Supreme Court Requires SERB ULPs to be Filed Within 90 Days of Earliest Notice

At the end of last month, the Ohio Supreme Court affirmed SERB’s dismissal of unfair labor practice charges filed against the City of Columbus on the grounds that they were untimely.   State ex rel. Murray v. State Emp. Relations Bd., Slip Opinion No. 2018-Ohio-5131.  A unanimous court concluded that the plaintiff should have realized by the time of filing his federal lawsuit that he had grounds to file an unfair labor practice charge over the more than two-year delay in scheduling an arbitration hearing on his termination and rejected his argument that he had filed his lawsuit only to preserve the federal two-year limitations period and had been lead to believe that his union and the city were still discussing scheduling his arbitration.  Accordingly, SERB did not abuse its discretion in dismissing as untimely the ULPs filed more than 120 days after the lawsuit had been initiated.  A divided Court affirmed the dismissal of two later ULPs filed within 90 days of when a settlement agreement between the city and union was signed and provided to the plaintiff claiming to have resolved his grievance 14 months earlier.  The city and union had told the federal court in June 2011 that the grievance had been resolved in July 2010, but did not sign or provide the agreement until September 2011.  The majority found that SERB did not abuse its discretion in finding that the plaintiff should have filed within 90 days of June 23 when he learned about the secret resolution.

According to the Court’s opinion, the plaintiff had been fired from the police department on September 4, 2008 and filed a timely grievance.  The union sought arbitration on September 10 and then the matter sat, as they often do, for almost two years. A year and 360 days after his termination (presumably to beat the limitations period), the plaintiff filed suit on September 4 alleging that he had been denied due process by his termination and delayed arbitration.  An arbitration hearing was then scheduled, according to the plaintiff, and cancelled.   More than 120 days after he filed his federal lawsuit, on January 18, 2011, the plaintiff filed two unfair labor practice charges with SERB against the city and the union, alleging that they collaborated to deny him an arbitration hearing.  However, in June 2011, the city and the union told the federal court that they had settled the plaintiff’s grievance almost a year earlier in July 2010 and sent him a copy of the settlement in September 2011 that was not even signed until September 29, 2011.  The plaintiff filed two more ULPs against the city and the union accusing them of falsifying evidence to deprive him of an arbitration hearing.  SERB dismissed all of the plaintiff’s ULPs on the grounds that they were filed more after the 90 day limitations period had run.

SERB may not hold hearings on ULPs that are filed more than 90 days after the challenge practice occurred. “The ninety-day time period does not commence until the charging party knew or should have known of the conduct which constituted the improper conduct and actual damage ensued.”  Timeliness determinations are not reviewable on direct appeal, but a mandamus will issue if SERB abused its discretion.  In this case, while the plaintiff contended that negotiations over the scheduling of his arbitration hearing continued until December 2010, the Court concluded that he should have realized that he had grounds to file an ULP by the time he filed his federal lawsuit – challenging his termination and the delay in scheduling the arbitration – on September 3.  Because he did not file his initial ULPs until more than 90 days after he initiated his federal lawsuit, his ULPs were untimely.   His ULPs alleging falsification of evidence filed in December 2011 were found to be untimely because they were filed more than 90 days after his attorney had been notified in federal court in June 2011 that the union and city had resolved his grievance among themselves in July 2010, even though they did not ultimately provide him with a copy of the settlement until September 29, 2011.

Dissenting, Justice O’Connor disagreed that the limitations period could have run on the falsification ULPs when the falsified evidence was not even created or provided to the plaintiff until less than 90 days before he filed those ULPs.   He likely would have been unable to prove his case until he received a copy of the supposed agreement.  She believed that SERB abused its discretion by speculating when the ULP actually occurred.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Unlike Central Ohio Weather, NLRB Ends 2014 With Flurry of Activity

Another NLRB initiative was resurrected on December 15 when a final regulation was published shortening the time to conduct union elections in the private sector after April 14, 2015.  Management literature has referred to this as the “ambush rule’ or “quickie election” rule because of its potential to significantly shorten the period during which election and educational communications are shared with employees by employers about the pitfalls union representation.  (Unions generally start their electioneering and education about the benefits of union representation far in advance).  While a union election generally is now held approximately 42 days after a petition is filed, the new regulation contemplates an election could be held as early as 13-22 days after a Petition (for union recognition, unit clarification or decertification) is filed.  Accordingly, unless this regulation is delayed or voided through litigation, employers will need to be better prepared before a Petition is filed because there will not be much time to respond accurately or appropriately under the new rules otherwise.   The new regulation also imposes new obligations on employers to post and distribute notices, to assemble and serve alphabetized lists of employees, and to provide unions with employees’ personal cell phone numbers and email addresses.  On other fronts, the NLRB also changed this month its rules concerning deferring unfair labor practice charges which are also the subject of arbitration or grievance settlements and how it will address union organizational efforts among faculty at religious colleges and universities.

