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.

Franklin County Court of Appeals Affirms Vacation of Arbitrator Ruling Which Awarded Back Pay for Grievance That Had Not Been Filed

Last week, the Franklin County Court of Appeals affirmed the vacation of an arbitration award by the Franklin County Common Pleas Court involving the termination of a Reynoldsburg police officer.   Fraternal Order of Police Capital City Lodge No. 9 v. Reynoldsburg, 2013-Ohio-1057.   In that case, the grievant had traded shifts with a co-worker, but then forgot about it while playing cards.   As he was leaving (late) for work, he heard that his young son may have injured himself playing.  Realizing that he was going to be late to work, and before investigating what turned out to be a minor bump on the head, the grievant called off work on the basis that his son “had busted his head open” and impliedly required immediate medical attention.  He did not report to work after learning that it was only a minor injury.  He was terminated after a subsequent investigation reflected his lack of candor in producing a misleading return-to-work form from the office of his family medical provider.  The arbitrator upheld the termination, but awarded back pay to the grievant because of the manner of the employer’s investigation and preclusion of cross-examination during the pre-termination hearing about the use of subpoenas during the investigation.  The Court first held that there was no violation of the CBA alleged or proven by the City’s questionable use of subpoenas during its investigation.  Although it agreed that the City may have violated the bargaining agreement in limiting cross-examination during the pre-termination hearing, it still concluded that the arbitrator exceeded his authority by resolving that issue in the hearing on the termination.  Instead, the grievant should have filed a second grievance on that issue, but did not.

According to the Court’s opinion, the grievant’s superiors requested a medical excuse to justify his absence because of the number of sick days he had taken so far that year.  At that point, the grievant took his son to his family medical provider’s office, explained that his son was not seriously injured (and they agreed he did not require medical treatment), but asking for a medical statement to justify his calling off work the previous evening.   The medical assistant gave him an unsigned return-to-work form stating that his son had been receiving medical care for the last two days.  In the meantime, the Chief found out about the poker game and began a more thorough investigation, which involved the use of subpoenas issued by a magistrate in the Mayor’s Court concerning possible criminal charges.  The Grievant was never informed that he was under criminal investigation (as required by the CBA), but was ultimately accused of failing to call off work when he knew he would be late, calling off work without a valid excuse, failing to be truthful, and insubordination during the investigation.

The Safety Director held a pre-termination hearing on the charges, but precluded questions about the subpoenas that had been issued.  The Mayor then terminated the grievant.  In the subsequent arbitration, the grievant admitted that he had failed to report in advance that he would be late for work and that he lacked a good reason to be absent, but denied being untruthful.  The arbitrator, however, found that he was being untruthful when he attempted to mislead his superiors with a misleading medical excuse:

As oftentimes happens, an employee will compound what in the beginning is only a minor infraction or work rule violation. If the Grievant would have merely come to work late and explained his circumstances, his discipline, if any, would have been minor. Instead, as is often the case, the "cover-up" becomes worse than the original offense. Misrepresenting his son's condition by obtaining a false and misleading doctor's excuse in order to obtain an excused absence is much more serious than forgetting that there was a shift trade, reporting for work late after examining Tyler's' [sic] injury, or even failing to show up for work at all and accepting an unexcused absence.

Accordingly, the arbitrator sustained the discharge.

The FOP then challenged the City’s use of subpoenas to gather information and the Safety Director’s refusal to permit questioning at his pre-termination hearing about those subpoenas.  The bargaining agreement provided the grievant with the right and opportunity to confront and cross-examine his accusers.  Although the arbitrator refused to exclude the Grievant’s testimony introduced to rebut the evidence gathered by the City with the subpoenas, the arbitrator instead awarded backpay from the date of the termination to the date of the arbitration award as the remedy to the City’s violation of the CBA.

On appeal to the common pleas court, the City argued that the arbitrator exceeded his authority by awarding back pay for an issue not properly before him.  The FOP argued that the grievant should also be reinstated because the award violated public policy. The FOP also later argued that the award was procured by fraud because federal court civil action discovery revealed that the City claimed it had been conducting a criminal investigation of the grievant when the subpoenas were issued, but had denied that repeatedly during the arbitration hearing.

The parties agreed that the issue of whether the grievant had been fired for just cause was properly before the arbitrator.  Generally, procedural issues that grow out of such a dispute, such as the admissibility of evidence, is also properly before the arbitrator.

However, whether the arbitrator had the power to grant Blake a remedy for the City's improper use of subpoenas is a different matter. Generally, an arbitrator decides whether or not a violation of a collective bargaining agreement has occurred. After finding a violation, an arbitrator has the power to grant a remedy for that violation. Queen City Lodge No. 69 at syllabus. The FOP does not allege, and we have not identified, any provision of the CBA that the City violated through its misuse of its subpoena power. Consequently, to the extent that the arbitrator based his award to [the grievant] on the City's misuse of its subpoena powers, the award lacks rational support. The CBA does not give any ground or justification for the award. We thus conclude that the arbitrator exceeded his authority when he premised his award to [the grievant] on the City's collection of evidence through subpoenas that were improperly issued.

