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Another Obama-era National Labor Relations Board policy may be on the ropes.  Four years ago, the Board issued its controversial Purple Communications decision.  In that case, it determined that employees have the right to use employers’ email systems to unionize and engage in other activities protected under the National Labor Relations Act. You can access our break down of Purple Communications here.

On August 1, the Board approved an invitation to file briefs on whether Purple Communications should be modified or overruled altogether.  Some interpret this approval as a signal that employees’ ability to use their employer’s email systems to unionize and engage in non-business, protected activity could soon be in jeopardy.

In other words, another employer-friendly NLRB ruling could be on its way.  We’ll continue to follow the issue and updates will be reported here.  Stay tuned!

This morning the Supreme Court issued its long-awaited opinion in Janus v. AFCSME , holding that requiring public sector employees to pay fair share fees to unions violates the First Amendment. As we discussed in our prior posts , a fair share fee (sometimes called an agency fee) is a fee that non-union members must pay to the union to cover the expenses incurred by the union while representing bargaining unit employees.

Until this morning, fair share fees were legal under most state laws, and required by many collective bargaining agreements. This was true despite the fact that the employees paying the fees had intentionally opted not to join the union, because the union still had a legal obligation to represent all employees within the bargaining unit, regardless of whether the employee is a member of the union. These laws became common after the Supreme Court issued its 1977 opinion Abood v. Detroit Bd. of Educ., which held that fair share fees were constitutional and maintained labor peace by preventing “free riders.”

In recent years, there have been increasing challenges to the constitutionality of fair share fees and the validity of Abood. Back in 2014, we discussed the Supreme Court’s ruling in Harris v. Quinn. The Court in Harris began to question the validity of Abood and its supporting rationale. As we noted, the Court came close to overruling Abood but ultimately decided Harris on its specific facts. It held that collection of the fair share fees in the specific context (personal assistants in Illinois) violated the First Amendment. In 2016, another challenge made it to the Court, but we got a 4-4 split decision, due to Justice Scalia’s passing shortly after oral argument

Now, with Justice Gorsuch on the bench, as was foreshadowed in Harris, the Court ruled that fair share fees violate public sector employees’ right to free speech. As a basic premise, the Court recognized that the right to free speech includes the right to refrain from speaking at all. Thus, “[c]ompelling individuals to mouth support for views they find objectionable violates the cardinal constitutional command, and in most contexts, any such effort would be universally condemned.” Accordingly, forcing employees to pay fair share fees (i.e., compelling employees to speak in support of the union when they may otherwise remain silent) violates the First Amendment. Finally, the Court overruled Abood, dissecting and dismantling its labor peace and free rider justifications.

The end result of the Court’s holding is clear: “States and public-sector unions may no longer extract agency fees from nonconsenting employees. . . . Neither an agency fee nor any other payment to the union may be deducted from a non-member’s wages, nor may any other attempt be made to collect such payment, unless the employee affirmatively consents to pay.”

The Court recognized that the loss of these fair share payments would cause unions to “experience unpleasant transition costs in the short term,” but it did not think that such a challenge justified continued constitutional violations. Rather, it pointed out that such a disadvantage must be weighed against the considerable windfall that unions received in fair share fees for the 41 years after Abood.

Surely, there will be many questions that follow and we will be here to help our public sector clients navigate this new territory.

If you have followed our blog over the past year, you are aware of the long and tortured history of the National Labor Relations Board’s joint employer standard.  The recent history starts with the Obama Board’s decision to overturn decades of case law.  But the saga continued.

Just last month, we reported on the Trump Board’s proposal to promulgate regulations adopting a joint employer standard.  According to the Board, issuing regulations will clear up the uncertainty currently surrounding the standard that was created by years of case law.  Those who have been following this matter might view the Board’s proposed rulemaking as a welcome opportunity for clarity on an issue that has vexed employers and unions alike in recent years.

But not everyone was pleased by the Board’s announcement.  In a joint letter to Trump-appointed Board Chairman John Ring, United States Senators Elizabeth Warren, Kirsten Gillibrand, and Bernie Sanders questioned the Board’s ability to remain independent on the issue given its overturned decision in Hy-Brand (in February 2018, the Board reversed its own ruling after its Ethics Officials determined that one of the Board Members should have been disqualified from participating in the case due to a conflict of interest).  Essentially, Senators Warren, Gillibrand, and Sanders accused the Board of using rulemaking to reinstate the Hy-Brand decision.  In other words, they believe that the Board has already decided on the final rule to be issued based on personal bias and without regard for the notice-and-comment process.  Serious allegations, to be sure.

