Court Rejects Wife's Joint Liability for Withdrawal from Multi-Employer Pension Plan by Husband's Business

Last month, the Sixth Circuit reversed a wife’s liability and affirmed a husband’s liability for over $1M in withdrawal liability from a multi-employer union pension plan of a single member corporation formerly owned and managed by the husband several years earlier.  Local 499 v. Art Iron, Inc., No. 22-3925/3926 (6^th Cir. 9/26/24).   While the evidence showed that the husband was the sole owner of the defunct corporation and his consulting business, there was no evidence that the wife’s hobby business of making jewelry was regular and continuous as required. 

According to the Court’s opinion, the husband owned a corporation which wound up its business in 2017, stopped paying taxes, sold its assets and distributed some of its proceeds to the husband as the sole shareholder and director.  Prior to that time, he had taken profit distributions from the corporation and also charged it consulting fees from his consulting business (a single member LLC), which continued to operate for several years after the corporation was dissolved and paid him with 1099-MISC forms instead of W-2s.   He and his wife (who owned her own single-member jewelry- making hobby-business LLC) shared a minor son.  The pension plan then sued both husband and wife for withdrawal liability and the district court agreed that they were jointly and severally liable since their single-member LLCs were under common control with the defunct corporation.   Notably, the wife had never responded to the pension plan’s motion or sought judgment in her favor.

The spouses disputed that their respective LLCs were “trades or businesses” for purposes of withdrawal liability.  The Sixth Circuit noted that:

Section 1301(b)(1) provides that, for ERISA purposes, all employees of trades or businesses that are under common control with an employer signatory to the pension plan shall be treated as employed by a single employer and all such trades or businesses are treated as a single employer. 29 U.S.C. § 1301(b)(1). Under the statute, this means that a trade or business under common control with Art Iron is treated as a single employer with Art Iron. The “primary purpose of the common control provision is to ensure that employers will not circumvent their ERISA and MPPAA obligations by operating through separate entities.”

The Court had no difficulty finding the husband’s consulting business to be a “trade or business”:

As the primary shareholder of [the corporation], [the husband] controlled how his income was allocated to him. He chose to receive income from [the corporation] in three different ways, as (1) employee wages, (2) shareholder distributions, and (3) independent-contractor fees for his consulting services. There is nothing in the record that suggests [he] received these payments for any purpose other than as income or profit.

The second factor, whether an activity is regular and continuous, is also met. According to the record, [he] provided consulting services to [the corporation] for several consecutive years including the year that [it] withdrew from the Plan. This regularity and continuity make [his] consulting business a “trade or business” under Groetzinger.

The Court rejected his argument that his consulting fees were wages because his “argument fails to account for the fact that tax returns are considered sworn statements, and well-established precedent dictates that contradicting sworn statements does not create a genuine issue of fact.”

The Court reversed the judgment against the wife because her hobby jewelry business did not qualify when she did not earn income from it every year, including 2017. “Her minimal level of engagement in her jewelry enterprise in 2017 falls well below what other cases have required for establishing whether continuity and regularity in a trade or business existed.”  It also refused to hold against her her failure to oppose the pension plan’s summary judgment motion because a court may not grant judgment merely because the adverse party failed to respond.

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.

What's New with Unions, Non-Competes and FMLA?

 I’m running a bit behind in my blogging, so I will cover more ground and be a bit more abbreviated than usual. The Supreme Court held that unions can be held liable for intentionally damaging employer’s property during a strike under state law because such claims are not pre-empted by the NLRA.  The NLRB’s General Counsel has officially declared war on most non-compete agreements, although employees can be prohibited from accepting an ownership or management interest in a competitor.   The DOL also explained how to calculate FMLA leave during a holiday week and when the employee’s doctor says that they cannot work more than 8 hours/day. 

The Supreme Court ruled that an employer’s intentional tort claims against a union were not preempted by the National Labor Relations Act when the union started a strike after the employer had filled its cement trucks, which caused the employer to lose all of the cement and risk losing many of the trucks if they were not immediately unloaded in a safe location before the cement hardened in them.  Glacier Northwest, Inc. v. Int’l Bhd of Teamsters, Local 174, No. 21-1449 (U.S. 6/1/23).  The state supreme court had held that the damage was incidental to the lawful strike and, therefore that the tort claim was preempted.  However, the Court’s 8-1 majority found that the NRLB had long required employees to take “reasonable precautions” to protect an employer’s property from foreseeable, aggravated and imminent danger.  Because the union had failed to take “reasonable precautions,” and actually sought the obtained result, its strike activity was not even arguably protected and could not pre-empt state tort laws.  By reporting for duty and prompting the employer create a perishable product, they created an imminent risk of harm to the trucks and destroyed the concrete by then walking off the job after it was poured.

 . . . the Union’s decision to initiate the strike during the workday and failure to give [the employer] specific notice do not themselves render its conduct unprotected. Still, they are relevant considerations in evaluating whether strikers took reasonable precautions, whether harm to property was imminent, and whether that danger was foreseeable. In this instance, the Union’s choice to call a strike after its drivers had loaded a large amount of wet concrete into [the employer’s] delivery trucks strongly suggests that it failed to take reasonable precautions to avoid foreseeable, aggravated, and imminent harm to [the employer’s] property.

                . . .

[The employer] alleges that the drivers’ conduct created an emergency in which it had to devise a way to offload concrete “in a timely manner to avoid costly damage to [its] mixer trucks.” App. 72. The Union’s actions not only resulted in the destruction of all the concrete [the employer] had prepared that day; they also posed a risk of foreseeable, aggravated, and imminent harm to [its] trucks. Because the Union took affirmative steps to endanger [the employer’s] property rather than reasonable precautions to mitigate that risk, the NLRA does not arguably protect its conduct.

