May 2018

Second Circuit

Montero v. City of Yonkers, 890 F.3d 386 (2d Cir. 2018).

The Court of Appeals holds that police officer spoke on matters of public concern in his capacity as a union representative. As vice president of the union, Montero criticized the police commissioner’s decision to discontinue several police units — including those dealing with domestic violence and burglary and one dedicated to the Police Athletic League — that would adversely affect the police department and the community. After Plaintiff suffered retaliation for this speech, he brought this lawsuit, which the district court dismissed on Garcetti grounds, holding that plaintiff spoke pursuant to his job duties. The Second Circuit rejects the district court analysis and finds that Plaintiff engaged in protected speech.

The Court notes “there may be some confusion as to whether” the issues of “whether (1) the speech was outside the speaker’s official responsibilities and (2) there was a civilian analogue — must be answered in the affirmative for the speech to be protected under Garcetti.” But the Court settles that issue in this case. “Although the presence or lack of a civilian analogue may be of some help in determining whether one spoke as a citizen, ‘the critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties.'”

The Second Circuit issues three primary holdings. First, since Plaintiff’s speech as a union official was not “part and parcel of his concerns about his ability to properly execute his duties” as he spoke “as union vice president, a role in which he was not required to serve,” his remarks “did not fall within his employment responsibilities.” The Court does not, however, categorically hold that all speech in the Plaintiff’s capacity as a union member constitutes speech as a private citizen. Since “his union speech was not composed of statements made as a ‘means to fulfill’ or ‘undertaken in the course of performing’ his responsibilities as a police officer,” he spoke as a citizen. Second, plaintiff spoke on a matter of public concern because his union remarks opposed the commissioner’s personnel cuts and plaintiff called for a no-confidence vote with respect to the commissioner. Speech about the terminate of police units that would endanger public safety constitutes speech on a matter of public concern.

However, most of the defendants are entitled to qualified immunity, because the law was not clearly-established at the time of the violation. The Court of Appeals says the state of the case law at the time of the retaliation was too unclear to put Defendants on notice that they were violating the First Amendment. One defendant does not get qualified immunity, at least, for now, because he has not requested it yet.

Submitted by:
Stephen Bergstein, Esq.
Bergstein & Ullrich, LLP
5 Paradies Lane
New Paltz, New York 12561
(845) 419-2250
www.TBULaw.com  
www.secondcircuitcivilrights.blogspot.com  

Fifth Circuit

Benson v. Tyson Foods, Inc., 889 F.3d 233 (5th Cir. 2018).

Vanity Benson alleged that she suffered an ankle injury while operating a forklift on the job as an employee of Tyson Foods, causing several broken bones and requiring multiple surgeries, including the placement of screws in her foot. Tyson ultimately terminated the plaintiff for attendance issues and alleged job abandonment, and she sued claiming discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101 et seq. on the account of a disability – her injured foot.

At trial, the jury determined that the plaintiff did not meet the ADA’s definition of “disability” and dismissed the claims. The plaintiff did not move for judgment as a matter of law, but later filed motions to interview the jury post-trial and for a new trial, arguing that the jury ignored the evidence in finding that she was not disabled. The district court denied both motions, and the plaintiff appealed.

On appeal, applying an abuse of discretion standard, the Fifth Circuit held that there was ample evidence in the record to support the jury’s conclusion that the plaintiff was not disabled. Among other things, a doctor testified that the plaintiff’s ankle injury had healed correctly and that she required no further treatment, and the plaintiff herself admitted to “fictionalizing details in the initial account of her foot injury,” weakening her credibility. She also acknowledged that she was able to play basketball and work two jobs that required her to stand on her feet. Based on this evidence, the Fifth Circuit concluded that the district court did not abuse its discretion in denying the plaintiff’s motion for a new trial.

Regarding the district court’s denial of plaintiff’s counsel’s request to interview the jurors post-trial for purposes of learning the basis of the verdict and improving his trial advocacy, the Fifth Circuit concluded that the First Amendment interests of the plaintiff and her counsel in interviewing the jurors did not balance, and were in fact outweighed by, the jurors’ interests in privacy and the public’s interest in the efficient administration of justice. The Court thus determined that the district court did err in denying the plaintiff’s request to interview the jury. Justice Graves concurred in this ruling, but on different grounds – that is, that there was no benefit to the plaintiff in interviewing the jury because there could be no retrial.

