On May 29, 2018, the D.C. Circuit asked the NLRB to explain – and justify – why it used a “clear and unmistakable waiver” standard when dealing with a Burns successor setting initial terms and conditions of employment, possibly offsetting its duty to bargain with a union in certain situations. As such, the court partially vacated an April 2017 Board decision holding that a successor employer, Tramont Manufacturing, LLC, violated the Act by laying off 12 workers without first notifying the employees’ union or bargaining over the effects of this layoff decision.

In 2014, Tramont, after acquiring the assets of a bankrupt company, decided to hire many of the predecessor employees and recognize the union, thus becoming a Burns successor. Tramont exercised its legal right as a Burns successor to set initial terms and conditions of employment by issuing an employee handbook that included a section covering layoffs. Then, in 2015, Tramont issued layoff notices to 12 employees without first notifying the union. The union attempted to bargain over the layoffs’ effects, but Tramont refused, which led to the subsequent filings of unfair labor practice charges with the NLRB.

In its ruling, the Board held that Tramont, in not notifying the union of these layoffs and refusing to bargain over its effects, violated the Act. In analyzing the case, the Board rejected Tramont’s argument that the “contract coverage” standard governed the lawfulness of this action and instead applied its “clear and unmistakable waiver” standard. Tramont appealed the decision.

Now, the D.C. Circuit has asked the Board to clarify and explain its use of the “clear and unmistakable waiver” standard when analyzing the bargaining obligations of a Burns successor in relation to the initial terms and conditions it is legally entitled to set. But, notably, the D.C. Circuit did not actually seem convinced that Tramont’s “contract coverage” standard should apply in place of the Board’s “clear and unmistakable waiver” standard:

Where…an employer seeks release from its statutory obligations on the basis of initial employment terms it has itself drafted… it would be perfectly reasonable for the Board to decide as a policy matter to construe those terms under a standard other than the one that would apply to the terms of a bargained for agreement.

Similarly, besides asking for an explanation, the court also opined on the soundness of the Board’s use of a “clear and unmistakable waiver” standard in this context. The court stated that it did not “see how employment terms unilaterally imposed by an employer could ever effect a waiver of bargaining rights by the union” and that “framing that standard in terms of waiver is far from intuitive.” Simply put, the court wants the Board to show their work and further explain why it applied this standard.

Lastly, even if the NLRB abandons its waiver standard in this context on remand, the court noted the Board may still decide that unilaterally imposed employment terms should be narrowly construed, thus leaving Tramont liable for violations under the Act. In this instance, the court asked the Board to respond to Tramont’s position that this outcome would counter Board precedent from 2001 that held a Burns successor did not have a bargaining obligation over the rate of pay offered to its new employees as part of initial terms and conditions it imposed.

In sum, whatever standard the Board decides to apply to the question of how far a Burns successor’s initial employment terms displace the duty to bargain with a union, it must clearly explain its reasoning for applying such standard. More significant, however, this decision will help both management and labor bars as employers and unions will better understand what conduct is legal and not legal under the established, but still evolving, successorship doctrine.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

This past Monday, April 30, marked the conclusion of a weeklong strike conducted by Columbia graduate students at the University’s campus. Timing, as people say, is sometimes everything – especially in an ongoing labor dispute – and here these graduate students scheduled a strike for the last – and busiest – week of the semester.

As such, the strike was expected to be problematic for both professors who rely on graduate students to teach classes, perform research, and grade papers and exams, and for undergraduate students who attend these classes and anticipate receiving grades in a timely fashion. Indeed, there is no denying that the strike was at least somewhat disruptive as reports indicated that several hundred students and professors either moved classes off campus or cancelled them altogether. This, coupled with the fact that the turnout for the strike was greater than expected, is something the union likely considers a victory (in addition to the outside support received from the likes of President of Ireland Michael Higgins, U.S. Congressman Jerry Nadler, and Sex and the City alumna turned NY gubernatorial candidate Cynthia Nixon). In fact, according to an article by the Columbia Daily Spectator (the weekly student newspaper of the University), union organizers and graduate student leaders have already pledged to strike again at some point in the next academic year and have even discussed possible public demonstrations during graduation ceremonies.

Still, the University did not blink and it proceeded with business as usual over the course of the strike. However, as explained in a prior blog post by my colleagues, the University is still currently waiting – and likely hoping – for the graduate students’ union (Graduate Workers of Columbia-United Automobile Workers) to file unfair labor practice charges against it for refusing to bargain over an initial contract. This would then start a litigation and appeals process before the Board and federal court of appeals on the issue of whether graduate students are statutory employees under the Act and, perhaps, even lead to a Supreme Court decision that would settle this matter once and for all. But, doing all of this takes a lot of time and money and that, as well as the fear of an adverse decision, are likely to blame for the union’s failure to file any ULP charges.