A day earlier, the DOL issued a rare opinion letter FMLA2023-2-A about the FMLA.  In it, it explained that when holidays fall during a week in which the employee takes FMLA leave, whether the holiday counts towards the FMLA 12 week entitlement depends on whether the employee took off the full week (meaning the holiday counts) or whether the employee took off less than a full week (meaning the holiday would not count towards the 12 weeks).  The reason being that if the employee typically works 5 days a week and only took one day off for FMLA during a holiday week, the employer may only count 20% of the week against the 12-week entitlement and not 25% (as though it were a four-day work week). 

When a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave. 29 C.F.R. § 825.200(h). Thus, for example, an employee who works Monday through Friday and takes leave for a week that includes the Fourth of July on Thursday would use one week of leave and not 4/5 of a week. However, when a holiday falls during a week when an employee is taking less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day. Id. The Department has taken a consistent approach to the treatment of holidays since the first publication of its FMLA regulations in 1995. See 60 Fed. Reg. at 2200; see also Final Rule: The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67934, 67972-73 (Nov. 17, 2008).

Also on May 30, the NLRB’s General Counsel issued an enforcement Memorandum indicating that she intends to litigate the enforceability  of most non-management non-compete agreements on the grounds that they prevent employees from quitting their jobs and finding new ones and on the belief that most are overly broad.  In other words, she finds most non-compete agreements issued to non-management employees to violated the National Labor Relations Act whether issued during, before or after (in a severance agreement) employment and regardless of the motivation (i.e., confidential information or training investments).  She had conceded that it would not violate the NLRA to prevent employees from engaging in an ownership, management or independent contractor relationship with a competitor following employment. 

Earlier this year, the DOL also issued an FMLA opinion letter No. FMLA2023-1-A reminding employers that employees can essentially take unlimited FMLA leave.  In the employer’s request, the employee’s physician instructed him to not work more than 8 hours/day, even though the employer frequently needs employees to work more than 8 hours/day and operates a 24-hour-day business.  The DOL indicated that the employee remains entitled to 12-weeks of FMLA leave, not just an ADA reasonable accommodation.  If the employee typically works 50 hours/week, then employee would be entitled to 600 hours of leave, not just 480 like a typical 40-hour/week employee. 

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.

Ohio Supreme Court Finds Arbitration Clause Did Not Clearly Cover Intentional Tort Claim Without Specific Reference

Last week, the Ohio Supreme Court affirmed the denial of a motion to compel arbitration of an employee’s intentional tort workplace injury claim based on the arbitration clause of a collective bargaining agreement which did not specifically mention intentional tort claims or the intentional tort statute in the list of employment statutory claims which were covered.   Sinley v. Safety Controls Technology, Inc., Slip Opinion No. 2022-Ohio-4153.  The Court concluded that “while arbitration is generally favored in most contracts, there is no presumption of arbitrability of an individual employee’s claims under an arbitration clause contained in a collective-bargaining agreement.”  It also held that “[t]o compel arbitration against a union employee, the claim at issue must have been clearly and unmistakably waived in the arbitration provisions in the collective-bargaining agreement governing the parties” and to “be clear and unmistakable, the claim must be included either by statute or specific cause of action in the arbitration provision of the collective-bargaining agreement.”  It was insufficient that the clause explicitly applied “to any alleged violation of laws or statutes by the  . . . Company, as alleged by an employee, including without limitation” a list of particular statutes when the intentional tort statute was not one of those listed.

According to the Court’s opinion, the plaintiff employee claimed to have been intentionally injured with the removal of certain safety precautions and his supervisor’s testing the equipment while he was working on it.  When he filed suit against the employer, manufacturer, safety consultant and others, the employer moved to compel arbitration based on the applicable collective bargaining agreement whose arbitration clause covered a number of individual statutory claims, including employment discrimination and workers compensation retaliation, etc.  However, the clause did not specifically mention general torts or the intentional tort statute.

The Court agreed that such claims could be arbitrable if they were covered by the relevant arbitration clause.  While it would be better to cite the specific statute, it is sufficient to describe the types of claims which are covered.

In this case, the arbitration clause explicitly provided that it would apply to all statutory claims against the employer, “including without limitation” a list of various employment-related statutes.  However, the Court’s majority rejected that this could be interpreted to include intentional tort claims:

[I]f the parties intended for the nonexhaustive list to be taken to include all statutory causes of actions generally, then the provision becomes just that, a general clause requiring arbitration of all possible violations of laws or statutes. . . . .

We do not find that an arbitration provision in a collective[1]bargaining agreement must cover every possible, conceivable federal and state law claim in order for the language to constitute a clear and unmistakable waiver. But the body of case law presented by the parties and amici curiae on both sides demonstrates that some specific reference to the claim at issue is required. And while expressly including the specific statute when a right or claim is created by one leaves no question as to whether the parties intended to waive such a claim, doing so may not always be practical or necessary. But for a waiver to be clear and unmistakable, it must identify the claim either by statute or cause of action. Having no reference whatsoever to intentional-tort claims, the CBA here cannot be used to compel Sinley to arbitrate such claims.

The dissent focused on an earlier party of the arbitration clause which further clarified that the scope was to cover all employment-related claims, except for workers’ compensation: ““any employment-related controversy or dispute arising between the parties to [the] Agreement, or between an employee and the parties to [the] Agreement as to the interpretation or application of the terms and provisions of [the] Agreement, or as to the violation of any employment-related laws or statutes (except workers’ compensation matters).”

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.

