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Gavel By: Christopher Lowe, Robert T. Szyba, Kaitlyn F. Whiteside

Seyfarth Synopsis: The New Jersey Appellate Division reinstated plaintiff’s state law discrimination and retaliation claims, finding the claims were not pre-empted by Section 301 of the LMRA.

In a published opinion issued on May 9, 2017, the three-judge panel of the New Jersey Appellate Division held that a union member’s Law Against Discrimination (“LAD”) and Workers’ Compensation Law (“WCL”) claims were not preempted by Section 301 of the Labor Management and Relations Act (“LMRA”), despite the presence of an applicable collective bargaining agreement (“CBA”) and potential CBA-based defenses available to the employer.

The plaintiff was employed as a commercial truck driver, and was a member of Teamsters Local Union No. 813.  Following a workplace injury, he was cleared for light duty work, so long as it did not involve commercial driving. The plaintiff then filed a workers’ compensation claim with the New Jersey Department of Labor and Workforce Development, Division of Workers’ Compensation.

Three months after filing the workers’ compensation claim, the company asked plaintiff to leave work, and by letter to the union, indicated that plaintiff would need to be recertified for duty as required by Department of Transportation (“DOT”) regulations before returning to work.  The company scheduled an independent medical examination, but the plaintiff declined to undergo the exam, and therefore, was not returned to work.

The union filed a grievance challenging the company’s failure to reinstate the plaintiff.  The grievance proceeded to arbitration, and was denied by the arbitrator who concluded that reinstatement would require examination and recertification pursuant to the DOT regulations.

The plaintiff then sued in New Jersey Superior Court alleging unlawful discrimination under the LAD and retaliation under the WCL. Concluding that the claims were pre-empted, the trial judge dismissed the complaint for lack of subject matter jurisdiction.  The plaintiff appealed.

The question before the Appellate Division was whether the trial judge correctly concluded that the LAD and WCL claims were pre-empted under Section 301 of the LMRA, which pre-empts claims that require an interpretation of a collective bargaining agreement.

The court first looked to the elements of the plaintiff’s claim that the company retaliated against him based on his workers’ compensation claim, which required showing that (i) he made, or attempted to make, a claim for workers’ compensation, and (ii) he was discharged for making that claim.

According to the court, under U.S. Supreme Court precedent in Lingle v. Norge Div. of Magic Chef, 486 U.S. 399 (1988), each of these is a “purely factual inquiry,” and therefore, requires no interpretation of the CBA.  Plus, plaintiff did not make any mention of any provision of the CBA in his complaint.  So, his WCL claim was not pre-empted under Section 301.

The court then turned to the LAD claim, which proved to be a more difficult question.  To establish a prima facie LAD claim, the plaintiff had to demonstrate (i) he was disabled; (ii) he was objectively qualified for his former position; (ii) he was terminated; and (iv) the company sought a replacement.  Although the court determined that each of these also presented a “purely factual inquiry,” the court recognized that the company may have a CBA-based defense based the CBA’s requirement that employees promptly comply with DOT physicals. Further, whether the plaintiff was “objectively qualified” for the position potentially implicated the CBA.

Ultimately, however, the appellate court determined that neither the requirement that the plaintiff was objectively qualified nor the company’s potential defenses required an interpretation of the CBA that would preempt the claim.  As noted by the New Jersey Supreme Court in Puglia v. Elk Pipeline, Inc., 226 N.J. 258, 279 (2016), “… a CBA-based defense is ordinarily insufficient to preempt an independent state-law action.”

Further, the CBA was not the only source, or even the primary source of the plaintiff’s duty to recertify.  Instead, it was DOT regulations that set forth the requirement and “To the extent an interpretation of them is required, federal law [and not the CBA] must be applied.”

Looking forward, unionized employers in New Jersey who are defending against claims under state law thus face additional hurdles stemming from decisions like Hejda v. Bell Container Corporation. For example, a Section 301 claim, which is a claim under a federal statute, could be removable to federal court.  Without the Section 301 claim, a defendant thus loses a potential basis for removal.  Additionally, where CBAs otherwise provide an administrative process that must be utilized before a Section 301 claim is filed, employers may lose the ability to enforce the administrative remedies provisions, or otherwise have a lawsuit dismissed if the administrative remedies were not exhausted. Last, unionized employees have a greater ability to circumvent Section 301’s limitation to contract-based remedies, and instead seek the full panoply of tort-based remedies that the LAD affords plaintiffs. Accordingly, the dynamics for any employer with an organized workforce that is defending a claim under New Jersey state law have shifted further in the direction of state-law protections, and away from the uniformity and precedent of the LMRA.