Davenport v. Edward D. Jones & Co., 891 F.3d 162 (5th Cir. 2018).

Tyanne Davenport worked as the Branch Office Administrator for a manager named “Coyne.” During her tenure, Coyne verbally insulted and abused Davenport on various occasions, and when a wealthy potential client (“Fisher”) expressed interest in Davenport, Coyne told her that she should date Fisher in exchange for “big bonuses.” Davenport said that she had a boyfriend and was not interested, but Coyne repeated his offer several more times. Davenport never dated Fisher. At her next performance review, Coyne rated Davenport as “exceeding expectations” and recommended that she receive a 4% salary raise, but she did not receive a bonus.

Several weeks later, at an informal meeting between Coyne, Fisher, and another financial advisor, at which Davenport was present, Coyne suggested that Davenport provide Fisher with a “nudie picture” so that he would switch his accounts to Coyne’s office. There were no “nudie pictures,” but Davenport was offended and embarrassed. The next day, she reported the incident to associate relations, and an investigation was opened. Davenport requested, and was granted, an extended leave of absence. She then filed a charge of discrimination with the EEOC describing the “nudie picture” incident and her resulting leave of absence, but did not mention the alleged bonus offers. Subsequent discussions regarding a transfer to another branch office did not pan out, and Davenport formally resigned from Edward Jones.

After receiving a notice-of-right-to-sue from the EEOC, Davenport filed suit alleging quid pro quo and hostile work environment sexual harassment under Title VII as well as various state-law claims, including sexual discrimination, defamation, and “false light” invasion of privacy. Edward Jones moved for summary judgment on each of the claims, and the district court granted the motion in its entirety, reasoning that: (1) Davenport had not administratively exhausted the quid pro quo constructive discharge claim; (2) the quid pro quo claim based on the receipt of bonuses in exchange for acquiescence to sexual advances was not cognizable under Fifth Circuit precedent because it did not involve advances with the supervisor; (3) Coyne’s behavior did not rise to the level of an actionable hostile work environment; (4) and the “nudie picture” comments did not demonstrate “malice” or seriously interfere with her privacy as required for the state law claims. Davenport appealed only the constructive discharge claim, the bonus-based quid pro quo claim, and the invasion of privacy claim.

On appeal, the Fifth Circuit affirmed the district court’s ruling, but on somewhat different groups. As to the constructive discharge claim, the Court agreed that the plaintiff had not presented the claim to the EEOC and thus had not exhausted her administrative remedies on the claim. The Court observed that, among other things, Davenport’s charge did not allege that she left her employment or her reasons for doing so, and while it briefly mentioned the “nudie picture” incident and her extended leave of absence, it did not suggest a link between that incident and her departure from the company.

As to the bonus-related quid pro quo claim, the Fifth Circuit opined that it did not matter that a third-party was to be the beneficiary of the sexual harassment: Coyne made the requests and thus engaged in the sexual harassment, which was enough. Stated another way, the propositioning in a quid pro quo case does need to be for the benefit of the supervisor. In addition, Coyne’s open-ended suggestion that Davenport “date” Fisher could be regarded as an actionable “request for sexual favors.” However, two of the three panelists found that Davenport failed to present evidence of a tangible employment action insofar as she did not show that there was actually an available bonus that she was eligible for, which Coyne could approve or disapprove. The third panel member – Justice Higginson – would have found a genuine issue as to whether Coyne possessed such authority.

Finally, the Fifth Circuit agreed with the district court in its dismissal of Davenport’s state-law invasion of privacy claim, finding that, while offensive, Coyne’s “nudie picture” comment was merely a distasteful joke that was not an unreasonable invasion of Davenport’s privacy.

Carley v. Crest Pumping Techs., LLC, 890 F.3d 575 (5th Cir. 2018).

Oil well services provider Crest employed the plaintiffs as cementers. After leaving the company, the plaintiffs filed suit alleging that Crest failed to pay them overtime as required by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Crest answered asserting that it was exempt under the Motor Carrier Act (“MCA”).

