Biden Board vs. Trump Board: Here We Go Again! (Fifth Installment)
Last week, we provided you with the fourth of our six analyses of 14 decisions of the Trump Board that the soon-to-be Biden Board majority likely will seek to overrule in a rush to return to the more pro-union stance of the former Obama Board.
This Fifth installment of our Client Alerts addresses Post-Certification Bargaining of Discharges and Suspensions; and Employment Arbitration May Lawfully Preclude Collective Claims.
The Sixth Alert, which you can expect to receive next week, will address Micro-Units and Unit Scope; and Withdrawal of Recognition and Re-establishment of Union Majority.
A. POST-CERTIFICATION BARGAINING OF DISCHARGES AND SUSPENSIONS.
In 800 River Road Operating Company, LLC, the Trump NLRB held that an employer may impose discipline upon an employee, such as suspension, demotion, or termination, unilaterally – without first bargaining – after union certification but before an initial collective bargaining agreement is entered into. 369 NLRB No. 109, slip op. at 2–5 (June 23, 2020). The employer may implement such discipline as long as it is similar to the employer’s past disciplinary policy or practice. Id. at 29–30.
800 River Road overturned an Obama Board decision that required the employer to provide the recently certified union with notice and an opportunity to bargain before imposing discipline that resulted in loss or diminution of employment. Total Security Management Illinois 1, LLC, 364 NLRB No. 106, slip op. at 32 (2016).
The Biden Board may return to the Total Security rule, inhibiting an employer’s ability to discipline its employees once they are represented by a union and before a collective bargaining agreement has been negotiated.
B. EMPLOYMENT ARBITRATION MAY LAWFULLY PRECLUDE COLLECTIVE CLAIMS.
In Cordúa Restaurants, Inc., the Trump NLRB was applying, for the first time, the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which ruled that class and collective action waivers in mandatory arbitration agreements do not violate the National Labor Relations Act (“NLRA”). The Trump Board ruled that an employer may implement a mandatory arbitration agreement containing a class and collective action waiver and requiring one-on-one arbitration after employees opt-in to a collective action lawsuit; and that an employer may inform employees that refusal to execute a mandatory arbitration agreement will result in discharge. 368 NLRB No. 43, slip op. at 1 (Aug. 14, 2019), enforced on other grounds, No. 19-60630, 2021 U.S. App. LEXIS 669 (5th Cir. Jan. 11, 2021).
In the same case, the Trump Board also held that the filing of a class or collective action lawsuit about wages, hours, or other terms and conditions of employment constitutes protected concerted activity under the NLRA, and it is a violation of the NLRA to discipline or discharge employees for initiating the lawsuit itself. Id. at 1–2. In sum, an employer is required to enforce a mandatory arbitration agreement by seeking dismissal of the employees’ lawsuit in court; it may discharge an employee only if he/she refused to sign an arbitration agreement.
The Biden Board can be expected to conclude that the Cordúa decision is over-broad, and it may attempt to recast Epic System’s application and prohibit the implementation of a mandatory arbitration provision in “retaliation” against the commencement of a collective or class action lawsuit.
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