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
3
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
▪ 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)
34
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
42
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
43
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
44
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
47
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
49
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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