Earlier this week, Chairman Ring responded to the Senators with a letter of his own.  The Chairman explained, in no uncertain terms, that a majority of the Board will engage in rulemaking on the joint employer issue and that it intends to issue a notice of proposed rulemaking sometime this summer.  He reminded the Senators that all Board Members, both past and present, have personal opinions formed by years of experience.  After assuring the Senators that the Board has not pre-determined the final joint employer rule, Chairman Ring also pointed out that the courts have held that personal opinions do not render Members incapable of engaging in rulemaking unless it can be shown that their mind is “unalterably closed” on the issue.

If we’ve learned anything from this dust-up between the Senators and the Board, it’s that the Board will proceed with rulemaking on the joint employer standard, and that accusations of bias from U.S. Senators will not stop it from doing so.  As we said last time – stay tuned.  More news is coming, and soon.

The Supreme Court of the United States held today that arbitration agreements, which waive the right to proceed as part of a class or collective action, are enforceable in the employment context. In Epic Systems Corp. v. Lewis, the Court held that employment agreements that call for individualized arbitration proceedings to resolve workplace disputes between employers and employees are lawful. Interestingly, the Court’s 5-4 decision was authored by the newest Justice, Justice Gorsuch.

In a series of cases, employees and former employees had asserted that agreements requiring individual arbitration violate the National Labor Relations Act, because the NLRA protects employee rights to proceed in class or collective actions. Although it had previously taken a different position, in 2012, the National Labor Relations Board agreed that arbitration agreements, which waive the right to proceed in class or collective actions, violate the NLRA. The Board’s controversial position was set forth in D.R. Horton and Murphy Oil USA.

Employers countered that the Federal Arbitration Act expresses a strong preference for arbitration and makes clear that arbitration agreements are presumptively valid. The FAA requires that courts enforce arbitration agreements, including procedural terms related to the arbitration process itself. The FAA does provide that arbitration agreements will not be enforced if there is a legal basis to set aside the agreement, such as fraud or duress in the making of the contract. However, in this case, the only argument presented was that the individual arbitration agreements violate the NLRA.

The Supreme Court rejected that contention. Ultimately, a slim majority of the Supreme Court agreed with the employers and held that the FAA requires enforcement of arbitration agreements, including agreements that call for individual proceedings, because such agreements do not violate NLRA. The Court noted that in order for a law such as the NLRA to trump the FAA, there must be a clear statement of intention in the law. The Court found no such clear intention in the NLRA.

The Supreme Court’s decision is the law of the land, and that means that arbitration agreements in the employment context that require individualized claims are lawful. Employers looking to update their employment agreements in light of this decision can reach out to any member of the McNees Labor and Employment Group. In addition, if you are thinking about implementing arbitration requirements for the first time, we can help.

It appears that a number of labor unions are planning for the potential negative impact of a big decision regarding fair share fees.  We have heard from several public sector clients who have been contacted directly, or who have had employees contacted, by labor unions about the potential impact of Janus v. AFSCME Council 31, which is currently pending before the United States Supreme Court.  The case, which could ultimately declare fair share fees unlawful, is expected to be released before the end of June of 2018.

Based on what we have read from these unions, they seem to believe that there is a good chance that the Supreme Court will declare fair share fees unconstitutional.

As a reminder, fair share fees are fees that are required to be paid by bargaining unit employees who elect not to be full-fledged union members.  By operation of state law, employees who are in the bargaining unit but who elect not to be union members are forced to pay “fair share” fees in many states, including Pennsylvania.  These fees are often a large percentage of the actual cost of union membership.

Public sector employees have raised multiple challenges to the constitutionality of fair share fees.  Specifically, a number of public sector employees have alleged that such fees violate employee First Amendment Rights.  We wrote about one such challenge here.  That decision, Harris v. Quinn, was highly critical of fair share fees, and the underlying justification for requiring fair share fees.  Harris closely examined the precedent that initially determined that such fees were lawful, which concluded the goals of limiting or eliminating “free riding” and the promotion of labor peace overrode any impact on employee First Amendment rights.

