Collective Bargaining Bootcamp Under

The Trump Administration

Mekesha Montgomery

George Yund

Chip Hicks

Eric Kimbel

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Presented To Battelle Memorial Institute Labor &

Employment Conference at ORNL 2019

SOME THINGS NEVER

CHANGE:

THE NATIONAL LABOR

RELATIONS ACT

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The NLRA (or the Wagner Act)

▪ Enacted in 1935

▪ Guarantees rights of private sector

employees to form unions, collectively

bargain, and take collective action

▪ Created the National Labor Relations Board

▪ Does not apply to employees covered by

Railway Labor Act, agricultural employees,

domestic employees, supervisors, federal,

state or local government workers,

independent contractors

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NLRA Section 7

▪ Section 7 of the NLRA guarantees employees "the

right to self-organization, to form, join, or assist labor

organizations, to bargain collectively through

representatives of their own choosing, and to engage

in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection,"

as well as the right "to refrain from any or all such

activities.“

▪ Applicable also to non-union, non-supervisory

employees

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NLRA Section 8

▪ The NLRA prohibits employers from “interfering

with, restraining, or coercing” employees’

activities to (i) organize for collective bargaining

purposes, or (ii) engage in “protected concerted

activity” to improve terms and conditions of

employment

▪ Similarly, unions may not restrain or coerce

employees in the exercise of these rights

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Examples of Employer Violations

▪ Questioning employees about their union sympathies or

activities

▪ Transferring, laying off, terminating, assigning employees more

difficult work tasks, or otherwise punishing employees because

they engaged in PCA

▪ Retaliating against employees because they filed unfair labor

practice charges, or participated in an investigation conducted

by NLRB

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NLRA Section 8

▪ Requires employers and unions to “bargain

in good faith”

▪ Meet at reasonable times to attempt to reach

agreement

▪ Give notice and an opportunity to bargain before

deciding to make “unilateral” changes in working

conditions

▪ Provide relevant information on request

▪ Employers violate duty of good faith bargaining if

they engage in “Direct Dealing” with employees,

bypassing Union

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Union (and Company) Right to

Information

▪ Section 8(a)(5) of the NLRA makes it an unfair labor practice

for an employer to refuse to bargain collectively and in good

faith with the representatives of its employees

▪ This obligation to bargain in good faith requires that employers

and unions exchange relevant information when necessary to

substantiate assertions made during collective bargaining or

processing grievances

▪ This rule, however, does not require “an employer to lay open

its books at any or every union request; certain requirements

must be met”

▪ Must respond timely to requests

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Information requests

▪ Employers must supply

▪ Wages, benefit plans, grievance history,

information on other terms and conditions

▪ Need not create information requested

▪ Not supervisor salaries

▪ Not financial records or other confidential

information UNLESS you make it relevant as,

for example, by claiming an inability to pay

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Duty to Furnish Information

▪ Must be relevant

▪ Per se relevant

▪ Terms and conditions of employment or

information about bargaining unit members

▪ To process grievances

▪ For contract administration

▪ Otherwise

▪ Would be of use to Union carrying out its

statutory duties and responsibilities

▪ If not per se relevant – Union must show

relevance based on a reasonable belief

supported by objective evidence

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The Response Process

▪ Evaluate the ask

▪ What is it?

▪ Do we have it?

▪ Is it relevant?

▪ Produce what is clearly relevant

▪ Ask for more information regarding relevancy/need

where it is not clear

▪ DO NOT SIMPLY REFUSE

▪ If you don’t have it – say so

▪ BUT, raise objections and explain them

▪ Do not assume confidentiality is a valid objection

▪ Offer an accommodation

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The Response Process

▪ Put it in writing

▪ Keep a copy

▪ End the letter with putting the burden back

on the Union

▪ “We believe this satisfies our obligation…”

▪ Non-Defenses

▪ Union has access to this itself

▪ My broker has it

▪ That would take forever!

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No Direct Dealing – What about Surveys?