Hejda v. Bell Container Corporation, while not a sea change in the law, is representative of the both the trend in New Jersey of courts declining to find Section 301 pre-emption, as well as the courts’ interpretation of the LAD as a wide-reaching, liberally-construed source of employee protections.

 

NLRB (Logo)By: Glenn Smith, Esq.  & Kaitlyn F. Whiteside, Esq.

Seyfarth Synopsis: In a unanimous decision, a three-member panel of the NLRB found that a cab company violated the NLRA by changing the length of the waiting period for employee health insurance from one year to sixty days.

On May 16, 2017, Chairman Miscimarra, Member Pearce, and Member McFerran upheld an Administrative Law Judge’s determination that Western Cab Company violated Section 8(a)(5) of the NLRA by failing to give notice and an opportunity to bargain to the United Steelworkers during its 2014 implementation of the Patient Protection and Affordable Care Act (“ACA”).

According to the Board, because the ACA only prohibits waiting periods for employee health insurance of longer than ninety days, the employer had discretion over whether to reduce its one-year waiting period to “a 60-day waiting period….a 30- or 90-day waiting period, or even no waiting period at all.” Therefore, the employer owed the Union notice and an opportunity to bargain over the waiting period and any other aspects of the law that gave the employer discretion in compliance, such as the notice and enrollment and even the overall type of health insurance.

The reality for employers, which was not discussed by the Board, is that quite often employers are forced to attempt to make significant changes very quickly in order to comply with a newly effective law. According to the Board, these changes must be made while also navigating the legal obligation to provide notice and an opportunity to bargain to the Union over the implementation.  This obligation requires that employers have a robust and sophisticated understanding of the requirements of the law, and those aspects that may be discretionary, with enough advance time to allow for notice and bargaining with the Union.

Here, Western Cab received notice from its insurance provider in December 2013 that as of January, the ACA would require a significant shortening of Western Cab’s current waiting period, which at the time was one year. According to testimony before the ALJ, it was the insurance provider that mistakenly indicated that the waiting period under the ACA had to be sixty days.  As a result, Western Cab may not have even been aware when it implemented the sixty-day rule that it had made a discretionary decision.

Although he joined the majority, Chairman Miscimarra took the opportunity in a footnote to re-emphasize that “employers’ compliance with the NLRA should not frustrate their compliance with the complex array of non-NLRA legal obligations that confront them.” Further, in his view, the question is not simply whether the employer had any discretion in implementing the law.  Rather, the Chairman would focus on “whether the actions are similar in kind and degree to what the employer did in the past.”

In addition to finding a violation for failure to bargain over the ACA implementation, the panel also found the employer violated the Act by failing to give pre-imposition notice and an opportunity to bargain over discipline issued during negotiations for a first contract with the Union as required in the Board’s recent Total Security Management decision.  For more information on this disciplinary bargaining obligation, see our September 29, 2016 blog post here.  In a footnote, Chairman Miscimarra reiterated his disagreement with Total Security Management, a telling reminder that reversal may be in the cards should an appropriate case come before the Board when and if President Trump’s nominees to the NLRB are confirmed.

The key takeaway here is that for employers with unionized workforces, any change in terms and conditions of employment, whether positive or negative, requires notification and bargaining with the union.

casino  By: Howard M. Wexler, Esq.

Seyfarth Synopsis: A three-member panel of the U.S. Court of Appeals for the D.C. Circuit put the National Labor Relations Board “on tilt” when it overturned a decision finding that Bellagio, LLC violated Section 8(a)(1) of the NLRA when it interfered with an employee’s Weingarten right to have a union representative present during an investigatory meeting; retaliated against him for invoking that right; unlawfully surveilled him; and coercively prevented him from discussing his suspension with other employees.