Generally speaking, the MCA exempts from the FLSA’s overtime provisions employees whose job duties affect the operation and safety of motor transportation on highways in interstate commerce. The exemption primarily applies to truck drivers, mechanics, loaders, and closely related positions. However, the SAFETEA-LU Technical Corrections Act (“Corrections Act”) provides an exception and states that the MCA exemption does not apply – and overtime must be paid – if the vehicle in question weighs less than 10,000 pounds.
Following the close of the plaintiffs’ evidence at trial, Crest moved for judgment as a matter of law, arguing that the exception to the MCA exemption provided by the Corrections Act did not apply because the plaintiffs had not refuted Crest’s evidence that the plaintiffs’ vehicles had a gross vehicle weight rating (“GVWR”) of 11,500 pounds, though they had attempted to show the actual, unloaded weight of the vehicles. The parties disputed the allocation of the burden of proof with respect to the Corrections Act, but in charging the jury, the Magistrate placed the burden of proof on Crest as the employer. The jury returned a verdict for plaintiffs, finding that Crest had failed to carry its burden of proof on the MCA exemption. Crest timely moved for JMOL and, alternatively, for a new trial, both of which motions were denied. Crest appealed.

On appeal, the Fifth Circuit addressed the more technical question of which party must prove the vehicle’s weight in determining whether the Corrections Act provides an exception to the MCA exemption in a given case. As is generally the case with exemptions under the FLSA, the burden of proof with respect to the application of the MCA exemption lies with the employer; however, as the Court observed, the Corrections Act creates an exception to that exemption – or an exception to an exception – and was further included in Section 7 of the FLSA, which pertains to the plaintiff’s burden of proof. Thus, while the employer has the initial burden of proving the application of the MCA exemption, the Court held that the employee has the burden of proving a weight that provides an exception to that exemption.

The Fifth Circuit then turned to the question of what constitutes “weight” under the Corrections Act – GVWR or the actual, unloaded weight of the vehicle. Citing a 2010 Department of Labor bulletin, the Court held that the GVWR is the relevant measure. As Crest’s evidence of the GVWR was undisputed, the Court not only vacated the ruling, but rendered judgment in favor of the employer.

Submitted by:
Laura E Carlisle
Baker, Donelson, Bearman,
Caldwell & Berkowitz, PC
201 St. Charles Avenue, Suite 3600
New Orleans, Louisiana 70170
Direct: (504) 566-8643
Email: lcarlisle@bakerdonelson.com  

Sixth Circuit

Mys v. Michigan Department Of State Police, ___Fed. App’x.¬¬¬___, 2018 WL 2448093 (6th Cir. May 31, 2018)

Linda Mys (“Plaintiff”), a former desk sergeant with the Michigan Department of State Police (“Defendant”), alleged she was retaliated against after filing two complaints of sexual assault and sexual harassment against one of her coworkers. In the district court, Plaintiff was awarded $350,000 in compensatory damages. On appeal, Defendant argued that the district court erred in denying its motion for judgment as a matter of law and requested a new trial or in the alternative its motion for a remittitur. The court of appeals denied Defendant’s request for new trial. Likewise, the court denied Defendant’s motion for remittitur because the jury award for Plaintiff’s pain and suffering was not “clearly excessive.”

After Defendant’s appeal was denied, Plaintiff moved for attorney fees and sanctions against Defendant. Defendant did not contest the attorney fees award. However, it contested the $225,000 Plaintiff sought as sanctions for the factual and legal misrepresentations made by Defendant’s attorney. At one point, Defendant’s counsel argued that there was no desk-sergeant vacancy at the post where Plaintiff had been temporarily reassigned, despite multiple witnesses testifying to the contrary. The court found that, although Defendant’s actions merited sanction, $225,000 was excessive as the amount was not tailored to Plaintiff’s actual legal expenses. On this basis, the court awarded $2,500 in sanctions against Defendant in addition to Plaintiff’s attorney fees and costs.

Hutson v. Fed. Express Corp., ___Fed. App’x.¬¬¬___, 2018 WL 2435537 (6th Cir. May 30, 2018).

