Law Offices of Stanley E. Niew, P.C.
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LABOR & CONSTRUCTION LAW UPDATES
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FEBRUARY 2020
Inside This Issue
1. National Labor Relations Board Issues Final Rule Which Changed Election Procedures
2. NLRB Limits Definition of “Protected Concerted Activity”
3. In FMLA Action Employer’s Intent is not a Defense To the Claim
4. The CDC Issued Interim Guidance for Business and Employers to Plan and Respond to Coronavirus Disease
National Labor Relations Board Issues Final Rule Which Changed Election Procedures
On December 18, 2019, the NLRB issued a new election procedure which was designed, in part, to change the “quickie” election rules which were adopted during the prior administration. Some changes are:
1. The pre-election hearing will generally be scheduled to open 14 business days from notice of the hearing, and regional directors will have discretion to postpone the opening of the hearing for good cause. Under the prior rules, pre-election hearings were generally scheduled to open 8 calendar days from the notice of hearing. The additional time will permit parties to more easily manage the obligations imposed on them by the filing of a petition and to better prepare for the hearing, thus promoting orderly litigation. The additional time is also necessary to accommodate changes to the Statement of Position requirement (summarized below); in conjunction with those changes, the additional time will also help facilitate election agreements and further promote orderly litigation.
2. Employers will now be required to post and distribute the Notice of Petition for Election within 5 business days after service of the notice of hearing. The prior rules required posting and distribution within 2 business days. The additional time will permit employers to balance this requirement with the other obligations imposed on them by the filing of a petition, and--in conjunction with the additional time between the notice and opening of the hearing--will guarantee that employees and parties have the benefit of the Notice of Petition for Election for a longer period of time prior to the opening of the hearing than is currently the case.
3. Non-petitioning parties are now required to file and serve the Statement of Position within 8 business days after service of the notice of hearing, and regional directors will have the discretion to permit additional time for filing and service for good cause. Non-petitioning parties were formerly required to file and serve the Statement of Position 1 day before the opening of the pre-election hearing (typically 7 calendar days after service of the notice of hearing).
4. The petitioner (union) will also be required to file and serve a Statement of Position on the other parties responding to the issues raised by any non-petitioning party in a Statement of Position. The responsive Statement of Position will be due at noon 3 business days before the hearing is scheduled to open (which is also 3 business days after the initial Statement(s) of Position must be received). Timely amendments to the responsive statement may be made on a showing of good cause. The prior rules required the petitioner to respond orally to the Statement(s) of Position at the start of the pre-election hearing.
5. Although acknowledging that the primary purpose of the pre-election hearing is to determine whether there is a question of representation, disputes concerning unit scope and voter eligibility--including issues of supervisory status--will now normally be litigated at the pre-election hearing and resolved by the regional director before an election is directed. The parties may, however, agree to permit disputed employees to vote subject to challenge, thereby deferring litigation concerning such disputes until after the election. The prior rules provided that disputes “concerning individuals' eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted.''
While these changes may seem minor, the changes do permit employers more time to respond to petitions for an election.
NLRB Limits Definition of “Protected Concerted Activity”
On January 11, 2019, the National Labor Relations Board (Board) issued a decision in Alstate Maintenance in which it limited what qualifies as concerted activity. The Board stated:
In relevant part, Section 7 of the National Labor Relations Act (Act) gives employees the right “to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (emphasis added).
Thus, for employees to enjoy the protection of the Act under the language of Section 7 italicized above, two elements must be satisfied: the activity they engage in must be “concerted”, and the concerted activity must be engaged in “for the purpose of . . .mutual aid or protection.”
The leading case was Meyers Industries decided in 1985 where the Board held “to find an employee’s activity to be concerted, we shall require that it be engaged in, with or on the authority of other employees, and not solely by or on behalf of the employee.” With the passage of time the Meyers decision was watered down, but not overruled. The Alstate Maintenance case involved a group of skycaps, whose job was to assist arriving passengers with their luggage outside the terminal, and most of their compensation comes from tips. One skycap spoke in the presence of other skycaps and a supervisor and said “we did similar jobs a year prior and we didn’t receive a tip for it” referring to a soccer team’s equipment. The question for the Board is did the word “we” refer to concerted activities or group activities. There was no evidence that tipping habits of soccer players or anyone else was a topic of conversation among the skycaps. However, at the hearing the employee who made the comment about “the tip” testified it was “just a comment” and not aimed at changing the employer’s policies.
The Alstate Maintenance Board spoke of group meeting settings where a concerted objective may be inferred from the circumstances, i.e., announcing a new break policy or any meeting affecting a term or condition of employment. The Alstate Maintenance Board cautioned that not all complaints in a group setting is concerted activity per se, the reason being that the gripe or complaint may be spoken on behalf of the employee him or herself, not leveled on behalf of the group. The Board said:
. . .relevant factors that would tend to support drawing such an inference include that (1) the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment; (2) the decision affects multiple employees attending the meeting; (3) the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely to ask questions about how the decision has been or will be implemented; (4) the speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and (5) the meeting presented the first opportunity employees had to address the decision, so that the speaker has no opportunity to discuss it with other employees beforehand.
The Board concluded that the tipping comment did not relate to the skycaps’ wages, hours and other terms or conditions of employment and was not for the purpose of mutual aid or protection.
In conclusion, the Alstate Maintenance decision is a departure from recent Board precedent finding that virtually everything is concerted activity.
In FMLA Action Employer’s Intent is not a Defense To the Claim
Marsh USA was sued in federal court in the Northern District of Illinois in which one count alleges that the employer fired an employee on the mistaken belief that the employee was ineligible for Family Medical Leave Act (FMLA) protection.
Under the FMLA, an eligible employee suffering from a serious health condition is entitled to 12 workweeks of leave during each 12-month period. The FMLA “makes it unlawful for an employer to interfere with an employee’s attempt to exercise FMLA rights or to retaliate against employees who exercise their FMLA rights.”
Plaintiff alleges that Marsh violated the FMLA’s retaliation prohibition by terminating her for exercising her FMLA rights. To prevail on a retaliation claim under the FMLA, a plaintiff must show that (1) she/he engaged in a protected activity; (2) her/his employer “took adverse action” against her; and (3) “the protected activity caused the adverse action.”
Marsh further argues that, regardless of whether Plaintiff was approved for FMLA leave at the time of her termination, she cannot establish the third element of her retaliation claim because there is no evidence that Marsh terminated her for taking FMLA leave. Rather, Marsh asserts, it fired Plaintiff for violating the company’s leave policy by “failing to submit her medical documentation in support of her need for leave after September 30, 2017, or return to work.”
The Marsh court said an employer is not entitled to summary judgment where it based its motivation for terminating an employee, “or at least a key component of it,” on a mistaken belief that the employee was ineligible for the FMLA’s protections.
Thus, if an employer mistakenly believed it followed the law in terminating an employee, the employer is at risk of paying damages to an employee.
The CDC Issued Interim Guidance for Business and Employers to Plan and Respond to Coronavirus Disease
The Center for Disease Control recommends in part:
- Encourage sick employees to stay home
- Separate sick employees
- Emphasize hand hygiene
- Perform routine environmental cleaning
- Advise employees what steps to take before traveling
You can read the interim guidance by going to the CDC website: www.cdc.gov/coronavirus/2019-nCoV
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