The National Labor Relations Board (“NLRB”) is presently wrestling with a particularly important legal issue that has nothing to do with union elections or unfair labor practices. The matter facing the NLRB is much more rudimentary than that – when should NLRB members be recused based upon a conflict of interest. Not to belabor the point (pun intended), but it is critical that NLRB members be able to rule on legal issues presented to them. If matters taken to the NLRB are frequently subject of conflict concerns, the system slows and the wheels of justice do not turn.
The Third Circuit Court of Appeals recently held that actions taken by the National Labor Relations Board (“NLRB”), including its Regional Directors, during a time when it did not maintain a constitutionally valid quorum are nevertheless binding and have full legal force. In Advanced Disposal Servs. E., Inc. v. NLRB, the NLRB found that an employer violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (“NLRA”) when it refused to collectively bargain with a newly-certified bargaining unit. The NLRB issued an order to enforce the election, and the employer appealed.
The Supreme Court of the United States recently vacated a decision that made an employer responsible for the lifetime costs of its retirees’ health benefits, despite there being no language in the labor agreement with the union stating that the employer had this responsibility. The Court sent the case back to the appellate court to determine whether the parties intended for the employer to pay for all of the retiree health care costs in perpetuity.
The NLRA requires employers whose employees are represented by a union to maintain the employee’s existing terms and conditions of employment and to negotiate with the union before implementing any changes to those conditions. Even fundamental changes in the business itself, which are exclusively the prerogative of management and not subject to bargaining, will give rise to a bargaining obligation over the effects of those decisions on unionized employees.
Long-standing labor law has set forth criterion as to when an employer is a statutory successor to a prior employer and what, if any, obligations are owed by such a successor to a union which represented the predecessor’s employees. Generally, the question of successorship status is determined by whether a majority of the subsequent employer’s workforce at a facility is composed of employees who were represented by the union while employed by the predecessor. If they were, then the second employer must recognize and bargain with the union over the employees’ terms and conditions of employment.
Recently the Supreme Court addressed the ability of a union contract, custom, or practice to dictate when the putting on or taking off of personal protective equipment constitutes “changing clothes” and thus constitutes non-compensable time. In Sandifer, the Court held that when the vast majority of such preliminary or postliminary time is consumed in donning-and-doffing of what clearly are clothes, then the entire period, including the time related to personal protective equipment which is not clothing, falls under the collective bargaining agreement’s exception to compensable work time. The Court acknowledged that some personal protection equipment does not meet the definition of clothes, yet the amount of time spent in donning or doffing these items may be so small and difficult to track that such time need not be counted for purposes of computing compensable work time.
In recent years, there has been considerable litigation on the subject of compensation, or the lack thereof, for time spent donning, doffing, and attending pre-shift/post-shift meetings. Employees (current and former), often banded together as part of collective actions, have sued their employers for alleged violations of the Fair Labor Standards Act (“FLSA”) based upon the fact that they were not paid for time spent donning and doffing protective gear or uniforms and time spent attending pre-shift/post-shift meetings. While this is not a new trend, it is an area that warrants the attention of employers, particularly those that require their employees to don and doff protective gear or uniforms and attend meetings while “off the clock.”
On December 20, 2012, the NLRB released its decision in WKYC, Inc., a case in which a union challenged the Board’s long-standing rule that an employer’s obligation to withhold union dues expires when the collective bargaining agreement expires.
Not surprisingly, the Board sided with labor in the case, holding that an employer must continue to withhold union dues even after an agreement expires, unless the employer can show that it has bargained to impasse with the union, or that the union has expressly waived its right to continue receiving dues.
“[I]f it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.” – Through the Looking Glass
It is a challenge to convince a business person that unlike any other business contract, when a collective bargaining agreement (CBA) has expired, virtually all of its terms continue to be in effect. This is because under the National Labor Relations Act (NLRA) an employer cannot unilaterally change terms and conditions of employment, regardless of whether there is a contract or not. The NLRA mandates good faith bargaining before such changes can be made or implemented.