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Top Five Labor Law Developments in May 2017

  • June 21, 2017
  1. Handbook rules requiring employees to obtain preapproval to use cameras and other recording devices at work are not per se unlawful, according to the National Labor Relations Board. Mercedes-Benz U.S. Int’l Inc., 365 NLRB No. 67 (May 16, 2017). The Board denied the Board General Counsel’s summary judgment motion in a case brought against a Mercedes-Benz manufacturing plant. The complaint alleged the mere maintenance of the preapproval rule violated employees’ National Labor Relations Act Section 7 rights by failing to include an exception for protected concerted activity. In response, the employer argued the rule furthered legitimate business interests, including the protection of proprietary and confidential information, maintenance of safety and production standards, and open communication. A majority of the Board held the employer was entitled to introduce evidence of those business justifications in a hearing or offer evidence the rule was communicated or applied in a way that would convey an intent to permit protected activity. For more on the decision, see our blog post.
  2. The NLRB partially reversed an administrative law judge decision issued prior to its ruling in Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016), even though the ALJ’s decision reached a result consistent with that ruling. Western Cab Co., 365 NLRB No. 78 (May 16, 2017). In Total Security Management, the Board held employers must bargain over discretionary “serious” discipline imposed during first-contract negotiations. The Board held its decision would apply only prospectively. In Western Cab, the ALJ anticipated the Board’s ruling and held the employer violated the NLRA by failing to notify and bargain with the union over discretionary discipline while the parties were in contract negotiations. Reversing the ALJ decision as to the discipline, the Board reiterated that Total Security applies only prospectively, and ALJs must apply existing Board precedent. However, the Board affirmed a portion of the ALJ decision holding the employer violated the Act when it unilaterally decreased the waiting period new employees must complete before receiving health insurance coverage. The employer argued the Affordable Care Act required the waiting period change, and the ALJ held the employer was still required to bargain over any discretionary element of implementing the ACA rule, i.e., applying a shorter waiting period than required by the ACA.
  3. The NLRB decided not to extend the right to have a union representative present (Weingarten rights) to nonunion employees (for the time being), and declined to exercise its discretionary authority to engage in rulemaking to reverse its decision in IBM Corp., 341 NLRB 1288 (2004). In Re: Request for Rulemaking Regarding Reconsideration of IBM Corp., 11-CA-019324, 11-CA-019329 and 11-CA-019334 (May 3, 2017). The issue was before the Board as a result of a request by NLRB attorney Charles S. Strickler, Jr. In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the U.S. Supreme Court held that an employee has a right to request the attendance of a union representative in any interview that he or she “reasonably fears may result in his discipline.” The Board’s action does not foreclose the possibility that it will reverse IBM Corp. if an appropriate case is presented to it in the future. For more on this decision, see our blog post.
  4. An employee lost the protection of the NLRA after launching a torrent of obscenities at a supervisor, a Board ALJ has ruled. Harbor Rail Services Co., 25-CA-174952 (Apr. 28, 2017). A rail yard employee complained to his coworkers about cold and rainy work conditions and about the need to take a lunch break. When a supervisor told him it was not yet time for a break and that he needed to return to work, the employee yelled a string of obscenities at the supervisor, and the employee was terminated. Despite the protected concerted activity preceding the tirade, the ALJ held the employee lost the protection of the Act when directing profanity toward the supervisor. Noting that the incident occurred in a work area, in the presence of more than a quarter of the employer’s workers, the ALJ held that “the employer’s right to maintain order and discipline” in the workplace in that instance outweighed the employee’s right to engage in protected concerted activity.
  5. According to a Bloomberg BNA report, unions have much higher election victory rates in “fast” elections (those with less than two weeks between the petition and the vote) than in elections where there is more time between the election petition filing and the vote. Unions have won elections approximately 67 percent of the time overall since implementation of the Board’s April 2015 “quickie” election rules. However, in “fast” elections, the union “win rate” jumps to an astonishing 82 percent. Unions’ success is due in no small part to the rule changes, which have reduced the average time between a petition filing and the election date to 24 days. The data strongly suggests that unions have greater election success when employers have less time to discuss the possible effects of unionization. For more, see our blog post.

Please contact your Jackson Lewis attorney to discuss these developments and your specific organizational needs.

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