Cheri Ann Hutson (“Plaintiff”) sued her employer, Federal Express Corp. (“Defendant”) alleging that Defendant discriminated against her due to gender. As evidence of this discrimination, Plaintiff alleged that Defendant denied her a promotion because of her gender. At trial in the district court, the jury found for Defendant and thereafter Plaintiff appealed to the Sixth Circuit requesting a new trial. Eight employees applied for the promotion at issue; seven men and Plaintiff. Plaintiff was selected for an interview; three men did not receive an interview. Plaintiff alleged that the interview process was a pretext for Defendant’s discrimination. However, the testimony of Defendant’s interview team did not indicate that Plaintiff was discriminated against, nor did it indicate that any member of the interview team was sexist or misogynistic. Accordingly, the Sixth Circuit affirmed the decision of the district court.

Submitted by:
Jessica B.K. Pask
Miller, Canfield, Paddock & Stone, P.L.C.
150 W. Jefferson, Suite 2500
Detroit, Michigan, 48226
pask@millercanfield.com  

Seventh Circuit

Carleton Harris v. Allen County Board of Commissioners, 890 F.3d 680 (7th Cir. 2018).

The plaintiff sued, the Allen County Board of Commissioners for violations of the Americans with Disabilities Act arising out of his termination, when medical restrictions related to a work-related injury prevented him from returning to his previous position and he could not successfully find other employment with the County. The district court granted summary judgment in favor of the Allen County Board of Commissioners after determining the Board was not Plaintiff’s employer. The Court of Appeals upheld the district court’s grant of summary judgment. In so holding the Seventh Circuit agreed that Plaintiff did not prove the Board sufficiently controlled his employment to qualify as his direct or indirect employer. Under Indiana’s statutory scheme, the Board Commissioners had little, if any, authority to control Plaintiff’s employment. Instead, the control of Plaintiff’s hiring, firing, day-to-day duties, and salary was statutorily delegated to the Allen Superior Court. The Board was given only the statutory ministerial duty to pay certain expenses and Plaintiff presented no evidence that the Board had the ability to terminate or discipline him if his performance evaluation was poor.

Quinn R. Heath v. Indianapolis Fire Department, 889 F.3d 872 (7th Cir. 2018).

The Plaintiff sued the Indianapolis Fire Department, claiming that the Department denied his application to become a firefighter in retaliation for his father’s False Claims Act complaint. The district court granted summary judgment in favor of the Fire Department on Plaintiff’s retaliation claim, determining that the False Claims Act’s anti-retaliation provisions do not cover job applicants or prospective employees. The Court of Appeals upheld the district court’s grant of summary judgment, but on other grounds. The Seventh Circuit found that even assuming that the meaning of “employee” under § 3730(h) of the False Claims Act is broad enough to encompass job applicants or prospective employees, there were no facts from which a jury could conclude that Plaintiff was retaliated against because of his father’s qui tam suit. Under a local ordinance governing the Department’s hiring, an academy class is to be filled in rank order, starting with the top candidate on the list. Then, the fire chief can exercise discretion to fill the remaining twenty percent of the class. Plaintiff could not demonstrate based on his academy ranking that he would have been hired as an automatic or discretionary selection. Plaintiff was ranked, at best, five spots too low to receive an automatic selection to an academy class. And every discretionary pick in both classes had more markers than Plaintiff, consistent with the Department’s policy for discretionary selections. Thus, Plaintiff failed to present any evidence that his father’s qui tam suit was even a motivating factor in the decision not to hire Plaintiff.

Lorenzo Davis v. City of Chicago, 889 F.3d 842 (7th Cir. 2018).

Plaintiff, a supervisor for Chicago’s Independent Police Review Authority, sued his employer, the City of Chicago, for violating his First Amendment Rights after he was terminated for refusing to change his findings in a number of investigations into police misconduct. The district court dismissed Davis’s claim, after determining that Plaintiff’s refusal to change his reports was not protected speech under the First Amendment. The Court of Appeals upheld the district court’s dismissal. In so holding, the Seventh Circuit reiterated that for a public employee to show that his speech is protected under the First Amendment, s/he must demonstrate that s/he made the speech as a private citizen, the speech addressed a matter of public concern, and his/her interest in expressing that speech was not outweighed by the state’s interests as an employer in ‘promoting effective and efficient public service.’ Whether an employee speaks as an employee or a citizen depends on whether the speech was made pursuant to his or her official duties. Because Plaintiff’s refusal to change the reports was pursuant to his job duties, he spoke as a public employee rather than a private citizen. His speech, therefore, fell outside of the First Amendment’s scope.