In Bellagio, LLC v. NLRB¸ No. 15-1327 (D.C. Cir. April 25, 2017), the U.S. Court of Appeals for the D.C. Circuit denied the NLRB’s cross-application for enforcement of its decision, where the NLRB found that Bellagio, LLC violated Section 8(a)(1) of the NLRA by interfering with an employee’s Weingarten right to have a union representative present during an investigatory meeting; retaliating against him for invoking that right; unlawfully surveilling him; and then coercively preventing him from discussing his suspension with other employees.  The Court ruled against the NLRB on each of the Board’s findings.

Background

A guest complained that an employee inappropriately solicited a tip and directed a sarcastic comment towards him when he did not provide the employee with a tip. When the employer tried to interview the employee, the employee requested union representation.  The employer then asked if the employee would provide a written statement, which the employee refused without representation.  The employee declined to contact a union representative himself so the employer tried to find one for him.  When they could not, the employee was placed on paid suspension pending investigation.  While gathering his belongings before leaving the building, the employee started to tell a co-worker about what happened, at which point an employer representative entered the area and told him that he could not discuss the matter at that time and directed him to leave.

The Board found that the employer had violated the Act when it asked the employee to provide a statement after he requested union representation, suspended him in retaliation for asking for a representative and “engaged in coercive conduct to compel [employee] to cease speaking to coworkers about his discipline.”

On appeal, the D.C. Circuit Court dealt Bellagio a full house and overturned the Board’s decision. As to the Weingarten violation, the Court held that, “the mere fact that an employee’s request for union representation is not met does not, without more, mean that the employer has committed an unfair labor practice.”  Once an employee validly requests a union representative, an employer has three paths open to it: grant the request, end the interview, or offer the employee the choice between having an interview without a representative or having no interview at all.  Here, the employer “worked diligently” to find a representative, however, when it could not, it placed the employee on paid suspension and conducted the interview the next day (with union representation).  The employer simply allowed the employee to play his hand and either have the interview unaccompanied by a representative, or have no interview and forego any benefits that might be derived from one, as is permitted under Weingarten.

The Court then doubled down on its decision and rejected the Board’s retaliation finding as the employee’s job status was not adversely affected by the paid suspension and held that there is nothing in the record to suggest that the employee was surprised or otherwise intimidated during his interactions with the supervisors.

Bellagio’s jackpot was complete when the Court rejected the Board’s unlawful surveillance determination, finding that it “borders on absurd”; as well as the Board’s unlawful coercion decision, finding that, “it was perfectly reasonable for the Company to instruct [employee] to leave the workplace pending investigation of his alleged wrongdoing.”

Employer Takeaway

The decision highlights that employers are not without recourse to continue with an investigation simply because an employee has requested to have a union representative present and the employer for whatever reason is unable to provide a representative. The Court’s decision is a reminder that “the Board must take account of the context in which a request for union representation has been made as “the [Weingarten] right is not absolute, however, because it may not interfere with legitimate employer prerogatives.”  Importantly, the “mere fact that an employee’s request for union representation is not met does not, without more, mean that the employer has committed an unfair labor practice.”  Employers must, however, tread carefully and not check in the dark as these situations are highly variable and a bad beat remains a possibility.

Texting  By: Jennifer M. Holly, Esq.

Seyfarth Synopsis: The Second Circuit agrees with the Board that the use of profanity in a Facebook post was not “opprobrious enough” to lose the NLRA’s protections and justify the employer’s termination of the employee.

A server whose “conduct [sat] at the outer bounds of protected, union-related comments” when he posted that his manager is a “nasty mother f***er” and “f*** his mother and his entire f***ing family,” was not “opprobrious enough” to lose the protection of the NLRA, a three-judge panel for the Second Circuit Court of Appeals ruled in NLRB v. Pier Sixty, LLC, No. 15-1841 (2nd Cir. Apr. 21, 2017).

Pier Sixty operates a catering company in New York, NY. In early 2011, many of its service employees began seeking union representation.  Following a very contentious union organizing campaign, Pier Sixty employees voted to unionize on October 27, 2011.

Two days before the election, during the work day, a Pier Sixty supervisor gave employee Perez and two other servers instructions, which the Board’s opinion described as “harsh tone,” and included the following instructions: “stop chitchatting” and “spread out, move, move.” Approximately 45 minutes later, Perez, upset by the “continuing disrespect for employees,” wrote the following Facebook post about the supervisor during an authorized break:

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people !!!!!! F*** his mother and his entire f***cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The post was publicly accessible and Perez knew that his post would be visible to his coworkers. Perez removed the post three days later. Management, however, had already become aware of the post, and after an investigation, the employer terminated Perez on November 9, 2011.

