Friday, September 21, 2018
Currently, two big strike events are in the news. One has already occurred and the other may be on the horizon.
First was a nationwide strike on Tuesday by some McDonald's employees. This strike was unusual for numerous reasons. One is that we don't usually see low-wage retail workers striking, although the Fast Food 15, OUR Walmart, and other similar efforts have begun to change that norm in recent years. As a result, what stands out most to me was the object of the strike. It wasn't the traditional bread & butter workplace issues like pay, benefits, and hours. Instead, the workers were striking to protest sexual harassment and to demand that McDonald's do more to address the issue. What this strike may be telling us is that there are new norms developing. Norms in which retail workers are more willing to strike and willing to do so for issues that aren't necessarily traditional, but are still vitally important, especially in the current #MeToo environment.
The second, potential, strike is far more traditional. It involves the steel industry, where steelworkers are threatening to strike United States Steel and ArcelorMittal if contract negotiations don't result in raises and other benefits that reflect those company's improving financial footing. An interesting twist is that part of the steelworkers' argument is that after taking many years of wage freezes, they want to share in the improving fortunes brought on in part by the new tax cuts and steel tariffs. An entirely predictable situation, but one that I expect will get settled because those companies won't want production halted.
Thursday, September 13, 2018
In case all of the prior signals weren't enough, the NLRB has now formally announced a "new" proposed joint-employer standard. Although it won't be released until tomorrow, the Board's announcement makes clear that it intends to return to the pre-Browning-Ferris standard. The Board describes this new/old standard (which the Browning-Ferris Board argued was itself a change from an earlier standard) as follows:
Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.
This is a substantial change from the Browning-Ferris standard, which would allow a joint employment finding if employers share governance of essential terms and conditions of employment. Among the factors used for this determination are whether an employer has exercised direct control over terms and conditions of employment indirectly or whether it has reserved the authority to exercise control.
Obviously, the NLRB has to go through the notice and comment period, but the chance of the current Board majority (Member McFerran is dissenting) changing its mind about going back to something like the pre-Browning Ferris standard is about the same chance as my computer spontaneously levitating.
On one level this is just part of the normal ebb and flow that we see with new administrations. What I find more interesting is that the current Board seems to be using rulemaking as a means to make its changes harder to reverse. There's nothing inherently wrong with this--that's what most agencies do, after all--but it represents a significant shift from the Board's usual practice of using decision-making for substantive rules. I'm actually ambivalent about this as a general matter, but I'll be curious to see whether concerns about courts reversing Board rules more frequently than case decisions plays out.
Tuesday, September 11, 2018
The NLRB announced today that it is inviting briefs in Loshaw Thermal Technology and Casale Industries. Both cases involve a lesser-know rule under the NLRA (at least if you're not involved with construction union very often). Section 8(f), among other things, allows an employer and construction union to establish a bargaining relationship without a showing that the union has majority support (this reflects the reality that construction jobs are by their nature usually temporary). This provision essentially establishes a presumption of majority support, albeit one that can be challenged by a valid decertification petition.
In its 2001 Staunton Fuel decision, the Board concluded that parties could transform their bargaining relationship from Section 8(f) to Section 9(a)--the more typical mean of recognition, which usually involves a showing of majority support and is harder to challenge--through a collective-bargaining agreement that clearly states that the union said that it could show that it had majority support. It is that rule that the Board is currently questioning in Loshaw Thermal.
In Casale, the Board is also questioning the time period during which a construction union's Staunton 9(a) recognition can be challenged. Casale stated that an employer only had six months after the collective-bargaining agreement to argue that the union actually lacks majority support.
Wednesday, September 5, 2018
Michael Yelnosky has just published on SSRN an new essay essay, "Labor Law Illiteracy.” The abstract:
Labor law, both as an academic discipline and a subject of public consciousness, is in decline. The Supreme Court’s recent decisions in Epic Systems v. Lewis and Janus v. AFSCME reflect a notable consequence of this decline – what I am calling labor law illiteracy. The majority in Epic Systems seems to misunderstand one of the basic principles of the National Labor Relations Act, and the majority in Janus based its decision, in part, on a simplistic and one-sided view of the justifications for public sector labor law and collective bargaining.