While it was highly critical of these stated goals, the Harris Court came just short of declaring all fair share fees unconstitutional.  A subsequent challenge to fair share fees that also reached the Supreme Court case also fell short of declaring the fees unlawful.

Enter Janus.  Janus is a public employee and member of a bargaining unit, but not a member of the union.  He has been forced to pay fair share fees for some time. Janus has argued that the union engages in certain activities that he does not support, and that the union uses his fair share fees to engage in such conduct.  Essentially, he does not support any of the union’s activities, and he believes it is unfair that he is forced to pay them to engage in such activities.  Janus wants to be able to opt out of paying any fees to the union.  Janus argues that forced fair share payments to a union he does not support is “compelled speech” in violation of his First Amendment rights.

Janus is currently pending before SCOTUS, and many believe that the Court finally has the votes to declare fair share fees unconstitutional.  Based on what we have seen, it appears that at least some labor unions agree.

Some observers believe that the elimination of fair share fees will significantly weaken the political clout of public sector labor unions.  We should soon know the fate of fair share fees generally, as the Janus decision is expected in the near future.  However, if fair share fees are declared unconstitutional, only time will tell what impact, if any, the elimination of fair share fees would have on public sector labor unions.

Stay tuned, we will keep you posted.

For several years we have been providing updates on the Obama-era National Labor Relations Board’s rather employer-unfriendly joint employer standard.  We have yet another. We believe the final episode in this saga should be good news for employers.  We’re just not sure whether the good news will come from the Courts, from the regulatory process, or both.

This may be hard to follow, but stay with us…

To recap, in 2015, the Obama Board issued a decision in Browning-Ferris Industries of California, and vastly expanded the situations in which a franchisor or a source employer could be deemed a joint employer with its franchisee or with a supplier of a contingent workforce.  All that needed to be shown under this new standard was some reserved ability by the franchisor or source employer to potentially control the terms and conditions of the other entity’s employees. To the relief of employers, Browning-Ferris quickly appealed this decision to the United States Court of Appeals for the D.C. Circuit.

As we reported in the Spring of 2017, the Board’s new standard appeared to receive a cool reception from the Court of Appeals during oral argument. We waited and waited, but no opinion came from the Court.

Then, in December 2017, the Trump Board decided Hy-Brand Industrial Contractors, and announced that it would return to the prior standard that required proof of a joint employer’s actual exercise of control over essential employment terms, rather than merely having reserved the right to exercise control. After Hy-Brand was issued, Browning-Ferris was no longer relevant, so the Court of Appeals remanded that appeal back to the Board.  All appeared to be right in the world.

Alas, this return to normalcy was short-lived.  In late February 2018, the Board issued an Order vacating Hy-Brand based on a determination by the Board’s Ethics Official that one of the three Members who participated in the matter should have been disqualified. With that disqualification no Board quorum existed.  So, what next?  The Board asks the Court of Appeals for a “do-over”: please recall Browning-Ferris and issue a decision. Please?!

On April 6, a divided Court of Appeals granted the Board’s request and recalled Browning-Ferris, and just like 2017, we again await that appellate decision.

But hold on.  There’s more.  Yesterday the Board announced that it is considering rulemaking to address the standard for determining joint-employer status. That would be actual regulations, folks. New Board Chair John Ring’s comments accompanying the announcement are telling: “Whether one business is the joint employer of another business’s employees is one of the most critical issues in labor law today. The current uncertainty over the standard to be applied…undermines employers’ willingness to create jobs and expand business opportunities. In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be.”

So, stay tuned for more news.  We know it’s coming.  Just not sure which channel will air it first.

Yesterday, we reported on a Commonwealth Court decision that basically concluded that an arbitrator’s award ordering the reinstatement of a discharged employee who is incapable of performing his job violates the “essence test.” We also noted that a subsequent decision of the court seems to be a bit in conflict with that holding. Let’s take a closer look at that decision.