Perez filed an NLRB charge alleging retaliation for engaging in protected concerted activities. On April 18, 2013, the ALJ issued a decision finding that Pier Sixty had violated sections 8(a)(1) and 8(a)(3) of the NLRA by discharging Perez in retaliation for his protected activity. Pier Sixty filed exceptions, and a three-member panel of the NLRB affirmed the ALJ’s decision on March 31, 2015.  The NLRB filed an application for enforcement, and Pier Sixty filed a cross-petition for review.

The Second Circuit affirmed the NLRB’s determination based on the deference afforded to the ALJ’s factual findings. The Court explained that in light of the General Counsel’s guidance for evaluating employees’ use of social media to post public criticisms of their employers and workplaces, a nine-factor “totality of the circumstances” test in social media cases had emerged.  The Court acknowledged that while the test the ALJ applied may not have “adequately balance[d] the employer’s interests, Pier Sixty did not object to the ALJ’s use of the test in evaluating Perez’s statements before the Board.”   Accordingly, the Court did not address the validity of the applied test.

Rather, Pier Sixty argued that the Board’s decision that the comments were not so egregious as to exceed the Act’s protection was not supported by “substantial evidence” in the record. The 2nd Circuit disagreed and found:

  • Although the post contained vulgar attacks, the subject matter of the message included workplace concerns.
  • Pier Sixty consistently tolerated widespread profanity amongst its workers, including supervisors, and had never before terminated any employees for such behavior until two days before the union election.
  • The location of the comments was an online mode of communication among coworkers and was not in the immediate presence of coworkers.

Accordingly, the Court found that the Board did not err in ruling that the post, while “vulgar and inappropriate,” was not so egregious as to exceed the NLRA’s protection.

Takeaways for Employers:

  • The Board will not apply the Atlantic Steel test to cases involving social media, even if the posts are public in nature, in light of the fact that the place of discussion is the internet and not face-to-face in the workplace.
  • Companies should ensure policies and handbooks comply with the NLRB’s current guidance on social media and do not interfere with employees engaging in protected concerted activity when off duty. However, while policies prohibiting vulgar and offensive comments need to be sensitive about infringing on NLRA-protected rights, employers should not hesitate to enforce those policies in appropriate circumstances.
  • Employee discipline should not be selectively enforced to prohibit behaviors that relate to union-related activities; discipline should be applied uniformly to all employees.

NLRB (Logo)By: Joshua M. Henderson, Esq.

Seyfarth SynopsisA recent federal appeals court decision makes it even more difficult for an employer to withdraw recognition from a union that has lost majority support.  Employers need to be aware of the possibility of union “gamesmanship” when deciding how to proceed.

An employer that withdraws recognition from a union as the exclusive bargaining agent of its employees does so, as the Board and Courts say, “at its peril.” It’s a risky move, one that requires objective evidence that a union has actually lost the majority support among the employees it represents.  And the employer must be correct about the actual loss of majority support or it will face an unfair labor practice charge for refusing to bargain with a union.  Consider it a form of strict liability in the labor-relations context.  But what if the employer has objective evidence that a union has lost majority support, and then the union regains the majority support before the employer withdraws recognition?  Also, if an employer is found to have violated the law under those circumstances, what is the remedy when the union deliberately did not disclose to the employer it had regained majority status?

In Scomas of Sausalito v. NLRB (March 7, 2017), the D.C. Circuit considered these two questions.  The Court upheld the unfair labor practice charge against the employer that withdrew recognition without knowing that the union had regained majority status.  The Court observed that the employees had suffered from “an extended period of Union neglect.”  Thus, the union had not sought to bargain with the employer for over a year, and held no meetings and provided no information to its members for more than a year, but continued to collect dues from them all the while.  Perhaps not surprisingly, a majority of employees notified the employer in writing that they no longer wanted the union to represent them.  Two days after being confronted with this news, a union representative notified the employer that the union wanted to negotiate a new collective bargaining agreement, and worked behind the scenes to persuade six employees to revoke their signatures on the decertification notice that had been given to the employer.  Yet the union never told the employer that these signatures had been revoked, or that (in light of the size of the bargaining unit) this meant the union had in fact not lost majority support.  The Court decried the union’s “gamesmanship” in not informing the employer, but held that under the Board’s Levitz Furniture test (which the Court had approved of in an earlier case), the employer assumed the risk that it was wrong in evaluating majority support.  Because the employer was wrong, it could not lawfully withdraw recognition.