Ohio Supreme Court Upholds First Amendment Rights of Unions to Picket Residences and Business of Elected and Appointed Government Officials

Earlier this month, the Ohio Supreme Court ruled that the First Amendment protects the right of unions to picket the homes and places of private employment of public and elected officials during labor disputes.  Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State Emp. Relations Bd., Slip Opinion No. 2022-Ohio-3167.  “R.C. 4117.11(B)(7)’s prohibition against inducing or encouraging any individual in connection with a labor-relations dispute to picket the residence or place of private employment of any public official or representative of the public employer violates the First Amendment to the United States Constitution as a content-based restriction of expressive activity.” 

According to the Court’s opinion, after “negotiations over a successor collective-bargaining agreement reached an impasse,” the union “members began picketing on or about October 4, 2017. On seven dates” union members also picketed “outside the residences” of some of the agency’s board members. Once, the union members “picketed outside the private business and place of employment of one of the board members . . . . entirely on public streets or sidewalks. There is no evidence that any labor picketing involved obstructive or disruptive behavior.”  The employer filed unfair labor practice charges with SERB, which agreed that the union had violated Ohio Revised Code 4117.11(B)(7) and ordered the union to cease picketing private residences and businesses.  The union appealed to the common pleas court, which ruled in favor of the employer.  The  Court of Appeals reversed and the Supreme Court affirmed.

Peaceful picketing on a public sidewalk or street enjoys a venerated status as a form of expressive activity that is subject to the protections of the First Amendment to the United States Constitution. R.C. 4117.11(B)(7) makes it “an unfair labor practice for an employee organization, its agents, or representatives, or public employees to * * * [i]nduce or encourage any individual in connection with a labor relations dispute to picket the residence or any place of private employment of any public official or representative of the public employer.” The issue in this case is whether R.C. 4117.11(B)(7) violates the First Amendment.  . . .  we conclude that the statute does violate the First Amendment . . .

As the Court explained, peaceful picketing on public sidewalks enjoys considerable First Amendment protection as public forums.  Nonetheless, the government can regulate such speech – i.e., time and volume -- if the regulations are content neutral.

“[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ ” . . . .

On the other hand, a regulation that targets speech based on its content is subject to the most exacting scrutiny. . . . . If a statute regulates speech based on its content, it must be narrowly tailored to serve a compelling government interest and it must be the least restrictive means readily available to serve that interest. . . . .

Whether a regulation is content based or content neutral thus dictates the degree of scrutiny to which the regulation will be subjected . . . .

The Court rejected the employer’s argument because the restriction cannot “be based upon either the content or subject matter of speech. . . . . “Governmental action that regulates speech on the basis of its subject matter, however, “ ‘ “slip[s] from the neutrality of time, place, and circumstance into a concern about content.” ’ ””

According to SERB and the board, R.C. 4117.11(B)(7) is content neutral because it does not prohibit speech or prevent anyone from communicating any particular message. They further contend that the statute does not create a speech-free buffer zone around public officials’ residences or places of private employment, because all forms of communication other than targeted picketing are permissible. In their view, R.C. 4117.11(B)(7) is a permissible time, place, and manner restriction that is operative during a narrow period of time (picketing in connection with a labor-relations dispute), at a particular place (public officials’ residences and places of private employment), for a particular manner of expression (“targeted picketing”).

Justice Donnelly’s opinion observed that ““[g]overnmental action that regulates speech on the basis of its subject matter, however, “ ‘ “slip[s] from the neutrality of time, place, and circumstance into a concern about content.” ’ ”   While the Supreme Court has upheld restrictions on “all” picketing “before or about” a residence, that ordinance was not limited to certain types of picketing based on the subject matter of the picketing, and, thus, was content neutral. 

R.C. 4117.11(B)(7) additionally regulates expressive activity based on the identity of the messenger. More specifically, it forbids “an employee organization, its agents, or representatives, or public employees” from inducing or encouraging anyone to picket a public official’s residence or place of private employment in connection with a labor-relations dispute.

Because the statute was not content neutral, it is subject to strict scrutiny under the First Amendment and must serve a compelling government interest. The statute’s goal of “protecting the privacy rights of public officials, thereby encouraging citizens to run for or serve in public office and preserving labor peace in Ohio” while laudable, was found to not be compelling enough to save the statute.  As the Justice Donnelly observed, “preserving residential peace and privacy is a significant but not a compelling government interest.”

Moreover, R.C. 4117.11(B)(7) is not narrowly tailored to the point that no less-restrictive means was available to serve the stated interests. Local ordinances and state criminal codes exist to preserve law and order in the event of disruptive conduct that disturbs residential privacy and are justified without reference to the content of the expression. Nor has there been any showing that banning residential and private-employer labor picketing is the only way to encourage citizens to serve as officials of public employers or to preserve the peace during labor disputes in Ohio. The medicine thus prescribed by R.C. 4117.11(B)(7) is not narrowly tailored to the proclaimed illness and indeed far exceeds the interests that it purports to serve

Justice Donnelly also mysteriously rejected the argument that the statute lawfully prohibited secondary picketing against a private sector employer which is not involved in the labor dispute.

picketing at the private employer of a board member or other public official simply does not fit within the secondary-picketing paradigm. Here, the private employer is not a neutral party that has been drawn into the labor-relations dispute only because it does business with the primary employer. Indeed, in this case there is no indication that the private employer that was picketed by the association members had any business relations whatsoever with the board outside of the fact that one of the board members is both the owner and employee of the private employer. There is no indication that the private employer was threatened, coerced, or restrained from engaging in business with the board. Nor is there any evidence that that was the association’s objective in picketing the private employer. Assuming further that the private employer engaged in commerce or an industry affecting commerce, any expressive activity that caused incidental injury to the private employer’s business would not be prohibited by Section 8(b)(4)(ii)(B) and thus would remain protected by the First Amendment.