▪ Employers are permitted to gather information from

employees if:

▪ It is not perceived as a solicitation of grievances

▪ It’s related to management rights (i.e. scheduling)

▪ There is no indication that the conduct was intended

to or did erode the position of the bargaining agent

▪ It is totally unrelated to any ongoing or upcoming

negotiations and not an attempt to by-pass the union

▪ It isn’t intended to determine employee support for the

union

▪ It doesn’t relate to terms and conditions of

employment

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COLLECTIVE BARGAINING

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Collective Bargaining Basics

▪ Employers and unions are required to meet at reasonable times to

bargain in good faith about wages, hours, vacation time,

insurance, safety practices and other mandatory subjects of

bargaining

▪ It is an unfair labor practice for either party to refuse to bargain

collectively with the other, but parties do not have to agree!

▪ Cannot implement changes being bargained until reach “impasse”

- but impasse is difficult to achieve

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Collective Bargaining Basics

▪ If no agreement can be reached after good faith attempts,

the employer may declare impasse and implement the

last offer presented to the union

▪ If the Union disputes impasse, the Board will determine

whether true impasse was reached

▪ May be able to claim “partial impasse” - very hard!

▪ If Board finds no impasse, the employer must restore the

“status quo ante” and return to the bargaining table

▪ The parties' obligations do not end when the contract

expires - they must bargain in good faith for a successor

contract, or for the termination of the agreement, while

terms of the expired contract continue.

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What is good faith bargaining?

▪ The duty to bargain in good faith is an obligation to

participate actively in the deliberations so as to

indicate a present intention to find a basis for

agreement

▪ This implies both an open mind and a sincere desire

to reach an agreement as well as a sincere effort to

reach a common ground

▪ You can’t just go through the motions, or attempt to

handle it through an exchange of emails (unless the

union “plays”)

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Collective Bargaining

▪ Timing

▪ First Contract

▪ Successor Contracts

▪ Process

▪ Who goes first

▪ How does it work

▪ Who can attend

▪ Types

▪ Traditional

▪ Positional

▪ Interest Based

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SUBJECTS OF BARGAINING

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Subjects of Bargaining

▪ Mandatory – pertains to wages, hours, or terms and

other conditions of employment

▪ Cannot change without bargaining unless bargaining

is waived

▪ Waiver is not easy to establish

▪ Permissive – does not pertain to wages, hours, or terms

and other conditions of employment but is not otherwise

prohibited by law

▪ Cannot bargain to impasse

▪ Can stop bargaining without penalty

▪ Illegal – prohibited by the Act or other applicable law

▪ Discriminatory seniority system

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Mandatory Subjects – some

examples ▪ Wages & Benefits

▪ Cameras

▪ Smoking

▪ Parking

▪ Televisions

▪ Uniforms

▪ Hours

▪ Vacation

▪ PTO

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Permissive Subjects

▪ Definition of bargaining unit

▪ Internal union matters

▪ Wages, benefits or selection of

management employees

▪ Use of court reporter

▪ Products to be manufactured

▪ Union label

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Little-Used Opportunity To Be Creative

▪ Waiver of employee rights to make claims

outside grievance process

▪ Union response: “We can’t waive employee

rights!”

▪ Employer response: “Nonsense – what do

you think a no-strike clause is?”

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WAIVER OF EEOC AND SOME

OTHER RIGHTS

▪ In 14 Penn Plaza LLC v. Pyett, Supreme

Court held that a CBA provision that “clearly

and unmistakably required union members

to arbitrate ADEA claims” rather than

charges or lawsuits is enforceable.

▪ 556 U.S. 247 (2009).

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WAIVER OF EEOC AND SOME

OTHER RIGHTS

▪ “Clear and unmistakable” standard is high,

but can be achieved. Circuit and district

decisions explain what’s needed. See, e.g.,

Long v. Hartwig Transit, Inc., 2012 WL

6114654 (S.D. Ohio 2012).

▪ Should specifically cite statutes in CBA to

make it clear that right to be free from

discrimination is not waived – only the other

forum.