The Commonwealth Court addressed (what appeared to be) a similar question in the context of a state trooper. The Trooper, a male, had a romantic relationship with a female, which ultimately failed. Thereafter, the female Trooper filed complaints that alleged the male Trooper was harassing her. The Pennsylvania State Police conducted an investigation and found the complaints unsubstantiated. Alleging the same behavior, the female Trooper filed for a Protection of Abuse order (PFA). A judge ultimately issued the PFA, which had a condition that the male Trooper could not carry a firearm. Because he could not carry a firearm, the male Trooper was placed on restrictive duty pending an additional internal investigation. Upon confirming that the PFA included a condition that barred him from carrying a firearm, the State Police terminated the male Trooper.

The Trooper filed a grievance and ultimately submitted the issue to arbitration. The arbitrator ordered that the Trooper be reinstated. The State Police appealed to the Commonwealth Court. Same result as the correctional officer, right? He cannot perform the essential duties of his position, so requiring his employment infringes managerial rights? Nope.

There are two key differences. First, unlike the correctional officer, whose collective bargaining rights are set out in the Public Employee Relations Act (PERA), the state trooper’s collective bargaining rights are established under Act 111. In reviewing arbitration awards under PERA the court uses the highly deferential essence test. However, in reviewing arbitration awards under Act 111, the court uses an even more deferential and narrow test. It is indeed narrow, justifying a vacation of an arbitrator’s award only if there is a lack of jurisdiction, irregularity of proceedings, excess in the exercise of powers, or deprivation of constitutional rights. The State Police argued that the Trooper’s reinstatement was in excess of the arbitrator’s powers. The court disagreed, finding that there is only an excess use of powers if the award requires an illegal act or performance of an act which cannot be done voluntarily. No such excess was present here.

The second difference is more fundamental: unlike the correctional officer, the State Police’s justification for the Trooper’s termination was not his inability to perform the essential functions of a police officer (carry a firearm), but it was the harassing conduct underlying the issuance of the PFA. According to the State Police, the underlying conduct violated department regulations for “unbecoming conduct” and “conformance of laws.” However, those regulations required physical abuse, commission of a felony or misdemeanor, or use of a firearm. None of the harassing conduct underlying the PFA involved any of this type of conduct. Thus, the court found the arbitrator did not exceed his authority in concluding that there was not just cause for the Trooper’s termination.

So, for our public employer subscribers, these cases serve as a reminder that arbitrator decisions are subject to great deference on appeal, making success during arbitration of critical importance. But more importantly, it makes clear that if you are planning on terminating an employee who has established that he or she is unable to perform the essential duties of his or her position, that must be the documented basis (or at least part) for the termination.

In November 2017, the Commonwealth Court of Pennsylvania issued an opinion concerning an arbitrator’s reinstatement of a state correctional officer (“CO”). The CO was responsible for monitoring inmates who worked on the prison’s loading dock. As far back as 2015, the CO’s supervisors noticed unauthorized food items in the dock area. Despite instruction to remove all unauthorized food from the dock, the CO continued to allow inmates to remove food from deliveries, and he personally took food for himself. Finding that he violated several orders, the CO was temporarily removed from his position and later reinstated. Shortly after his reinstatement, a routine search of the dock again found contraband food. This time he was discharged.

The CO filed a grievance and later submitted the issue to arbitration, claiming that the Department of Corrections violated the collective bargaining agreement by discharging him without just cause. The arbitrator agreed and reinstated the CO with a 30-day suspension. The arbitrator found that the CO was not irredeemable, just that “he should not be in a position which requires his supervision of inmates.” The arbitrator noted that the CO must have agreed with his inability to supervise inmates because he applied for, and was granted, a transfer to a guard tower position prior to his termination. Thus, the arbitrator found there was just cause to discipline the CO, but termination was not warranted.

The Department appealed the arbitrator’s award to the Commonwealth Court. The Court reviewed the award using the well-established “essence test,” which is a highly deferential standard. The essence test requires the court to affirm an arbitrator’s award so long as it can be rationally derived from the collective bargaining agreement. The Department argued that the award was not rationally derived from the CBA. It asserted that the award required it to employ a CO who could not perform the functions of the job, i.e. the care, custody and control of inmates. The Commonwealth Court agreed.

The court held that since the arbitrator found that the CO should not be in a position which requires supervision of inmates, the CO could not perform the statutorily-defined duties of a correctional officer. Thus, reinstatement would force the Department to employ an officer with limitations on his ability to interact with inmates. The court found this was in direct contradiction to the managerial rights enumerated in the CBA, which provided the Department had authority to direct its workforce to satisfy its operational needs. Accordingly, the court found arbitrator’s award was not rationally derived from the CBA.