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 Addresses Union Issues Involving ERISA and Tacit Agreements on Arbitrability of Grievances in a Double-Breasted Shop

 Earlier this month, the Sixth Circuit Court of Appeals issued two interesting union-related decisions.  In one, it held the district court had jurisdiction to hear an ERISA claim even though the parties’ bargaining agreement had expired a years earlier because the union did not request the court to decide an unfair labor practice claim over the duty to maintain the status quo during negotiations. The other case involved whether a double breasted shop was subject to arbitration under the grievance procedure in a subsidiary’s bargaining agreement and whether the parent company had tacitly agreed to permit the arbitrator to decide the initial question of arbitrability by appearing at the arbitration.   The Court remanded the case to determine whether the parent company had tacitly agreed to permit the arbitrator (rather than a court) to determine arbitrability.  The Court also found that the employer’s motion to vacate the award was timely because it was filed within three months of the arbitrator’s supplemental award fixing damages even though it was filed four months after the arbitrator determined liability.

In Greenhouse Holdings v. Int’l Union of Painters and Allied Trades, the Kentucky employer owned 90% of a Tennessee subsidiary, which had a bargaining agreement and shared a similar name with the parent organization.  The union then filed an ambiguous grievance, which was submitted to arbitration.  The Union indicated that it believed that both the Kentucky and Tennessee operations were subject to the bargaining agreement while one management representative insisted that the Kentucky operations were non-union.  The arbitrator sided with the union and ordered wages paid to the Kentucky employees as well as the Tennessee employees.  The employer moved to vacate under the FAA.

The district court agreed that there was insufficient evidence that the employer had agreed that its Kentucky operations were subject to the bargaining agreement and had never signed the CBA.   However, the Sixth Circuit determined that this did not end the question and remanded the case for the trial court to re-examine the facts.  The employer may have tacitly agreed to arbitrate the arbitrability of the dispute (i.e., let the arbitrator decide whether it was subject to the bargaining agreement) instead of permitting a court to determine arbitrability.   If so, the court’s review of the issue would be much more limited and not de novo.

On one hand, the Union’s attorney suggests that Kinney spoke on behalf of Greenhouse at the arbitration. But on the other, Kinney states that he participated only on behalf of Clearview Tennessee. This dispute matters. If Greenhouse wasn’t at the arbitration, or if Kinney appeared on behalf of Greenhouse merely to object to the arbitrator’s authority, then the court can decide de novo whether Greenhouse was bound by the CBA. But if Greenhouse consented to arbitration and the question of whether it was bound by the CBA was clearly before the arbitrator, then a higher standard of review applies.

In Operating Engineers v. Rieth-Riley Construction, the Court reversed the dismissal of the union’s ERISA complaint, but noted that the case may still be ultimately dismissed (on summary judgment) for the same reason.  The union agreed to the termination of the 2013 multi-employer bargaining agreement and refused to accept ERISA contributions from the defendant employer, until the employer discovered an old bargaining agreement (which had expired and been replaced many years earlier), reflecting a previous 9(a) relationship with the union.  The employer insisted on negotiating a new agreement with the union and, thus, maintaining the status quo under NLRA rules.  The union accepted the contributions and then, a year later when negotiations had soured, sought to audit the employer for delinquent contributions and brought suit under ERISA to enforce payment of the allegedly delinquent contributions.  While the union could not attempt to litigate an unfair labor practice charge through ERISA, it could sue the employer for breach of contract under ERISA.  The lack of a live contract – since the bargaining agreement had expired and been replaced years ago – was not a jurisdictional requirement to bring an ERISA action, but it might result in the lawsuit being dismissed on summary judgment or at trial:

The trial court determined that the

source of the obligation . . . . acted as “an essential jurisdictional fact” that it had to “determine before proceeding forward.” . . . And here, [the employer] and the Funds “never entered into another contract” after the CBA expired.  Nor did any independent agreements bind the parties. Without a contract, the court found [the employer’s] contribution duty “[arose] solely” from its “statutory status quo obligation under federal labor law.” . . . . And without a contract, the court held it lacked jurisdiction to hear the Funds’ claim.  So it directed the Funds to the NLRB and dismissed their suit without prejudice.

                 . . . .

Here, the Funds brought an ERISA claim, not an unfair-labor-practices claim. They argued that [the employer] failed to make its “promised [contractual] contributions,” not that it violated the NLRA by refusing to bargain or maintain the status quo. . . . . Because the Funds ask us to find that [the employer] breached a contract, not that it violated the NLRA, their claim does not fall into Advanced Lightweight’s ambit.

Of course, in the end, the Funds’ contract claims may fall flat for the reasons the district court gave.  But those findings go to the merits of the Funds’ ERISA claim, not our jurisdiction to hear it. To the extent that the district court concluded otherwise, it erred.

                 . . .

[Assuming the employer] is right about the contracts; they don’t exist. Even so, a deficient contract claim by itself doesn’t  convert[] the Funds’ complaint into an unfair labor practice claim” and “divest[]” this court of jurisdiction. . . . . Rather, it would mean what a deficient claim always does in this context: The Funds lose on the merits.

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.