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THE NATIONAL LABOR

RELATIONS BOARD

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SOME THINGS CHANGE ALL

THE TIME …

National Labor Relations Board

▪ Appointed by the President to 5-year terms

and confirmed by the Senate

▪ Five Members

▪ Three conservative members:

▪ Marvin E. Kaplan

▪ William J. Emanuel

▪ John Ring (Chairman)

▪ Two liberal members:

▪ Lauren McFerran

▪ Vacant – (Trump inexplicably nominated Mark

Gaston Pearce 8/18 but lapsed due to failure of

confirmation then Pearce withdrew)

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General Counsel

▪ “Independent” from the Board

▪ Responsible for prosecuting ULPs and

supervising field offices of the NLRB

▪ Appointed to a 4-Year Term

▪ Peter B. Robb was sworn in as General Counsel

of the National Labor Relations Board on

November 17, 2017

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So what has (or likely will) change?

▪ Work rules, policies, handbooks and other

restrictions on employee conduct

▪ Use of employer-provided email, chat systems

▪ Micro-unit rules that make union organizing easier

▪ Joint employer standard – making one employer

responsible for employees of another

▪ Independent contractors are not employees

▪ “Quickie elections”

▪ Collective action waivers

▪ Control over the “prosecutor” (Advice Division)

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Peter Robb Issues GC Memo 18-

02 (December 1, 2017)

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Work Rules

FACT: Of the approximately 1,200 Board decisions issued on

contested charges from 2012 through 2016, almost 20% involved the

analysis of one or more workplace rules related to:

▪ Social media

▪ Email

▪ Video/audio recordings

▪ Photographs

▪ Confidentiality

▪ Non-disparagement

▪ Mandatory reporting procedures

▪ Use of logos/trademarks

▪ Media communications

▪ Required disclaimers

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Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004)

▪ Rule against “interfering with

production” at any facility or

business meeting;

▪ Whether employees would

reasonably construe that rule

to prohibit Section 7 activity;

▪ Whether the rule was

promulgated in response to

Section 7 activity;

▪ Whether the rule was applied

discriminatorily to restrict the

exercise of Section 7 rights.

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Lutheran Heritage begat Beaumont Hospital in 2016

Code of Conduct: ▪ “Conduct that impedes harmonious

interactions and relationships will not be

tolerated.”

▪ “Improper conduct includes:

Negative or disparaging comments

about the moral character or

professional capabilities of an

employee or physician made to

employees, physicians, patients, or

visitors.”

▪ What about “Do unto others?” Is that

illegal, too?

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Beaumont Hospital (con'd)

Held – Illegal because

employees could reasonably

construe the language to

prohibit Section 7 activity

(e.g. protesting supervisor’s

actions)

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The Boeing Co., 365 NLRB No. 154 (2017)

▪ Trump Board decision

▪ Workplace rule restricted the use

of cameras on the property, a

neutral rule that did not violate

Section 7 rights

▪ Boeing argued the rule was

necessary to maintain

confidentiality of classified

material

▪ The ALJ found the rule was

unlawful under Lutheran

Heritage; could be construed as

prohibiting protected activity35

The Boeing Co. (con'd)

▪ The Board disagreed and overruled Lutheran Heritage

▪ When reviewing a facially neutral rule, the Board will

evaluate:

(1) The nature and extent of the potential impact on employee

rights; and

(2) The legitimate justifications associated with the rule

▪ The Board also divided workplace rules into three

categories going forward:

(1) Lawful

(2) Subject to individualized scrutiny

(3) Unlawful

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The Boeing Co. (con'd)

▪ The Board acknowledged the no-camera rule could

potentially affect the exercise of Section 7 rights but this

impact was comparatively slight

▪ Boeing’s legitimate business justifications substantially

outweighed the potential impact on employee rights

▪ Confidentiality of proprietary information and national security

were the legitimate business justifications

▪ The Board found no-camera rules should be placed in

Category 1 because the business justifications were

common

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General Counsel Memo 18-04 (post Boeing)

CATEGORY 1 (Lawful)

▪ Rules Include:

▪ Civility Rules

▪ No-Photography and No-Recording Rules

▪ Rules Against Insubordination, Non-Cooperation, or On-

the-Job Conduct that Adversely Affects Operations

▪ Disruptive Behavior Rules

▪ Rules Protecting Confidential Information

▪ Rules Against Defamation or Misrepresentation

▪ Rules Against Using Employer Logos or Intellectual

Property

▪ Rules Requiring Authorization to Speak for the Company

▪ Rules Banning Disloyalty, Nepotism, or Self-Enrichment

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General Counsel Memo 18-04

CATEGORY 2 (Needs Scrutiny)