In answer to the second question, however, the Court reversed the Board’s decision that a “bargaining order” was the appropriate remedy. Bargaining orders are reserved for flagrant, deliberate unfair labor practices.  In the Court’s view, the employer was not acting in bad faith when it withdrew recognition from the union.  The evidence showed that the employer did not act in haste.  Rather, it took steps to ensure that the signatures on the petition delivered to it matched those on the employees’ payroll records.  Moreover, the signatures that remained on the petition after the revocation comprised 42 percent of the bargaining unit.  That exceeds the 30 percent threshold for directing an election, whether filed by a union, an employer, or an employee.  The disaffected employees also had filed a decertification election petition with the Board, but withdrew it after their employer withdrew recognition from the union.  Under the circumstances, the Court rejected the Board’s argument that an election was not an appropriate alternative remedy.

Takeaway for Employers:  Under the Board’s current test (which may or may not be reconsidered by a new Republican-majority Board), an employer may withdraw recognition from the union only when there is an actual loss of majority support for the union; as a practical matter, the employer must be absolutely certain that more than half of the employees in the bargaining unit no longer want the union to represent them.  Even then, the union may be able to undermine the employer’s basis for withdrawal and place the employer’s decision in jeopardy.  When faced with an apparent loss of majority support for a union, an employer should seriously consider choosing the safer option of filing an RM petition (a management election petition) with the NLRB to allow the employees an opportunity to vote on whether to oust the union in a formal election overseen by the Board.  [Good-faith uncertainty of majority status could, in some circumstances and under the Board’s current standard, support an internal poll of employees as to their support for the union, but polling requires fastidious attention to procedural safeguards and is fraught with legal risk as well.]

 

Striking  By: Brian Stolzenbach, Esq.

Seyfarth Synopsis: Employers should not presume that they are permitted to stop paying for employees’ medical benefits once they go out on strike. In a 2-1 decision, the NLRB recently held that — at least in some circumstances — medical benefits may be “accrued” simply by virtue of being employed.  If so, then an employer may not stop those benefits during strike.

Nearly 70 years ago, the NLRB confirmed that an employer has no obligation to finance a strike against itself by paying wages to employees during a strike. See General Elec., 80 NLRB 510 (1948).  No one ever said that strikes are supposed to be painless for strikers or that they entitled to be paid not to work.  Decades after the General Electric decision, it has become very common for employers to provide their employees with medical insurance, in addition to wages, as a form of compensation.  Many (perhaps most) employers assume that the old axiom extends to this form of compensation, as well:  they believe they can never be required to continue paying for their employees’ medical insurance during a strike.  Alas, in Hawaiian Telcom, Inc., 365 NLRB No. 36 (Feb. 23, 2017), the NLRB held otherwise.  Over an impassioned dissent by Acting NLRB Chairman Phil Miscimarra, the two Democrat Members of the Board concluded that this is actually a question of contract interpretation.  Reviewing the collective bargaining agreement that had expired prior to the strike, the NLRB observed that the contract provided medical insurance for all employees covered by the agreement — with no exceptions, save for termination of employment.  Strikers, of course, have not terminated their employment, so the NLRB decided that medical benefits could not be stopped during the strike, even though the collective bargaining agreement had expired.

What does this mean for employers? At the very least, it means that they should be very familiar with the precise terms of the collective bargaining agreement and other documents (benefit plan documents, SPDs, etc.) that govern their medical benefits for organized employees.  They should consider how these documents may be interpreted and whether they may be in need of revision.  Of course, this is a complex area of overlapping labor relations and employee benefits law, and an employer may not lawfully be able to make the changes it desires, for various reasons.  Nevertheless, it is better to understand the potential obstacles and to make a considered decision about dealing with them well before a work stoppage looms on the horizon, rather than scrambling to deal with the issue during a strike or (worse) finding out five years after cutting off benefits during a strike that the decision to do so was unlawful, as the employer did in Hawaiian Telcom.