Ohio Supreme Court Denies Relief In Two Employment Cases

This week, the Ohio Supreme Court issued two per curiam decisions.  In the first, the Court concluded that there was “some evidence” showing that OPERS did not abuse its discretion when it denied pension benefits to an independent contractor psychiatrist hired by the Lucasville prison despite the amount of control that the prison exercised. State ex rel. Sales v. Ohio Pub. Emps. Retirement Bd., Slip Opinion No. 2019-Ohio-1568.  In the second decision, the Court ruled that the Cuyahoga County Common Pleas Court lacked jurisdiction to restrain the City of Cleveland from changing the starting time of its union firefighters from 8:30 a.m. to 7:00 a.m. because such matters are within the exclusive jurisdiction of SERB.  State ex rel. Cleveland v. Russo, Slip Opinion No. 2019-Ohio-1595.


According to the Court’s opinion, the pro se psychiatrist signed a Personal Services Contract with the prison which identified him as an independent contractor, required him to work 16 hours/week for up to 8 hours/day and required him to submit an invoice in order to be paid.  He was issued 1099 tax forms and did not receive any fringe benefits, or unemployment or workers compensation coverage.   The agreement was renewed several times.  After he terminated the contract, he sought service credits from the Public Employee Retirement System.  OPERS denied his application and appeal, as did a Franklin County magistrate, but the Court of Appeals reversed based on the amount of control the prison exercised over him.   The prison provided him with an office while he was there, provided him with some training, issued him a badge, provided him with malpractice coverage, set his work schedule, and required him to clock in and out.  The court acknowledged that it was unlikely that any psychiatrist could be an independent contractor under such conditions.  The Court reversed because the appeal was subject to an abuse of discretion standard that must affirm OPERS if there is any evidence that could support its decision.  The OPERS regulations distinguishing between employees and contractors favored independent contractor status because he was not carried on payroll, submitted invoices, received no fringe benefits and was identified as an independent contractor, etc. This was “some evidence” supporting the OPERS decision to deny service credit.


According to the Court’s opinion, the firefighter union had filed an unfair labor practice charge over the City’s intention to change the shift starting time.  It then filed for a temporary restraining order, which was granted on the grounds that the change could affect child custody arrangements.  The City sought a mandamus, which was granted because SERB possesses exclusive jurisdiction over disputes covered by the collective bargaining agreement.  No independent statutory or common law right supported the union’s requested relief.


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: Union Can Challenge RIF and Non-Recall of Employees Except Where Employees Signed Release

Last week, the Sixth Circuit Court of Appeals reversed a summary judgment in favor of an employer against a union which challenged the layoff and non-recall of five union employees during a reduction in force.  International Union, UAW v. General Motors LLC, No. 12-2327 (6^th Cir. 7-10-13). The plaintiffs had been laid off out of order of seniority purportedly because they were not capable of performing work being performed after a reorganization.  They were not recalled to work in inverse order of seniority for the same reason.  The Court found that the union raised a material issue of fact about whether the employees were qualified to perform work that was being performed in the factory after the reorganization and by less senior employees who were recalled to work.   However, because two of the employees had signed a release in connection with their separation which waived their right to challenge their termination and any right to future employment, their individual claims were barred.

The union introduced four pieces of evidence which contradicted the employer’s position that the employees were incapable of performing work that remained in the factory.  First, it was undisputed that the employees were competent and performed their former jobs acceptably prior to the reorganization.   Second, the union proffered an affidavit by a line-employee stating that work previously performed by the five employees was still being performed, other than that all employees had to learn a new computer program.   The Court found the district court erred in excluding his testimony on the grounds that he was not a “supervisor” and was unqualified to explain whether any jobs consisted solely of novice-level work.  Third, the employer had recalled novice-level employees with less seniority. While the union might have been incorrect, that was an issue of credibility.  Finally, the union disputed the employer’s characterization of the employees’ qualifications since they were rated higher than the employer now claimed.  While the union might have been utilizing outdated information, that argument again went to credibility and weight instead of materiality.

Two of the five employees received severance pay in exchange for signing a release of claims that contained, in part, language that barred all:

 “claims, grievances, lawsuits, demands and causes of action, whether known or unknown . . . in any way relating to [the] employment and/or separations from General Motors Corporation . . .  .  “I understand that GM does not intend for me to be eligible at any time in the future for reemployment by GM . . . .”

The Court rejected the argument that the releases could not waive post-termination claims because the employees were aware of their recall rights at the time they signed the release and were aware that they were signing away their right to future employment.

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 Revives Retiree Healthcare Litigation Despite Prior Final Judgment Against Unions Over Same 2001 Modifications

Earlier this month, the Sixth Circuit reversed summary judgment for an employer in a class action lawsuit brought by retirees over changes in their healthcare.   Amos v. PPG Industries, Inc., No. 10-3319 (6^th Cir. 11-1-12).   The employer had modified the insurance coverage in 2001 by requiring the retirees to contribute to a portion of the cost.   Unions which had negotiated collective bargaining agreements governing the terms of the retirees’ health coverage brought suit in federal court in Pittsburgh alleging that the employer’s modifications breached those bargaining agreements.  That lawsuit was dismissed on the grounds that the insurance benefits had not vested and was affirmed on appeal in 2007.  While that lawsuit was still pending in Pittsburgh, the plaintiffs then filed a class action suit in federal court in Columbus under ERISA and the LMRA alleging that the insurance benefits had vested and were not subject to change.  Following the dismissal of the Pittsburgh suit, the employer moved for summary judgment on the grounds of collateral estoppel: that the lawsuit had already been litigated and final judgment entered in favor of the employer in Pennsylvania.  The district court here agreed and entered judgment for the employer.  The Sixth Circuit reversed on the grounds that the Unions did not represent the plaintiff retirees and, thus, the retirees had not been given an opportunity to litigate the issue for themselves.

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.