▪ Rules Include:

▪ Broad conflict of interest rules that do not target fraud and

self-enrichment and do not restrict membership in, or

voting for, a union

▪ Confidentiality rules encompassing “employer business,”

“employee information” (as opposed to customer or

proprietary information), or wages, terms of employment,

or working conditions

▪ Rules regarding disparagement of the employer as

opposed to rules regarding disparagement of employees

▪ Rules regulating use of the employer’s name as opposed

to logo or trademark

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General Counsel Memo 18-04

CATEGORY 2 (con'd)

▪ Rules Include:

▪ Rules restricting speaking to the media or third parties as

opposed to rules restricting speaking on the employer’s

behalf

▪ Rules banning off-duty conduct that might harm the

employer as opposed to rules banning insubordinate or

disruptive conduct at work

▪ Rules against making false statements as opposed to

rules against making defamatory statements

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General Counsel Memo 18-04

CATEGORY 3 (Unlawful)

▪ Rules Include:

▪ Confidentiality rules specifically regarding wages, benefits,

or working conditions

▪ Rules against joining outside organizations or voting on

matters concerning the employer

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Can Employers Restrict Use of

Email to Business Only?

▪ For 30 some years, the answer was “Yes”

▪ Even union organizing, protected workplace

complaints, could be banned (if rule non-

discriminatory)

▪ Register Guard – NLRB 2007

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Employer Email (con'd)

▪ In 2014, NLRB reversed precedent in Purple

Communications

▪ Company policy said its computers, email,

internet was to be used for “business

purposes only”

▪ NLRB declared the policy illegal, saying

Section 7 rights outweigh employer property

rights

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Employer Email (con'd)

▪ In 2018, NLRB signaled it is open to reverse

or modify Purple Communications

▪ In Caesars Entertainment, amicus briefs

invited – decision pending

▪ Possible NLRB could limit Purple

Communications to situations where

employees have no other way to

communicate

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Past Practice Unilateral Change

▪ Raytheon Network Centric Systems, 365 NLRB

No. 161 (2017)

▪ Overruled 2016 E.I. du Pont de Nemours

decision concerning an employer’s bargaining

obligations before it can implement a unilateral

change

▪ Employers no longer required to provide unions

with notice and an opportunity to bargain over

changes to the terms and conditions of

employment when the changes were consistent

with an employer’s past practice

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Past Practice Unilateral Change (con'd)

▪ The Raytheon decision is consistent with over 50

years of Board precedent

▪ Board held that actions do not constitute a change if

they are similar in kind and degree with an

established past practice of parallel unilateral actions

▪ This standard applies regardless of whether

(1) a collective bargaining agreement was in effect when the

past practice was created

(2) no CBA existed when the disputed actions were taken

▪ Actions consistent with an established practice do not

constitute a change requiring bargaining merely

because they may involve some degree of discretion

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Duty to Supply Information

▪ Nexstar Media Group (10/15/18) – In memo to

employees, announced benefit improvement

because it wanted to share benefits of new tax

law

▪ Union made information request for details of

how much Nexstar was saving, what other

plans it had

▪ Region referred case to Division of Advice,

and ULP dismissed as not relevant to benefits

bargaining

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Epic Systems Corp. v. Lewis

▪ In this recent Supreme Court case, the legality

of class action waivers in employment contracts

were upheld against NLRB challenges.

▪ This decision settled the long debated dispute of

whether the NLRA precluded class action

waivers.

▪ The NLRB had previously ruled that, regardless

of what employers and employees agree to,

employees should be allowed to bring claims in

class or collective actions.

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Joint Employer Status

▪ Issue is whether right to control is enough or

alleged joint employer must exercise actual

control

▪ Majority of the Board committed to engage in

rulemaking

▪ September 2018 the Board published a Notice of

Proposed Rulemaking regarding the joint

employer status

▪ Comment period ended on January 14, 2019

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Independent Contractor Standard

▪ SuperShuttle DFW, Inc.

▪ The Board overruled Obama era decision

making it much more difficult to be deemed an

employee

▪ Return to common law standard:

▪ Entrepreneurial opportunity for economic gain

▪ Level of control

▪ Method of payment

▪ Supervision

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