Moving forward, unless the University changes its tune and decides to start bargaining with the union (which, at this point, there is a better chance of the Jets winning the Super Bowl!), do not be surprised if similar actions are undertaken by these graduate students down the road. All of this, however, may end up being inconsequential if the proper case comes before the Republican-controlled NLRB and the 2016 Columbia University Board decision that started this mess is overturned. But, with more and more graduate student unions across the country withdrawing their petitions in order to avoid becoming such a vehicle for overturning precedent, it is unclear exactly when this will happen.

Nevertheless, good things do come to those who wait, and ultimately I believe Columbia University – along with the several other private institutions across the country refusing to bargain with their respective graduate student unions – will see the fruits of their labor rewarded when this Board reverses course once again and finds that graduate students are not employees under the Act. Stay tuned.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

Racist comments, similar to other forms of employee misconduct (e.g., workplace violence or theft), usually result in termination. Anyone with an ounce of common sense knows this. The National Labor Relations Board, however, upheld an Administrative Law Judge’s prior decision declining to follow an arbitrator’s ruling and ordered Cooper Tire & Rubber Co. reinstate an employee, with back pay, after he was terminated for making racist statements on a picket line. This untenable Board decision was previously blogged about here. Fast forward to August 8, 2017, where a divided Eighth Circuit Panel, in a 2-to-1 ruling, upheld this NLRB decision.

The facts are straightforward: the Company, after failing to negotiate a new contract, locked out its employees and hired temporary replacement workers, many of whom were African-American, to resume operations during the lockout. As a result, the locked out employees began picketing. One night, picketer Anthony Runion (“Runion”) made racist comments aimed towards replacement workers travelling in a van across the picket line. Specifically, Mr. Runion yelled, “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.” After the resolution of this labor dispute, the Company refused to reinstate Mr. Runion because of these racist comments. The union subsequently grieved this matter and an arbitrator upheld the Company’s decision.

Picketing ImageThe split Court, in agreement with the Board, rationalized Mr. Runion’s comments by relying on case law that tolerates racist conduct by employees if done during a labor dispute and, significantly, is unaccompanied by any threats or violence. The Court, in deferring to the Board’s illogical precedent protecting this type of action, agreed that Mr. Runion’s comments were:

[N]ot violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.

The Court also rejected the Company’s reliance in terminating Mr. Runion “for cause” under Section 10(c) of the Act as it differentiated between “for cause” and “just cause” when dealing with a “prohibited reason” and “loss of employment stem[ming] directly from an unfair labor practice.” The Court deferred to the Board’s rationale by holding “that ‘Runion was discharged for a prohibited reason—the protected activity of engaging in picketing.’ Since Runion was discharged for a ‘prohibited reason,’ Cooper did not fire Runion ‘for cause’ under Section 10(c).” Notably, the Court also found that the Board had not abused its discretion by disregarding the arbitrator’s decision as the NLRB is free to overturn arbitrator rulings that are “clearly repugnant” to the Act.  Critically, the Court held that restraining picket line speech such as Mr. Runion’s would fly in the face of “well-established precedent giving greater protection to picket-line misconduct.”

The Court here had the opportunity to denounce racist comments such as Mr. Runion’s, but instead, decided to affirm this behavior when arising in the midst of a labor dispute. Employers, specifically in the Eighth Circuit, must somehow strike a balance between condemning racist comments made by its employees and respecting employees’ rights during lockouts and strikes. This task, however, has become much harder after this decision and I, like many others on the management-side bar, am in complete agreement with Judge C. Arlen Beam, the lone dissenter, when he stated, “the Board repeatedly broadens the protections for such repulsive, volatile, incendiary, and heinous activity time and again in cases such as these.”

In the end, it is readily admitted that protected activity such as picketing can lead to heated words, insults and, generally speaking, an apprehensive and tense environment. This industrial reality, however, should not give employees a pass on racist and discriminatory remarks. An employee can utilize their Section 7 rights and advocate for their side without spewing dangerous and bigoted comments at a specific group. This decision, like several others the Board has issued, downplays this commonsense notion and condones racist behavior as long as it occurs on a picket line. No employer should be forced to tolerate and employ individuals who engage in such behavior. Sadly, as attainable as this feat may seem (i.e., an employer should be able to terminate a racist employee), that is not the world we live in today.

Accordingly, employers should continue to seek legal counsel before disciplining employees for any conduct related to a labor dispute – picketing, lockouts, or strikes – or any action an employee takes concerning their terms and working conditions.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.