Nonetheless, the procedural issues during the pre-termination hearing – refusing to permit the FOP to question witnesses about the City’s investigation – arguably violated the CBA even if issuing the subpoenas did not.   The CBA also has a three-step procedure for filing and pursuing grievances (i.e., complaints about breaches of the CBA).   A dispute may only be submitted to arbitration after these three steps have been satisfied.

Here, the award to [the grievant] conflicts with the express terms of the CBA. The arbitrator effectively rewrote the CBA when he addressed a grievance that had not proceeded through steps one through three of the grievance procedure. As the CBA requires the exhaustion of that procedure before the initiation of arbitration, the arbitrator exceeded his authority by allowing [the grievant] and the FOP to bypass that procedure. See Portsmouth v. Fraternal Order of Police, Scioto Lodge 33, 4th Dist. No. 05CA3032, 2006-Ohio-4387, ¶ 25 (finding that the arbitrator exceeded his authority when he considered a grievance that the union member had not submitted to the pre-arbitration procedures required by the collective bargaining agreement).

Accordingly, because the issue of whether the Safety Director violated the CBA by restricting cross-examination during the pre-termination hearing had not been properly grieved before being submitted to the arbitrator, the arbitrator exceeded his powers in issuing a remedy on that basis.

The Court then rejected the FOP argument that the arbitration award violated public policy against sham subpoenas that arguably violated the Fourth Amendment.  The Court noted that the City did not utilize any of the evidence gathered by the subpoenas in the arbitration.  Instead, the FOP introduced copies of the subpoenas and gathered evidence to the arbitrator.

During his testimony before the arbitrator, [the grievant] admitted to two violations of the code of conduct underlying his discharge. The arbitrator found that those violations, alone, did not justify the termination of his employment. However, when considering those two violations in conjunction with the false and misleading doctor's excuse [the grievant] submitted to the City, the arbitrator concluded that discharge was an appropriate sanction. In determining that the doctor's excuse was false and misleading, the arbitrator relied on [the grievant’s] version of events and Blake's admissions that he knew his son was neither seriously injured nor under a doctor's care. The arbitrator also considered [the grievant’s] disciplinary record, which [he] verified during his arbitration testimony, and determined that he would not mitigate the sanction imposed. After reviewing the totality of the arbitrator's analysis, we conclude that the evidence adduced during [his] testimony, not the evidence obtained through the subpoenas, led the arbitrator to sustain [his] discharge.

Therefore, because the arbitrator relied only on the City’s properly gathered evidence and the grievant’s own testimony and disciplinary record, there was no basis to conclude that the decision to sustain the discharge was based on illegally obtained evidence.

The fact that the charges against the grievant were based on tainted evidence is not the same as the arbitration award being based on tainted evidence:

The charges, which were set forth in Suciu's pretermination written statement, were based on the tainted evidence. However, for a court to vacate an arbitrator's award, the award must result from a violation of public policy. Here, the award resulted from the arbitrator's determination that the circumstances, as related by [the grievant] himself, warranted [his] discharge.

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.

Defamation and Privilege in the Workplace

Last month, the Ohio Court of Appeals affirmed the dismissal of most of the claims of defamation and tortious interference brought by a discharged supervisor against the employees’ and union officials whose allegations had led to his termination. Gintert v. WCI Steel, Inc., 2007-Ohio-6737 (12/14/07). In that case, the supervisor had been accused over the course of a couple of years of, among other things, sexually harassing two male co-workers, making racial slurs and leaving work early without permission to begin his vacation. He then brought suit against the employees who made the allegations and the union stewards who brought the allegations to the attention of management, which terminated. (The lawsuit against the employer was stayed when the employer filed for bankruptcy).

The Court dismissed all but one of the claims because the challenged statements were reasonably connected with the union grievance procedure and, therefore, were protected by a qualified privilege. “Under the doctrine of qualified privilege, statements made in good faith on a matter of common interest between an employer and an employee, or between two employees, concerning a third employee are protected in an action for defamation. . . . If the requirements for the qualified privilege are established, then the burden falls on the plaintiff to show by clear and convincing evidence that the statements were made with actual malice, i.e., that the statements were made with knowledge or reckless disregard for their truth or falsity.” In addition, Ohio recognizes “that "union officers and employees are immune from personal liability for acts undertaken as union representatives, on behalf of the union."

However, the court found that one of the sexual harassment accusations could have been made with actual malice because the plaintiff supervisor denied categorically to having made any of the alleged sexually harassing statements and this raised a question of fact as to whether the defendant made the accusation with knowledge or reckless disregard for the truth. Nonetheless, the court dismissed the tortious interference claims because of the same privilege and held that the accusations were not outrageous enough to sustain an emotional distress claim.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/11/2007/2007-ohio-6737.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.