After a Petition is filed with the NLRB (which must be done electronically and served simultaneously on the employer under the new rule), the NLRB Regional Director then serves on the parties a Notice of Hearing.  This pre-election hearing will generally be held within 8 days of service of this notice.  (Because this Notice could be served the same day as when the Petition is filed, the employer’s obligations conceptually begin almost immediately).

One of the significant new requirements in this regulation is that employers will now be required to post (and to distribute electronically if that is the employer’s custom), a Notice of Petition within 2 days of when the Regional Director serves the employer with a Notice of Hearing (which will also contain a copy of the Notice of Petition).  Violation of this rule could result in the election being set aside, even if the employer ultimately wins the election:

Within 2 business days after service of the notice of hearing, the employer shall post the Notice of Petition for Election in conspicuous places, including all places where notices to employees are customarily posted, and shall also distribute it electronically if the employer customarily communicates with its employees electronically. The Notice of Petition for Election shall indicate that no final decisions have been made yet regarding the appropriateness of the petitioned-for bargaining unit and whether an election shall be conducted. The employer shall maintain the posting until the petition is dismissed or withdrawn or the Notice of Petition for Election is replaced by the Notice of Election. The employer’s failure properly to post or distribute the Notice of Petition for Election may be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a). A party shall be estopped from objecting to the nonposting of notices if it is responsible for the nonposting,  . . . .

Employer will also be required to produce a written list of objections to the petitioned election (regarding, for instance, the proposed scope of the bargaining unit, the improper inclusion of supervisors, the improper exclusion of other employees, etc.) by noon the day before the pre-election hearing.    Depending on when the Regional Director serves the Notice of Petition, this Statement of Position might be due as early as seven days after the Petition is filed.   Under the new procedures in the regulation, employers may not be entitled to file post-hearing briefs following the pre-election hearing.  Indeed, the pre-election hearing may not even determine voter eligibility or supervisory status before the election.   In fact, an evidentiary hearing on the employer’s objections may not be not held until after the election.  While the NLRB’s majority thinks this will save time (especially if the employer ultimately wins the election anyway), this ambiguity will create significant problems for employers in determining supervisory status of certain employees in order to avoid unfair labor practice charges and to effectively communicate with employees during the election period.

Another new requirement in the regulation is that the employer is also required to file at the same time (i.e., the day before the pre-election hearing) a list of employees:

The Statement of Position shall include a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing, and if the employer contends that the proposed unit is inappropriate, the employer shall separately list the full names, work locations, shifts, and job classifications of all individuals that the employer contends must be added to the proposed unit to make it an appropriate unit. The employer shall also indicate those individuals, if any, whom it believes must be excluded from the proposed unit to make it an appropriate unit. The list(s) of names shall be alphabetized (overall or by department) . . .

Having such an employee list creates an advantage for the union if it wants to dismiss the Petition and attempt to organize larger group of employees.  At present, unions only need  30% of employees to sign cards expressing interest in an election before filing a Petition, but will need a majority of the eligible employees to vote in favor of the union in order to win.    As a strategic matter, a union could identify an inappropriately small unit for its initial petition, but then dismiss the petition and organize a larger group after the employer produces the new employee list for the entire (and larger) appropriate unit.

After the pre-election hearing, the Regional Director will then issue a Directive and Notice of Election.  (Conceptually, this could be issued the same day as or even the day after the day of the pre-election hearing).  At this point, the employer must file within 2 days an Excelsior list, which has been expanded under the new regulation to include the employees’ personal email and cell phone numbers.   This alphabetized Excelsior list  must contain “the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cellular (‘‘cell’’) telephone numbers) of all eligible voters.” There are no privacy protections or opt-out provisions for employees to avoid distribution of their personal email and cell phone numbers.   On the other hand, if the employer does not collect that information, it need not obtain it just to include in the Excelsior list.   The dissenting NLRB members note that this requirement is inconsistent with the NLRB’s recent decision in Purple Communications (where the Board ruled that employers must presumptively grant email access to employees for union and other section 7 communications because personal cell phones and emails were found to be insufficient).

The Federal Register explanation for the new rule is 184 pages long and obviously contains many details which are not mentioned in this summary.   Notably, an employer will not have time to read all of those pages after receiving a Petition because it will have a lot of other work to do. 