Good News and Bad News from the NLRB in October

It often seems like only crazy news has been coming out of the NLRB these days.   You know what I mean: employers being unable to require common courtesies from their employees or to prohibit them from defaming one another.  In a recent case, the divided NLRB ruled that it violates the NLRA to not promptly respond to a union request for irrelevant information.  However, the NLRB’s General Counsel took some action to reign in some of the craziness last month.  

Responding to Requests for Irrelevant Information.  First, bad news.  In late October, the NLRB ruled that an employer violated the NLRA when it took four months to tell a union in writing that its request for information about a non-union entity was irrelevant. Iron Tiger Logistics, 359 NLRB No. 13.  The ALJ and the union ultimately agreed with the employer that the requested information was irrelevant to the union’s duties as bargaining representative and the employer did not need to produce the information.  The union did not appeal that finding.   Nonetheless, the ALJ found that waiting four months – until after the ULP charge had been filed --  to put in writing that the union’s request was for irrelevant information violated the employer’s duty to bargain in good faith with the union.  As explained by the ALJ:

[A]n employer must respond to a union’s request for relevant information within a reasonable time, either by complying with it or by stating its reason for noncompliance within a reasonable period of time. Failure to make either response in a reasonable time is, by itself, a violation of Section 8(a)(5) and (1) of the Act. Some kind of response or reaction is mandatory. Columbia University, 298 NLRB 941, 945 (1990), citing Ellsworth Sheet Metal, 232 NLRB 109 (1977).

The NLRB agreed: “an employer must timely respond to a union request seeking relevant information even when the employer believes it has grounds for not providing the information.”   Accordingly, the employer in this case “was required to timely provide [the requested] information or to timely present the Union with its reasons for not doing so.”  The Board majority rejected the dissent’s argument --  that no prior cases had ever found a statutory violation when the employer was not required to respond to a request for irrelevant information --  because the requested information was “presumptively relevant.”

 

The question here is not whether the Respondent had a duty to provide the information sought by the Union, but rather whether it had a duty to respond to the Union’s request in a timely way.

Employment at Will Disclaimers.  Now, the “good” news. In the last year or so, the NLRB has taken the position that employee handbook provisions – for both union and non-union employers -- violate the NLRA if they “explicitly prohibit NLRA-protected union or concerted activity, such as joining a union or discussing terms and conditions of employment with coworkers. Even if not explicit, a rule can be unlawful if employees would reasonably construe the language to prohibit such activity.”  It’s the “reasonably construe” language which has generated derision because there has been nothing reasonable about some of the construction being done.   The NLRB General Counsel has advised that:  

Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful.  In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.

 In February, an ALJ ruled that it violated the NRLA for a Red Cross employee handbook in Arizona to contain an employment-at-will disclaimer which provided, among other things, that ““I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”   According to the ALJ,

 

there is no doubt that “employees would reasonably construe the language to prohibit Section 7 activity . . . the signing of the acknowledgement form is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly,  whether represented by a union or not, to change his/her at-will status. For all practical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship. Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.

The employer settled the case rather than appeal it to the NLRB. 

 Employment at will disclaimers are standard in order to explain to employees that they do not have a contractual right to a job for a definite period of time unless certain contingencies are satisfied (like, for instance, a contract signed by the CEO or Board President, etc.).  Without the disclaimer, employers often found themselves being sued by terminated employees claiming that their discharge was unfair and they had been orally promised lifetime employment, etc.  Fortunately, the bad press generated by this ALJ decision and settlement woke up the NLRB General Counsel’s office, which published a memorandum requiring “all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination”  purportedly  “because Board law in this area remains unsettled.”

The General Counsel also publicized that most employment at-will disclaimers do not violate the NLRA. Merely highlighting that “that the employer’s representatives are not authorized to change” the employees’ employment at will relationship does not violate the NLRA.   In particular, the General Counsel specifically approved the employee handbook used by two employers:

·        Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

·        The relationship between you and Mimi's Cafe is referred to as employment at will." This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship. Nothing contained in this handbook creates an express or implied contract of employment.

 The General Counsel acknowledges the utility of the employment at will disclaimers and their prior approval by the Board and courts:

 

It is commonplace for employers to rely on policy provisions such as those at issue here as a defense against potential legal actions by employees asserting that the employee handbook creates an enforceable employment contract. See NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965) ("It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer's policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatsoever, or for no reason, so long as the motivation is not violative of the Act"); Aeon Precision Company, 239 NLRB 60, 63 (1978) (same); Aileen, Inc., 218 NLRB 1419, 1422 (1975) (same).

Accordingly, it rejected the argument that the NLRA was violated by a handbook which provided that no representative had authority to modify the employment at will relationship as long as the disclaimer and/or signed acknowledgement “does not require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way.”  Notably, the NLRB General Counsel’s office is still taking the position that it could violate the NLRA for an employee handbook provision to “require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way.” 

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.

NLRB Makes Union Organizing Easier in Long-Term Care Facilities

In late August, the NLRB issued a 3-1 decision overruling the 1991 Park Manor Care Center decision, which has governed the scope of new bargaining units outside the acute care (i.e., hospital) setting and held that parties who object to the scope of a new bargaining unit in long-term care facilities must demonstrate “an overwhelming community of interest” between the employees included in the petitioned unit and the excluded employees. In other words, a petitioned unit will be deemed appropriate if it contains employees who are readily identifiable as a group and who share a community of interest. Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, 357 N.L.R.B. No. 83 (Aug. 26, 2011). In Specialty Heathcare, the union sought a nursing home unit that consisted only of 53 certified nursing assistants, but the employer contended that the unit should consist of all non-professional and service employees, including maintenance workers, cooks, dietary aides, recreational aides, medical records clerks and clerical employees. This would add 33 additional employees to the unit. The decision is significant because it will make organizing employees in nursing homes much easier for unions if they can convince a majority of a smaller group of employees to vote in favor of the union and then slowly and steadily expand the unit over time to include additional groups. It will also mean that nursing home employers may face multiple unions among its workforce (and multiple bargaining agreements with differing deadlines and benefits, and multiple strikes, etc.). The Board indicated that this is the general rule for organizing all employees outside of the acute care industry.