Striking  By: Marshall B. Babson, Esq., Katherine Mendez, Esq., and Bryan Bienias, Esq.

Seyfarth Synopsis: Several organizations are planning nationwide strikes and boycott activities on February 16-17 to oppose Trump Administration and Republican policies. Employers impacted by these activities should be mindful of employees’ rights before responding.

Several labor and activist groups are calling for national general strikes and boycotts this week to protest policies enacted and proposed by the new Trump Administration and the Republican Congress.

Thursday, February 16: A Day Without Immigrants. The first action, “A Day Without Immigrants,” is currently scheduled for this Thursday, February 16.  The campaign, promoted in Spanish and English, has been spread through Facebook, fliers, and word of mouth and calls on immigrants and their supporters “not to go to work, open businesses, shop, eat in restaurants, buy gas, go to classes, or send children to school.” While the campaign originally focused on the Washington D.C. area, the campaign is expected to spread nationwide. A similar action in Milwaukee, Wisconsin this past Monday, February 13 drew thousands of protesters.

Friday, February 17: National General Strike. Then, on Friday, February 17, a group called Strike4Democracy has called for a national general strike and plans on “over 100 strike actions across the United States, and beyond.” The campaign calls for participants to forgo work on Friday and, instead “plan or take part in an event in your community” and “occupy public space with positive messages of resistance and solidarity.”

The organizers do not plan on stopping there. They intend to use Friday’s national general strike to “build towards a series of mass strikes,” with another mass strike planned on March 8, 2017, another on May 1, 2017 (May Day), and “a heightening resistance throughout the summer.”

So, what does this mean for employers?

While these general strikes and those planned for the future could wreak havoc on an employer’s operations — as employees fail to report to work or leave shifts early — the National Labor Relations Act provides protection for employees who engage in political advocacy that relates specifically to job concerns and to other workplace issues.

Employers have the right to enforce “neutrally applied work rules” to restrict employees from leaving work for political activities unrelated to workplace concerns. As discussed above, whether an employee’s actions are protected or unprotected turns on whether the employee’s absence relates to activity directed at “terms and conditions of employment” which the employer controls or to workplace concerns that affect all employees. If the absence is due to political activity totally unrelated to workplace concerns, employees could be subject to discipline, although discipline is not necessarily the prudent course to take.

Given the myriad issues to be addressed in these strikes, from immigration reform to minimum wage laws to worker’s rights, employers may be hard pressed to show that employees who participate in these strikes in lieu of working have engaged in unprotected activity. Employers could find themselves in further “hot water” with the NLRB if they discipline employees for absenteeism or tardiness related to the employees’ political activities.

If your company is affected by any of the strike activity this week or in the months ahead, contact the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations Team.

Interrogation By: Christopher W. Kelleher, Esq.

Seyfarth Synopsis: The NLRB held that American Medical Response of Southern California (“AMR”) did not violate an employee’s rights during a police investigation of an EMT’s gun violence threat by not providing the EMT with a union representative.

In November 2015, an EMT working in San Bernardino County, CA learned that the Operations Manager planned to fire the EMT’s girlfriend. The EMT responded by telling his coworker, “if things go the way they are looking, I’ll come shoot everyone here.” Concerned, the coworker reported the EMT to management.   

In response, the Operations Manager drove to the nearby police department and asked an officer for guidance on how to handle the situation. The officer came to AMR’s facility, spoke with the EMT while the Operations Manager was present, and performed a threat assessment. Although the Operations Manager was present during the officer’s interview with the EMT, the Operations Manager did not ask any questions during the interview. The Company later decided to terminate the EMT’s employment.

The EMT filed an unfair labor practice charge alleging that AMR had refused his requests for union representation during the interview. Under NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256 (1975), an employee represented by a union has the right to request that a union representative be present during an investigatory interview which the employee reasonably believes could result in disciplinary action. In order to invoke this right, the employee must make a request for union representation. It is not the employer’s responsibility to inform the employee of his Weingarten rights.