On December 16, the NLRB adopted new standards for determining when to exercise jurisdiction over self-identified religious colleges and universities and how to determine whether faculty are managerial employees who lack rights under the NLRA in Pacific Lutheran University.

A day earlier, in Babcock & Wilcox Construction Co., 361 NLRB 132, the NLRB changed its practice of automatically deferring unfair labor practice charges to the results of labor arbitrations and grievance settlements. 
 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Employer’s Forgiveness of Wildcat Strike Must Be Unequivocal Before Firing Striking Employees Violates NLRA.

On Friday, the Sixth Circuit affirmed a decision by the NLRB upholding the termination of wildcat strikers who claimed that their termination violated the NLRA because the employer had condoned – or forgiven – their unlawful strike before they were terminated. Exum v. NLRB, No. 07-2070. An ALJ had previously agreed with the employees, but the NLRB and the Sixth Circuit found that the statements relied upon by the employees were too equivocal – or ambiguous – to constitute ratification of their illegal strike. It is also clear from the opinion that the Court found the employees’ version of events to be too incredible to believe over the contradictory testimony of the employer’s president. Otherwise, when an employer condones – or forgives – unprotected misconduct by an employee, it can violate the NLRA to later terminate the employee for protesting terms and conditions of employment.

Most of the facts in the case were undisputed. The employer operated a slaughter house and had a bargaining agreement with the union for the last forty years. The CBA guaranteed the employees a 35-hour workweek and prohibited any strikes or work stoppages prior to attempts to resolve any dispute. However, during the 2001 economic slowdown, the employer asked the union to agree to shorten the workweek to 15 hours/week instead of layoffs because at least 21 employees were needed to properly process the meat. Although the union agreed to the reduction in work hours, it apparently failed to so inform the employees, who then walked out – with freshly slaughtered cows on the factory floor -- without first trying to resolve the problem as required by the CBA.

When the striking employees demanded to speak with the president, he agreed to meet with them individually, but not as a mob. He instructed them to return to work within fifteen minutes or to leave the premises. He also explained that if they chose to leave the premises at that point, he would consider them to have voluntarily resigned their employment. When many of them refused to return to work, he asked them to leave – which they did. When they asked if they were being fired, they claimed that he said no and pleaded with them to return to work. As one employee put away his work clothes, he had a brief conversation with the president where he indicated that the employee should take his pen with him because he would need it to fill out job applications. The union representative again arrived at the plan, met briefly with the president, but did not explain anything to the employees – other than to instruct the departing employees to meet with him at the union hall the next afternoon. The union representative denied that any of the employees told him that they intended to return to work the next day. Some employees claim the president told them to put their things away and return the next day.

When some of the striking employees returned to the plant the following morning, they did not attempt to enter the plant, speak with the guard or return to work. Rather, they remained in their cars outside the plant gates and claimed that they were somehow prevented from entering the plant. When the striking employees picked up their final paycheck a few days later, they were told to clean out their lockers and return any company property in their possession. They also received letters from the employer confirming their resignations, and none of them protested or filed a grievance under the CBA.

When strike misconduct has been “clearly shown, condonation may not be lightly presumed from mere silence or equivocal statements, but must clearly appear from some positive act by an employer indicating forgiveness and an intention of treating the guilty employees as if their misconduct had not occurred. . . . The case law in this circuit makes it clear that the employer’s action expressing forgiveness cannot be vague or equivocal.”

In this case, the NLRB “first noted that there were two separate work stoppages in this case. The first was when the employees en masse walked away from their jobs and stood outside the plant. The second was when the employees were given an opportunity to return to work with no repercussions. While neither was a protected strike, the first was clearly forgiven by Employer if the employees returned to their stations, and all employees who did so remained employed. Petitioner and the other employees who continued the strike and chose not to return to their stations initiated a second work stoppage that was not condoned, and for which they were terminated.”

“There is substantial evidence in the record to support the Board’s finding that Employer did not condone the employees’ strike. The employees’ behavior does not support a claim of condonation. Not only did the employees not tell Canada on the day of the strike that they intended to return to work the next day, but they also did not discuss with Freudenberg the determination on their separation notices that they had voluntarily quit and abandoned their jobs. Furthermore, if Freudenberg told the employees to return to work the next day, such a comment when taken in the context of his other statements was entirely ambiguous. Because the employer’s actions in forgiving an unprotected strike must be unequivocal, and a petitioner must demonstrate by clear and convincing evidence that such forgiveness occurred, the court finds that Petitioner has failed to satisfy his burden.”

Insomniacs can read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0395p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.