Biden Board vs. Trump Board: Here We Go Again! (Fourth Installment)

Last week, we provided you with the third 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 Fourth installment of our Client Alerts addresses “Contract Coverage” vs. “Clear and Unmistakable Waiver”; Contractual Past Practices Survive CBA Expiration; and Intermittent Strikes as Unprotected Activity.

The Fifth installment, which you can expect next week, will address Post-Certification Bargaining of Discharges and Suspensions; and Employment Arbitration May Lawfully Preclude Collective Claims. The Sixth Alert addresses Micro-Units and Unit Scope; and Withdrawal of Recognition and Re-establishment of Union Majority.

A. “CONTRACT COVERAGE” vs. “CLEAR AND UNMISTAKABLE WAIVER.”

In MV Transportation, Inc., the Trump NLRB overruled pre-Obama Board precedent when it abandoned the “clear and unmistakable waiver” standard applied to determine whether an employer’s mid-term change in a term or condition of employment is permitted by a collective bargaining agreement without further bargaining. 368 NLRB No. 66, slip op. at 4–5 (Sept. 10, 2019). In its place, the Trump Board adopted the “contract coverage” test, which permits an employer to act unilaterally, mid-term of the union contract, if its action is within the “compass or scope” of a contract provision, including through a narrow management rights clause. Id. at 5.

Under the “clear and unmistakable waiver” standard, an employer could only take mid-term unilateral actions if a collective bargaining agreement specifically codified an employer’s ability to take action as to a particular issue memorialized in the agreement. Id. at 2–3. For example, this could be accomplished through a fulsome management rights provision or by a provision specifically addressing a particular issue.

The employer in MV Transportation operated a “fixed-route, transit system,” and its agreement with its bus drivers’ union permitted it “the right to issue, amend and revise policies, rules and regulations,” including disciplinary policies. The employer, mid-term of the union contract, implemented a revised “light duty” policy and revised disciplinary policy on “safety violations,” (e.g., failure to adhere to route schedules, failure to assure that all passengers exited the bus at the end of a route, and use of the “DriverCam” that recorded driving behavior). The union contended that the management rights clause was not sufficiently specific to constitute a “clear and unmistakable waiver” of the employer’s obligation to bargain before implementing new rules and penalties. The Trump Board decided that each of these policies fell within the scope of the management rights clause and, accordingly, the employer had not violated its duty to bargain under the National Labor Relations Act (“NLRA”). Id.at 15–19.

In light of the significance of this doctrine and the long-standing nature of the precedent overturned, the Biden Board may return to the “clear and unmistakable waiver” standard early in its tenure. Note, however, that the “contract coverage” doctrine is favored by the United States Court of Appeals for the District of Columbia Circuit, and this Court – which has plenary jurisdiction over NLRB decisions – has routinely denied enforcement to Board decisions that ignore the employer’s contract coverage defense.

B. CONTRACTUAL PAST PRACTICES SURVIVE CBA EXPIRATION.

In Raytheon Network Centric Systems, the Trump NLRB held that an employer’s unilateral action affecting terms and conditions of employment after contract expiration (and the consequent lapse of the management rights clause) requires bargaining only if it constitutes a “change” that differs significantly from the employer’s past practices. 365 NLRB No. 161, slip op. at 3–5 (Dec. 15, 2017). In Raytheon, the employer, after the contract had expired, modified employee healthcare costs and benefits consistent with similar changes it had made annually for the prior eleven years. Id. at 1.n

Raytheon overruled an Obama Board decision that prohibited all changes that an employer could make upon the expiration of its collective bargaining agreement. E.I. du Pont de Nemours, 364 NLRB No. 113, slip op. at 1–2 (2016). In E.I. du Pont de Nemours, the Obama Board ruled that an employer could not make unilateral changes to terms of employment once a collective bargaining agreement expired without bargaining over those changes, even if making such changes was consistent with past practice where the practices had resulted from application of a management rights clause. Id. at 28–30.

 The Biden Board may reinstate the E.I. du Pont de Nemours standard, requiring employers to bargain before making changes consistent with contractual practices after the expiration of the parties’ collective bargaining agreement.

C. INTERMITTENT STRIKES AS UNPROTECTED ACTIVITY.

It has long been Board law that a series of intermittent strikes is not protected by the NLRA. Walmart Stores, Inc., 368 NLRB No. 24, slip op. at 1 (July 25, 2019). In Walmart Stores, Inc., the Trump Board expanded this doctrine by holding that, where there is direct evidence that one or more employee strikes are part of a single “plan to strike, return to work, and strike again” to achieve the same purpose or goal, the strikes are intermittent and not protected concerted activity, from the onset of the first strike. Id. at 1. Where there is such direct evidence, no additional inquiry is required, even if the strikes are separated by several months. Id. at 1–2. The Trump Board went on to say that, even where there is no direct evidence of a “plan to strike, return to work, and strike again,” it will nevertheless examine “the surrounding circumstances to determine whether work stoppages were pursuant to” such a plan. Id. at 2. Note that work stoppages that are in response to distinctly separate employer actions or issues are not intermittent strikes pursuant to a plan to achieve the same goal and remain protected-concerted activity under the NLRA. Id.

Member McFerran dissented in Walmart Stores, and accused the majority of breaking with precedent to create a new and unwarranted, intermittent-strike standard. Id. at 4. McFerran asserted that unprotected, intermittent-strike activity occurs only when “the evidence demonstrates that the stoppage is part of a plan or pattern of activity which is inconsistent with a genuine strike or genuine performance by employees of the work normally expected of them by the employer.” Id. She asserted further that such a condition arises only in two circumstances: (1) when recurring strikes are deliberately calculated to harass the company into a state of confusion; and (2) when employees, repeatedly strike, yet avoid assuming the status of strikers—such as by remaining on the job, while refusing to follow an established work schedule. Id. In essence, under the McFerran analysis, there would be no unprotected, intermittent strike unless and until a series of strikes has first occurred: an initial strike cannot be intermittent and unprotected.

If the Biden Board overturns the decision in Walmart Stores, it would be more difficult to show that recurring strikes are intermittent so as to lose the protection of the NLRA. Member McFerran continues on the Board and her dissent is a ready, likely blueprint for a Biden-appointed majority to overrule Walmart Stores.

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