Contrary to the EMT’s assertions, the administrative law judge (“ALJ”) found that the EMT did not request union representation, and thus, was not entitled to union representation. The ALJ’s findings were based in part on not crediting the EMT’s testimony. In making this finding, the ALJ noted some inconsistencies in his story. The ALJ also noted that on several occasions in the past, the EMT had requested and had been given union representation. Furthermore, the ALJ found that because the EMT demonstrated a thorough knowledge of his Weingarten rights, it did not make sense that he waited to complain about not receiving union representation until three months after the interview — when he filed his charge.

Notably, the ALJ also found that the EMT was not entitled to union representation because the interview was not an “investigative interview” for which the Weingarten rights applied. Rather, the interview was a police interrogation. Therefore, the EMT’s Weingarten rights did not apply.  Thus, not every meeting with employees constitutes an investigative interview under Weingarten, and even if an investigative interview does take place, the employee must actually request union representation to invoke his Weingarten rights.

View of United States Supreme Court Building, Washington, DC.

By: Robert J. Carty, Jr., Esq.

As our regular readers already know, the Supreme Court is poised to decide one of the most contentious issues facing the wage-and-hour world—namely, whether class- and collective-action waivers render workplace arbitration agreements unenforceable.

Well, it seemed poised until today.  Now we need to sit tight until at least October.

First, a quick recap.  A few weeks ago, the Supreme Court consolidated and granted certiorari in three appeals, one each from the Fifth, Seventh, and Ninth Circuits.  As consolidated, these cases ask the Court to decide whether Section 7 of the National Labor Relations Act (which protects certain “concerted activities”) prohibits class- and collective-action waivers in workplace arbitration agreements—even though the Federal Arbitration Act strongly favors such provisions.

Given the timing of the Court’s actions, many had speculated that oral argument would occur this April, likely leading to a decision by the end of June.  Today, however, the Court notified the parties that oral argument will be scheduled in the 2017 term, which begins this October.  In other words, we don’t expect this issue to be decided until sometime after argument—and the earliest argument will occur is October.

We can’t be sure why the Court has decided to set oral argument in the next term, but we can make an educated guess that the new Administration and the pending nomination of Judge Neil Gorsuch played a role.  Regardless, we have our eye on the situation and will keep you updated as things develop.  Stay tuned.

Striking  By: Bryan R. Bienias, Esq.

Seyfarth Synopsis: Court of Appeals for the First Circuit reversed the NLRB, holding that the Board lacked substantial evidence to find that the hospital group unfairly preferred nonunion workers when filling nonunion positions.

The National Labor Relations Board may not invalidate employment policies that accomplish legitimate goals in a nondiscriminatory manner “merely because the Board might see other ways to do it.” Such was the message the U.S. Court of Appeals for the First Circuit delivered to the Board in Southcoast Hospitals Group v. NLRB, No. 15-2146 (1st Cir. 2017).

The Court ruled that the Board lacked substantial evidence in finding that the hospital group discriminated against union members by giving nonunion workers a hiring preference for nonunion positions. The union’s contract granted union employees a similar preference when applying for union positions. According to Southcoast, the policy was intended to “level the playing field” and stave off staffing complaints by its nonunion workforce.

The Board argued that the policy tilted the playing field too far in favor of nonunion employees, claiming the number of nonunion positions “pales in comparison” to the number of positions covered by the union hiring policy and that nonunion hiring preference covered two facilities, as opposed to the single facility covered by the union policy.

This was not enough, the Court ruled. While the Court acknowledged that the nonunion policy covered more positions than the union hiring policy, union workers were not disproportionately harmed, given that the ratio of covered positions to covered employees was substantially the same under both policies. Likewise, nonunion employees had to compete with workers from two hospitals, as opposed to union workers’ need to compete only with workers from one hospital.

The Court also noted that the Board ignored other aspects of the hiring policies that still leave union members at a comparative advantage, namely that union seniority trumps qualifications for open union positions, while Southcoast is required to choose “the best qualified” candidate for a nonunion position, regardless of seniority.

Employer Takeaway

Employers must often walk a fine line in order to apply different policies to union and nonunion employees in a non-discriminatory manner. However, as the Court in Southcoast makes clear, this does not handcuff employers from attempting to “level the playing field” by giving certain advantages to nonunion employees, so long as the policy does not disproportionately harm union employees and is supported by a legitimate and substantial business justification.