Webb v. Financial Industry Regulatory Authority, Inc., 889 F.3d 853, 859 (7th Cir. 2018).

Plaintiff, a former executive with a securities firm, challenged his termination in the Financial Industry Regulatory Authority’s (“FINRA”) arbitration forum pursuant to the terms of his employment agreement. FINRA also required Plaintiff to sign an arbitration agreement. Prior to the arbitrator entering a final decision, Plaintiff withdrew his claim. Plaintiff then sued FINRA in the Circuit Court of Cook County, Illinois, alleging that FINRA breached its contract to arbitrate his employment dispute. FINRA removed the dispute to federal court. The district court held that FINRA was entitled to arbitral immunity and dismissed the suit. The Court of Appeals independently raised a jurisdictional challenge and vacated the district court’s judgment for lack of jurisdiction with instruction to the district court to remand the case to state court. The Seventh Circuit Court of Appeals held that diversity jurisdiction did not exist, as the amount in controversy did not exceed $75,000. In so holding, the Seventh Circuit Court of Appeals found that the complaint satisfies the amount in controversy requirement only if Illinois law permitted the Plaintiff to recover his legal expenses from the underlying arbitration, the present suit, or both. The Court concluded that while Illinois law permits the recovery of legal fees as damages in limited circumstances, those circumstances were not present in this case. In addition, because Plaintiff’s suit against FINRA was a state-law contract claim for breach of an arbitration agreement, federal question jurisdiction did not exist.

Submitted by:
Kathleen A. Barrett
Attorney At Law
312.795.3262
kabarrett@littler.com
321 North Clark Street, Suite 1000
Chicago, IL 60654

D.C. Circuit

Drielak v. Pruitt, 890 F.3d 207 (D.C. Cir. 2018).

In Drielak v. Pruitt, the D.C. Circuit affirmed the trial court’s grant of summary judgment in favor of the federal government agency employer, holding that the employee had failed to timely exhaust his administrative remedies with respect to the bulk of his claims, and that the claims that were exhausted did not involve adverse employment actions.

The employee’s claim largely revolved around his allegation that his unsuccessful applications for numerous open positions within the agency were the result of age discrimination. However, the court found that this claim had not been timely exhausted because the employee had not contacted an EEO counselor at his agency within 45 days of the alleged discriminatory acts as required by federal employment regulations. The court declined to extend the deadline due to the employee’s ignorance because the employee was on notice of the alleged discrimination each time that he knew he had been passed over in favor of a younger applicant.

As to the employee’s timely claims, the court held that they did not involve adverse employment actions. The court analyzed the employee’s contention that he had been disinvited from meetings and had some of this subordinate employees reassigned, and found that these changes did not significantly affect the employee’s employment.

International Longshore & Warehouse Union v. National Labor Relations Board, ___ F.3d ___, 2018 WL 2406295 (D.C. Cir. May 29, 2018).

In International Longshore & Warehouse Union v. National Labor Relations Board, the D.C. Circuit reviewed a dispute between two rival unions, and affirmed the NLRB’s ruling that the successor union had committed an unfair labor practice by accepting recognition from the employer where the predecessor union’s bargaining authority had been wrongfully terminated.
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The two rival unions, ILWU and IAM, represented West Coast port workers. The employer had a collective bargaining agreement with ILWU, but when it won a contract requiring the use of IAM labor, it formed a subsidiary to perform the contract, which subsidiary entered a collective bargaining agreement with IAM. Years later, the various contracts performed by the employer and its subsidiary were consolidated, and the employer’s bid was selected over the subsidiary’s due to a difference in price attributable to labor and benefit costs. The subsidiary then shuttered its operations and laid off all of its employees, though more than 75% of the employees were immediately re-hired by the employer to perform the same jobs they had previously performed for the subsidiary. The re-hired employees were required to become ILWU members. The subsidiary refused to bargain with IAM regarding the termination, arguing that it did not control its cessation in operations due to the loss of the contract.

