RECENT DEVELOPMENTSIN LABOR RELATIONSPresented by: Presented to:Gary L. Lieber, Partner NECA Labor Relations ConferenceFord & Harrison LLP New Orleans, LA1300 19th Street, N.W.Suite 300Washington, DC 20036 March 17-19, 2015202.719.2045 glieber@fordharrison.com

NECA Outside Labor Counsel

Topics Covered1. Deferral to arbitration – Babcock & Wilcox2. The statutory right to use the Company’s

email on “Non-Work Time” for Union and/or other concerted activity.

3. Fitness for duty testing.4. “Ban the Box” – state limitations on

inquiries regarding criminal convictions.

Deferral of an Unfair Labor Practice to Arbitration

Has your Chapter ever had a discharge or Union grievance where the employee has also filed an unfair labor practice charge with the NLRB regarding the same discharge?

Deferral under Spielberg Mfg. Co.and Collyer Insulated Wire

The Old Rule –NLRB will defer to arbitration when:1. CBA and statutory issue factually parallel;2. Arbitrator presented with the facts

relating to ULP charge.

Deferral under Spielberg Mfg. Co.and Collyer Insulated Wire

The New Rule Babcock & Wilcox, 361 NLRB No. 1321.The Arbitrator is explicitly authorized to rule (CBA or party stipulation);2.The Arbitrator was presented with and considered the statutory issue (or was prevented from doing so by the other party);3.NLRB law reasonably permits the award.

Practical Effect for NECA-IBEWArbitration Process

1. Parties must specifically stipulate ULP issue is before Arbitrator;

2. Evidence of ULP must be introduced in proceeding;

Practical Effect for NECA-IBEWArbitration Process, cont’d

3. Arbitrator’s Decision must discuss ULP allegation and set forth a logical analysis explaining whether conduct amounted to an unfair labor practice or not (e.g., Mr. X was not terminated because of his role as steward [or because he and others complained to management that the job conditions were unsafe] because the termination was due to legitimate business reasons namely [e.g., his poor performance, absenteeism] as manifested by the fact . . .

Practical Effect for NECA-IBEWArbitration Process, cont’d

Note additionally:1.New Rule applies to settlements so that settlements should contain language that settlement was intended to settle unfair labor practice (should also provide for withdrawal of ULP and release of employees).2.New Rule does not apply to § 8(a)(5) unilateral change/bad faith allegations – was it an unlawful unilateral change in violation of §8(a)(5) or was it lawful, contemplated and/or permitted by CBA.

Statutory Right to Use Employer’s EmailDuring Non-Work Time for Non-Business Use

Purple Communications, 361 NLRB No. 125 (Dec. 2014)

“Employees’ use of email for statutorily protected communications on non-work time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

Non-Work TimeBefore workAfter workDuring breaksMeal timesQuestion: Is an Employer’s email equivalent to the proverbial water fountain?

Now on Non-Work Time• May discuss collective bargaining and any terms and

conditions of employment.• Virtually no exception – undefined “special

circumstances” that would “rarely” be granted and where a complete ban on personal email would not suffice.

Now on Non-Work Time, cont’dNote:1.Employers can still monitor email use to prevent abuse (e.g. use on work time);2.Case limited to email – not other forms of electronic communication;3.Only applies to employees;4.In effect now.

Right to Drug Test or ConductFitness for Duty Testing to

Unionized Employees

What is fitness for duty testing?

• Drug and alcohol testing• Tests to measure whether the person can

perform essential functions of the job

Labor Relations IssuesUnder 8(a)(5) [the duty to bargain in good faith] can a NECA employer:

1. Test to measure whether an applicant can perform essential functions of the job or conduct pre-employment drug and alcohol testing;

2. Perform fitness for duty testing upon current employees returning to work after an injury; and

3. If the Union files an unfair labor practice charge, should the Employer or NECA Chapter seek to have the ULP charge deferred to arbitration under Collyer Insulated Wire and Spielberg Mfg. Co.

ApplicantsCurrent case law:Star Tribune (1989) – no duty to bargain over pre-

employment drug testing (but in reaching decision distinguished case from Lockheed cases (1986) and Houston Chapter AGC (1963).