For many public employers in Pennsylvania, the court’s decision is a welcomed limitation on the seemingly limitless power of arbitrators. It just makes sense that an arbitrator should not be permitted to reinstate an employee who the arbitrator himself has determined is incapable of performing his job.

However, a subsequent decision of the Commonwealth Court, analyzing a similar issue, has left some public employers scratching their heads. We will cover the subsequent decision in a post tomorrow.

That sound you just heard was employers everywhere breathing a sigh of relief, and maybe even high-fiving.  That’s because the newly constituted National Labor Relations Board fired off several pro-employer decisions in the last week. The decisions were released in rapid succession in the days prior the expiration of the term of Board Chairman Phil Miscimarra.

As we reported just this week, the Board decided to modify the standard by which it determines whether employer policies are unlawful under the National Labor Relations Act.  That decision will provide some very welcome relief to employers who saw the Obama-era Board find just about every employer policy unlawful.  We also reported that we anticipate that the Board’s approach to social media will similarly become more fair and predictable.

The Trump-Board also made quick work of one of the Obama-Board’s most controversial decisions, Browning-Ferris, which created a new “joint employer” test.  We reported on the new expansive joint employer test adopted by the Board in Browning-Ferris, and expressed our concern regarding increased liability for employers under the new standard.  Browning-Ferris allowed for a joint employer finding, and increased liability, based on theoretical or “reserved” power/control, even if such control was never exercised.  In Hy-Brand Industrial Contractors, the Board abandoned the Browning-Ferris standard and declared that joint-employer status requires proof that the putative joint employer has actually exercised joint control over essential employment terms, rather than merely having reserved the right to exercise control.

The Board also reversed the Obama-Board’s Specialty Healthcare decision, which allowed unions to form “micro-units.”  That decision essentially required the Board to rubber stamp the union’s definition of the appropriate bargaining unit for purposes of a union election and bargaining.  This approach exposed employers to an increased risk of organizing campaigns, and the possibility of having to negotiate with several different unions.  On December 15, 2017, in PCC Structurals, Inc., the Board abandoned the Specialty Healthcare standard and returned to its prior framework for determining the scope of a bargaining unit.

Also on December 15, 2017, the Board reversed another Obama-era decision, E.I. DuPont de Nemours, Louisville Works, which had overturned 50 years of precedent.  In DuPont, the Obama-Board dramatically expanded the definition of “change” for purposes of determining whether an employer made an unlawful unilateral change to the terms and conditions of employment.  Under DuPont, an employer was found to have engaged in an unfair labor practice charge for simply continuing to do what it had done many times previously—for years or even decades. Last week, in Raytheon Network Centric Systems, the Trump-Board reversed DuPont, and announced the return to the prior standard for determining whether an employer is authorized to make changes to the terms and conditions of employment after the expiration of a collective bargaining agreement.

These decisions are certainly indicative of a return to a more employer-friendly Board.  These decisions reversed some of the more controversial, and problematic, decisions of the Obama-Board.  We are certainly hopeful these are a sign of things to come from the Board.  However, with the expiration of the term of Chairman Miscimarra, we may need to wait some time before we receive another batch of pro-employer decisions.

In September, President Trump nominated management-side labor and employment lawyer Peter Robb to replace Richard Griffin, whose term expired on November 4, 2017, as general counsel to the National Labor Relations Board.  Yesterday, the United States Senate confirmed Robb’s appointment to the position.

As general counsel, Robb will play an important role at the NLRB.  He is now responsible for overseeing the Board’s regional offices and legal staff nationwide.  He also has broad discretion to investigate and prosecute unfair labor practice cases that are filed with the Board.

Robb’s confirmation solidifies Republican control of the Board, which already consisted of three Republican and two Democrat Members.  With Robb’s confirmation complete, many expect the Board to reverse significant pro-labor decisions rendered during the Obama-era.  It should be noted, however, that Republican Board Member and Acting Chairman Philip Miscimarra’s term ends on December 16, 2017, leaving another vacancy for President Trump to fill.

As always, we will keep an eye on developments at the National Labor Relations Board, reporting significant decisions and events here on our blog.