IAM filed an unfair labor practice charge against ILWU, the employer, and the subsidiary. The employer and subsidiary settled the claims against them, leaving the dispute as one between the two unions. The court noted that under the NLRA, a union commits an unfair labor practice where it exercises exclusive bargaining authority it does not have or causes an employer to require employees to become members of a union that does not represent the bargaining unit. Although the employer had settled and was no longer part of the case, the critical analysis turned on whether IAM remained the appropriate representative because the subsidiary’s decision to shut down operations without bargaining was improper.

Critical to the court’s holding was the fact that all parties had stipulated that the employer and subsidiary were a “single employer” for purposes of the NLRA. Based on that stipulation, the employer could not unilaterally divert work away from the IAM-represented subsidiary to its ILWU-represented operations without bargaining with IAM. Although an employer can make such decisions for independent economic reasons unrelated to labor relations, the court noted that the subsidiary had lost its contract due to its higher labor costs, which are a prime subject of bargaining. On this point, the court noted that the two employers had always been a single employer (thus distinguishing merger cases), the same employees continued to perform the same work, and the employer did not lose its client but merely shifted the contract from one part of its operation to another.

StaffCo of Brooklyn, LLC v. National Labor Relations Board, 888 F.3d 1297 (D.C. Cir. 2018).

In StaffCo of Brooklyn, LLC v. National Labor Relations Board, the D.C. Circuit affirmed an NLRB finding that and employer committed an unfair labor practice by discontinuing pension contributions upon the expiration of its collective bargaining agreement, and rejected the employer’s defense that the union had waived its right to bargain regarding the contributions.

The employer provided non-physician staff at a hospital. Under its collective bargaining agreement, the employer agreed to participate and contribute to the union’s pension plan. The plan document stated that the employer’s participation in the plan would terminate and employee service would no longer be credited upon the expiration of the collective bargaining agreement. After expiration of the collective bargaining agreement, the employer in reliance upon the plan document discontinued contributions, though it continued to employ four union employees for a period of several months.

Under the NLRA, an employer cannot make unilateral changes in existing terms and conditions of employment, but must bargain with the union about those changes. This rule continues to apply when a collective bargaining expires, as the employer is required to maintain the status quo until there is a new collective bargaining agreement, an impasse, or a waiver of bargaining rights by the union.

In this case, the employer primarily argued that the union had waived its rights. The D.C. Circuit rejected this argument. First, it distinguished the language of the pension plan from that in previous cases where it had found waiver. The court noted that, unlike the language here, the language in previous cases had expressly allowed the employer to cancel its obligations. Second, the court found that the union had met its obligation to timely request bargaining by requesting that the employer continue contributions. Finally, the court narrowly rejected the employer’s argument that the plan language made its compliance impossible, pointing out that the employer had not attempted to tender plan contributions and been refused.

Prime Healthcare Services-Encino, LLC v. National Labor Relations Board, 890 F.3d 286 (D.C. Cir. 2018).

In Prime Healthcare Services-Encino, LLC v. National Labor Relations Board, the D.C. Circuit upheld an NLRB ruling that the employer committed an unfair labor practice by discontinuing salary increases upon the expiration of its collective bargaining agreement.
The collective bargaining agreement in question was in effect from January 1, 2007 to March 31, 2011. Upon its expiration, the employer and union could not reach any agreement as to an extension or successor agreement. The collective bargaining agreement contained two provisions regarding salary increases. The first, Section 3, provided for all employees to receive specific increases on four specific dates, the last of which occurred in 2010 prior to the collective bargaining agreement’s expiration. The second, Section 5, provided for step increases on the anniversary of each employee’s hire date. Section 5 referred to Section 3 in two ways: first, it said that the anniversary increases were in addition to the Section 3 increases, and, second, it stated that the total salary increase for any employee could not exceed 9.25% in any year.