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: “Reasonable Time for Negotiations” or “It’s Déjà Vu All Over Again.”

This week, the Sixth Circuit affirmed an August 2008 bargaining order by the NLRB involving the voluntary recognition of a union by a small plumbing company in May 2000, two decertification petitions submitted by the employees in March 2002 and May 2003 and two sets of negotiations, the last of which ended in May 2003 and none of which resulted in an initial bargaining agreement. Town & Country Plumbing & Heating, Inc. v. National Labor Relations Board, Nos. 08-2242/2384 (6th Cir. 11/9/09). By the time the employer decided to fight in June 2003, the dispute sat at the NLRB for five years when it was finally resolved against the employer by the NLRB on stipulated facts. In short, the NLRB found that the employer had failed to recognize the union for the required six month period in compliance with the parties’ settlement agreement because the NLRB does not recognize the “modern” business practice of correspondence or telephones and, instead required the parties to meet face-to-face before the clock started ticking on the six-month period.

The union began an organizational campaign in early 2000, which culminated in unfair labor practices being filed against the employer. When the General Counsel issued a complaint, the employer instead decided to informally settle the complaint by voluntarily recognizing the union in May 2000 and providing back pay to twelve employees. The employer and union then negotiated in good faith for almost two years without ever reaching an initial bargaining agreement. In March 2002, the employees filed a decertification petition and the employer withdrew recognition from union on March 14, 2002. The union again filed ULP charges, the General Counsel again issued a complaint and the employer again agreed to settle the complaint by voluntarily recognizing the union and negotiating in good faith in October 2002.

Unfortunately for the employer, this settlement agreement contained a clause that it did not become effective until approved by the NLRB – which did not happen until February 3, 2003 and it was not judicially approved by a Court until September 2003. Notwithstanding this, the employer immediately attempted to negotiate with the union, submitted proposals and responded to information requests by the union. The parties agreed in writing to a limited wage increase for five employees on October 30, 2002. However, for a variety of reasons, the union refused to meet face-to-face with the employer until January 16, 2003. The parties then met two more times, but exchanged information and proposals several times over the next five months and came close to reaching an initial agreement.

As in 2002, the employee again submitted a decertification petition to the employer and, as in 2002, the employer withdrew recognition from the Union on June 27, 2003 – almost eight months after they began negotiating in writing in October 2002, but only five months after the Board approved the formal settlement agreement on February 3, 2003 and 5.5 months after they met face-to-face for their first bargaining meeting on January 16, 2003. Again, the union filed a ULP and, again, the General Counsel issued a complaint. However, this time, the employer decided to fight. The parties waived a hearing before an ALJ and instead issued stipulated facts directly to the NLRB, which did not rule on the dispute until August 2008 – more than eight years after the employer first recognized the union for the first time.

The NLRB decided that it was in the interest of industrial peace to require the employer to negotiate with the union for at least six months before honoring any decertification petition submitted by the employees. The NLRB was not influenced in any way by the 22 months when the employer had already bargained with the union without reaching a bargaining agreement in 2000-2002. The NLRB’s prior decision in Lee Lumber requires a presumptive six-month bargaining period following an adjudicated unfair labor practice during which a union has an irrebuttable presumption of majority status after re-recognition. In this case, the employer argued that the six-month period began in October 2002 when the parties exchanged and agreed upon proposals, information, and limited wage increases, but the union argued that the six month period did not begin until February 3 when the settlement agreement was approved by the Board. The NLRB ultimately split the baby and decided that the six months did not begin until the parties first met face-to-face on January 16, 2003. Accordingly, six months had not passed when the employer withdrew recognition on June 27, 2003 after receiving its second decertification petition in two years.

The Court affirmed the Board’s decision as reasonable and not unduly prejudicial of the employees’ rights to be free of an ineffective union since the employer was only required to recognize the union for another six months before it could, once again, entertain a third decertification petition and withdraw recognition from the union for a third time in this never-ending story . . . ..

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0729n-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.

Despite Union Conflict of Interest Supreme Court Enforces Arbitration of Employees’ ADEA Claims Based on CBA’s Reference to ADEA in Arbitration Clause

Today, the United States Supreme Court (in a 5-4 decision) reversed the Second Circuit Court of Appeals’ refusal to enforce the arbitration clause and held that a “a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 (ADEA) . . . is enforceable.” 14 Penn Plaza LLC v. Pyett, No. 07-581. The plaintiffs were members of the SEIU and their collective bargaining agreement provided, among other things that age, race, sex discrimination was prohibited and that “[a]ll such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination." The Court held that this “clear and unmistakable” waiver of their statutory ADEA right to a jury trial was enforceable because the union was the authorized bargaining representative for the plaintiff employees and “the collective-bargaining agreement's arbitration provision expressly covers both statutory and contractual discrimination claims.” The Court brushed off the inherent conflict of interest between the union and its members’ discriminate claims, finding that those issues could be better resolved through the political process, and through breach of fair representation and discrimination claims brought against the union by the employees.

