bill for that purpose Will NLRB continue its activism? Handbook/Policy scrutiny Graduate Students Board rules they are employees who can unionize Expect this to return to prior precedent Rule-making or Case law? Weingarten Rights NLRB v. J. Weingarten, Inc. (1975) Union employee has right to ask for union representation in meeting that might result in discipline Was expanded briefly to non-union setting by Clinton Board Case Study Hospital required by state law to create peer review Peer review committee required to investigate alleged violations of standard of care Letters sent to two nurses to appear before committee Letter clarifies they can appear, if they choose, or submit written statement Both nurses appear for hearing and ask for union representation Hospital refuses and proceeds with hearings with nurses present Union files charges 2
Weingarten Rights (cont d) Who prevails? Before Administrative Law Judge? Before NLRB? Before D.C. Court of Appeals? Mid-west Division-MMC LLC v. NLRB (August 2017) Micro-Units Retail store -- 11 departments on multiple floors One department cosmetics and fragrances has 41 employees files petition for unionization Union claims that an appropriate unit can contain only the employees in that department Retail Store objects Board orders election Specialty Healthcare precedent Store could not show overwhelming community of interest required store-wide unit Store loses election and refuses to bargain Who wins before 5 th Circuit Court of Appeals (i.e., same court that disagreed with NLRB on class waivers)? Macy s v. NLRB (2016) Also Rhino Northwest case (riggers only in a theatrical workers union) Offensive Speech Employees at tire manufacturer on strike One picketer yells racist insults at busload of African-American replacements References to watermelon and fried chicken After strike, company refuses to reinstate picketer Union files grievance claims that the racist comments were protected since during a strike and addressed at replacements Who wins before Arbitrator? Before NLRB? Before 8 th Circuit? Cooper Tire & Rubber Co. v. NLRB (August 2017) See blistering dissent What to make of this ruling in this era? Castleberry v. STI Group (3 rd Circuit August 2017) Single racial slur may be sufficient to establish harassment 3
Offensive Speech (cont d) FaceBook post Calling Manager Nasty M***ER F***ER** (among other expletives) Was in context of union campaign Ended with Vote Yes urgings Company investigated terminated employee NLRB found Employer violated NLRA Conduct was protected Company (Pier Sixty) filed exceptions Result? Offensive Speech (cont d) Second Circuit affirmed NLRB Were vulgar attacks but in context of union campaign and in midst of workplace concerns Company tolerated widespread profanity among workforce Online communication not in immediate presence of coworkers or patrons Not face-to-face in workplace But see Harbor Rail Services, Inc. expletives lost protected status not in midst of union campaign or over workplace mistreatment employer did not tolerate profanity directed at others Misconduct Employer suspends striking employee for following actions directed at female replacement worker Grabbing crotch Making mean, hateful gesture while yelling scab Hitting car mirror of employee as she left work NLRB conduct totally uncalled for, and very unpleasant but still protected Who wins before DC Circuit? Consolidated Communications, Inc. v. NLRB (DC Circuit Sept. 2016) But read concurring opinion 4
Misconduct (cont d) Restaurant in labor dispute over sick leave policies Employees pass out leaflets with sandwiches side-byside in picture with heading Can t Tell the Difference? One sandwich made by healthy worker One sandwich made by sick worker who could not afford to call out because no sick leave Company fired the employees involved in flier campaign Who won before NLRB? Who won before 8 th Circuit? MikLin Enterprises, Inc. v. NLRB (July 2017) Quick Hits Workplace recording bans Chilling effect on Section 7 rights Whole Foods Market T-Mobile But some good news before 5 th Circuit Rules encouraging positive work environment, prohibiting arguing, fighting and failing to treat others with respect, and prohibiting access to electronic information by non-approved persons Upheld as lawful rules Quick Hits (cont d) Former employee who filed FLSA action banned by employer from premises NLRB determined that the ban violated NLRA Filing FLSA class action was protected concerted activity MEI-GSR Holdings, LLC (2017) Non-compete for new employees a mandatory subject of bargaining - Minteq Int l Inc. v. NLRB (D.C. Circuit May 2017) Must bargain over non-compete not a work rule for which Company retained right to adopt Aftermath of Top Chef Acquittals 5