It was undisputed that Section 3 did not survive the expiration of the collective bargaining agreement because all of the increase dates had passed. However, the employer claimed that Section 5 also expired because it referred to Section 3. The court rejected this argument. First, it noted that, unlike Section 3, Section 5 conspicuously did not provide for the benefit to cease with the agreement’s expiration. The two provisions created distinct benefits that operated independently. Because there was no date certain for the raises in Section 5, and employees would continue having anniversaries after the agreement expired, the anniversary raises survived the agreement and could not be unilaterally terminated by the employer.

Local 58, International Brotherhood of Electrical Workers (IBEW), AFL-CIO v. National Labor Relations Board, 888 F.3d 1313 (D.C. Cir. 2018).

In Local 58, International Brotherhood of Electrical Workers (IBEW), AFL-CIO v. National Labor Relations Board, the D.C. Circuit considered a labor union’s challenge to an NLRB decision holding that the labor union’s policy requiring workers seeking to resign to appear in person at the union hall with picture identification was an unfair labor practice.

Under the Labor Management Relations Act, payments from an employer to a union are generally prohibited with an exception for the deduction of union dues pursuant to a written authorization from the employee. The NLRB has construed the National Labor Relations Act to protect an employee’s right to revoke prior authorizations. The NLRB’s case law distinguishes between policies restricting union members’ revocation rights and those constituting mere ministerial requirements.

The policy in question required a member seeking to resign his or her membership or revoke a dues deduction authorization to appear in person at the union hall with picture identification and a written request. The policy stated that if a member thought that personal appearance was an undue hardship, the member could contact the union hall to make alternative arrangements, but gave no examples of what alternative arrangements might be permitted.

The court upheld the NLRB’s finding that the policy was unduly burdensome to union members who lived or worked at a distance from the union hall, and was also unduly burdensome because some members seeking to avoid a face to face encounter with a union representative would be chilled from exercising their rights. The court also noted that the policy’s provision permitting alternative arrangements was ambiguous as to what arrangements would be accepted and as to whether the union had the ultimate discretion to determine if an arrangement was acceptable.

In so ruling, the court noted that not every procedural requirement will unlawfully burden members’ rights, but that the NLRB’s finding that the requirement in question was impermissible was reasonable.

Tramont Manufacturing, LLC v. National Labor Relations Board, 890 F.3d 1114 (D.C. Cir. 2018).

In Tramont Manufacturing, LLC v. National Labor Relations Board, the D.C. Circuit addressed the rights of a successor employer under National Labor Relations Board v. Burns International Security Services, Inc., 406 U.S. 272 (1972). The Burns case held that such employer’s are not required to adopt the collective bargaining agreement imposed by their predecessor, but instead can unilaterally set the rehired workers’ initial terms and conditions of employment pending the negotiation of a new collective bargaining agreement.

The employer in this case had elected that option after purchasing the assets of a bankrupt company and agreeing to rehire its workers and recognize their union. The employer set its unilateral employment terms out in an employee handbook, which contained a section providing that management could decide to implement a reduction in force and select the employees subject to the reduction. The employer and NLRB agreed that the handbook provision permitted the employer to implement the layoffs without bargaining, but disagreed on whether the employer was required to bargain over the effects of the layoffs.

The employer argued that the handbook’s layoff provision displaced any obligation to bargain over layoff effects. The D.C. Circuit typically applies a “contract coverage” standard in undertaking such an analysis, reasoning that if the union and employer enter a collective bargaining agreement covering a matter, there is no further obligation to bargain because the union’s and employer’s rights are fixed by the agreement. The court agreed with the NLRB, however, that such a standard is inapplicable to terms unilaterally imposed by a successor employer pursuant to Burns, because there is no bargained for contract.

The court also questioned the NLRB’s application of its preferred “clear and unmistakable waiver” analysis, which requires that a union contractually relinquish a bargaining right in clear and unmistakable terms. The court explained that it could not see how a waiver analysis would fit the scenario where an employer unilaterally implements employment terms. The court thus remanded the case to the NLRB to reconsider or fully explain its decision to apply the waiver analysis and also to address prior precedents identified by the employer.

Submitted by:
Jack Blum
Paley Rothman
4800 Hampden Lane 6th Floor
Bethesda, MD 20814
301-968-3415
jblum@paleyrothman.com