According to the Court’s opinion, one of the joint-employers owed an office building which engaged the other joint employer (a maintenance and cleaning service). The plaintiffs were employed as night watchmen. With the union’s consent, the building management replaced the other joint employer with a unionized security firm (affiliated with the joint employer) which could supply licensed security guards. Thus replaced, the plaintiffs were then reassigned to positions as night porters and light duty cleaners. They objected and filed a grievance under the CBA that the reassignments constituted, among other things, age discrimination and that they were denied seniority benefits and overtime.

The grievances proceeded to arbitration. However,

“[a]fter the initial arbitration hearing, the Union withdrew the first set of . . . grievances--the age-discrimination claims--from arbitration. Because it had consented to the contract for new security personnel [at the office building], the Union believed that it could not legitimately object to respondents' reassignments as discriminatory.”

The plaintiffs then filed Charges with the EEOC alleging that their transfers had violated ADEA, but the EEOC dismissed the Charges as lacking substantiating evidence. With their right-to-sue letters in hand, the plaintiffs then filed suit in federal court and the employers moved to compel arbitration of their claims under the Federal Arbitration Act. The District Court refused to compel arbitration on the grounds that a union cannot waive the individual statutory rights of employees to pursue ADEA claims in a collective bargaining agreement. The Second Circuit Court of Appeals affirmed, stating that “it could not compel arbitration of the dispute because Gardner-Denver, which ‘remains good law,’ held ‘that a collective bargaining agreement could not waive covered workers' rights to a judicial forum for causes of action created by Congress.’”

The Court’s majority found that the union and employers

“collectively bargained in good faith and agreed that employment-related discrimination claims, including claims brought under the ADEA, would be resolved in arbitration. This freely negotiated term between the Union and the RAB easily qualifies as a ‘conditio[n] of employment’ that is subject to mandatory bargaining. . . . The decision to fashion a CBA to require arbitration of employment-discrimination claims is no different from the many other decisions made by parties in designing grievance machinery.”

Rejecting the argument that the union is not authorized to bargain away the employees’ statutory rights,

“[a]s in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer. Courts generally may not interfere in this bargained-for exchange. ‘Judicial nullification of contractual concessions ... is contrary to what the Court has recognized as one of the fundamental policies of the National Labor Relations Act--freedom of contract.’"

In that the ADEA does not preclude the arbitration of ADEA claims, there is nothing in the NLRA which precludes unions from negotiating that the employees’ future ADEA claims are subject to the grievance and arbitration provisions of the CBA.

“Examination of the two federal statutes at issue in this case, therefore, yields a straightforward answer to the question presented: The NLRA provided the Union and the [employers] with statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not terminate that authority with respect to federal age-discrimination claims in the ADEA. Accordingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely negotiated by the Union and the [employers], and which clearly and unmistakably requires [plaintiffs] to arbitrate the age-discrimination claims at issue in this appeal. Congress has chosen to allow arbitration of ADEA claims. The Judiciary must respect that choice.”

In reaching this decision, the Court brushed off contrary language from Gardner-Denver, which indicated that union arbitrations – while suitable for contractual claims -- were not an appropriate forum for resolving discrimination claims and questioned the competence of arbitrators to decide federal statutory claims.

The Court also dismissed its earlier concerns in Gardner-Denver about the inherent conflict of interest between a union and its individual members.

“[I]n arbitration, as in the collective-bargaining process, a union may subordinate the interests of an individual employee to the collective interests of all employees in the bargaining unit. . . . ‘The union's interests and those of the individual employee are not always identical or even compatible. As a result, the union may present the employee's grievance less vigorously, or make different strategic choices, than would the employee.’”

Nonetheless, the Court found that “there is ‘no reason to color the lens through which the arbitration clause is read’ simply because of an alleged conflict of interest between a union and its members.. . . . . This is a ‘battl[e] that should be fought among the political branches and the industry. Those parties should not seek to amend the statute by appeal to the Judicial Branch.’”

Moreover,

"‘[t]he conflict-of-interest argument also proves too much. Labor unions certainly balance the economic interests of some employees against the needs of the larger work force as they negotiate collective-bargain agreements and implement them on a daily basis. But this attribute of organized labor does not justify singling out an arbitration provision for disfavored treatment. This ‘principle of majority rule’ to which [the plaintiffs now] object is in fact the central premise of the NLRA. . . . In establishing a regime of majority rule, Congress sought to secure to all members of the unit the benefits of their collective strength and bargaining power, in full awareness that the superior strength of some individuals or groups might be subordinated to the interest of the majority." . . . It was Congress' verdict that the benefits of organized labor outweigh the sacrifice of individual liberty that this system necessarily demands. [The plaintiffs’] argument that they were deprived of the right to pursue their ADEA claims in federal court by a labor union with a conflict of interest is therefore unsustainable; it amounts to a collateral attack on the NLRA.”

In any event, the union members may sue the union directly for failing in their duty of fair representation or for its own age discrimination.

The ”NLRA has been interpreted to impose a "duty of fair representation" on labor unions, which a union breaches "when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith. . . . This duty extends to "challenges leveled not only at a union's contract administration and enforcement efforts but at its negotiation activities as well. . . . Thus, a union is subject to liability under the NLRA if it illegally discriminates against older workers in either the formation or governance of the collective-bargaining agreement, such as by deciding not to pursue a grievance on behalf of one of its members for discriminatory reasons. In this case, the plaintiffs also had “brought a fair representation suit against the Union based on its withdrawal of support for their age-discrimination claims. . . . Given this avenue that Congress has made available to redress a union's violation of its duty to its members, it is particularly inappropriate to ask this Court to impose an artificial limitation on the collective-bargaining process.”

Insomniacs can read the full court opinion at http://