• Lockheed – could not unilaterally implement medical screening of applicants because employees referred from the hiring hall were already considered hired once at interview stage (those not hired got show up pay).

• Houston Chapter AGC – hiring hall is a mandatory subject of bargaining

Basis for Right to Unilaterally Implement Testing of Applicants

• NECA hiring not like Lockheed• No show up pay• NECA contractors have and exercise the right to reject

• Other authority– Freeman Decorating (2001): case involving

unrelated issue that there must be “the existence of an actual employment relationship before a loss of protected status can occur as a result of engaging in an unlawful strike.”

• Other authority, continued– Hotel Ramada of Nevada d/b/a Tropicana Resort

& Casino (2001 ALJD) – IBEW Local 357 challenge to unilateral revision of pre-employment drug testing – ALJ dismissed charge largely on basis of right to reject, distinguishing Lockheed:

“Rather, Respondent and the Union appear to have applied a clear distinction between hired employees and referrals.”

Testing of Current Employees

Testing – a mandatory subject of bargainingIssue – Has the Union legally waived the right to

bargain?Waiver – Legal standard

•Must be clear and unmistakable

WaiverIn the absence of a definitive past practice that the

Employer can assert constitutes a clear and unmistakable waiver, NLRB will look to text of Management Rights Clause

Current precedent:• Either must explicitly grant the right to test

or

• Grant to the Employer the right not just the right to make rules, but also the right to change rules.

WaiverExamples Bozeman Deaconess (1997) – right to “promulgate” rules not a waiver of the right to bargain over the implementation of a new 100 lb. lifting requirement. Bath Iron Works (1987 Advice Memo) – requirement to observe rules not a waiver of the right to bargain over a new drug testing policy of current employees.

Option to Defer to ArbitrationWhen ULP charge is filed NLRB will consider

deferring the charge to the parties’ arbitration process (Collyer Insulated Wire (1971)) where

• Employer is willing• Time limitations waived• The decision of the arbitrator is final and

binding

Option to Defer to ArbitrationAfter arbitration case is considered, case is reviewed

under standards set forth in Spielberg Mfg. Co. (1955) and will result in dismissal of ULP if

• Arbitrator adequately considered the ULP issue• The parties had presented facts germane to the ULP

issue• Arbitrator’s decision not “clearly repugnant” to the

purposes and policies of the Act (is there any reasonable interpretation of the arbitrator’s decision that could be deemed consistent with the NLRA)

When to Agree to Collyer/Spielberg Deferral to Arbitration

• Current employees?

• Applicants? (Note the current makeup of the NLRB)

Inquiry About Criminal Convictions“Ban the Box”

Federal law – NoneBut note EEOC guidance that such inquiries can constitute unlawful disparate impact upon protected classes under Title VII

Inquiry About Criminal Convictions“Ban the Box”

State LawsCertain states have in varying degrees banned inquiries about criminal convictions.For example:California: Expunged convictions, certain misdemeanors, convictions older than 7 years;Colorado: No disclosure of conviction in sealed criminal record;

Inquiry About Criminal Convictions“Ban the Box”

Connecticut: Any erased criminal charge or conviction;Hawaii: Can only inquire after conditional offer of employment;Illinois: Sealed or expunged criminal charges or convictions and applications must affirmatively state such information need not be disclosed;

Inquiry About Criminal Convictions“Ban the Box”

Maryland: Cannot be compelled to disclose expunged criminal record in application or interview;Massachusetts: Cannot ask whether convicted of crime on application and during interview of certain criminal convictions;Minnesota: Sealed or expunged criminal charges or convictions and applications must affirmatively state such information need not be disclosed;

Inquiry About Criminal Convictions“Ban the Box”

Maryland: Cannot be compelled to disclose expunged criminal record in application or interview;Massachusetts: Can not ask whether convicted of crime on application and during interview of certain criminal convictions;Minnesota: No inquiry before interview or before conditional offer, if no interview;

Inquiry About Criminal Convictions“Ban the Box”

New York: No inquiries regarding sealed convictions;Rhode Island: No inquiry on application;Buffalo, NY: No inquiry on application;Newark, NJ: No inquiry on application and no criminal background check until conditional offer;Philadelphia: No inquiry on application or first interview;Seattle: No inquiry until conditional offer.

QUESTIONS?