I'm sure many readers will be nodding their heads along with this one. So check it out.
Wednesday, August 15, 2018
The NY Times has a story on Muriel Pénicaud, the French labor minister who has been leading the charge of reforming France's labor regulations. Macron, the French President, has been trying to get reforms through for a while but has been largely stymied by protests (you've got to hand it to the French, their capacity to protest may exceed even their cooking talent). As a result, Pénicaud has been embarking on a long series of negotiations with unions and businesses. Stay tuned for what the final results may be.
Also--shameless plug warning--if you want to compare France's legal and social welfare protections for dismissed workers, check out this article that I co-authored with Sam Estreicher, Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism, 92 North Carolina Law Review 343 (2014). We compared not only the laws as written, but also how they operate (e.g., average win rates, average/maximum/minimum awards) for twelve countries, including the U.S.
Tuesday, August 7, 2018
The AP has just called the Prop A vote in Missouri, with votes currently in favor 63%-37%. This ballot measure strikes down the legislature's attempt to make Missouri a right-to-work state. Especially so soon after Janus, this is a good night for organized labor.
Wednesday, August 1, 2018
It's appearing that e-mail is becoming yet another issue on which the NLRB's views flip-flop depending on the party in charge of the White House. Today, the Board announced that it was seeking input on whether to reverse Purple Communications, itself a reversal of the earlier Register-Guard, decision. I've written about the issue of employees' use of employer e-mail quite a bit and won't rehash it all here. However, I will note that the Court's recent interest in the First Amendment (see: Janus among other cases) adds an additional spin. As I recently noted, Member Johnson's dissent in Purple Communications made a First Amendment claim; I thought it very weak, but I wouldn't be surprised to see it resurface in a new opinion by the Board. That, and the return of Register-Guard's "I slept through my 1L Property class in law school" treatment of personal property law. Apparently, it's time to update my amicus brief from the Purple Communications litigation.
Thursday, July 19, 2018
That didn't take long. A week after Janus came down, the Purple Communications firm is trying to use the decision (as well as Becerra) to overturn the NLRB's rule in Purple Communications that permits employees in some instances to use employer e-mail for NLRA-related communications. This argument reflects part of Member Johnson's dissent in Purple Communications.
As I've written previously, I think the argument that it violates the First Amendment to allow employees to communicate about labor matters through employer email is ridiculous. The best rejoinder to this argument was the majority's analogy in Purple Communications that no one would think that a message sent via gmail represents the views of Google. And I see nothing in Janus or Becerra that suggests otherwise. The closest related claim to pass the smell test is the idea that requiring an employer to allow speech hostile to the employer on its own e-mail system is improper. I say it's close to passing the smell test because one can see how an employer would see that as unfair. But that doesn't mean there's any legal basis for the argument. The Court has required employers to let employees use their property for hostile speech for decades (think Republic Aviation) without any constitutional or statutory issues. That said, I guess we can't totally count this argument out given how the Court has been treating labor issues lately.
Hat Tip: Charlotte Garden
Wednesday, June 27, 2018
The Supreme Court has just released its decision in Janus v. AFSCME. I’m not typically the best predictor of what the Court will do, but even I had this one called from the moment Justice Gorsuch was confirmed. The Court, in a 5-4 decision by Justice Alito, overruled its own Abood decision to hold that public-sector union fees are unconstitutional. I won’t repeat how we got to this point (although you can start at my earlier post on the Janus oral argument, which has links on the aborted Friedrichs case, as well as our coverage of 2014’s Harris v. Quinn, in which Alito made clear where he wanted to go on this issue), but the upshot is that public-sector unions nationwide must now operate on an opt-in basis for all union contributions—even contributions that go to core collective-representation services. In other words, the free rider issue that exists for the private sector in right-to-work states now exists for all public-sector workplaces.
The basis for the decision is that dissenting employees’ have a 1stAmendment right not to pay any funds to the union representing them—even for collective bargaining and other work that goes to the benefit of all unit employees. This follows the dicta in Harris, but is a clear departure from the Court’s public-sector employment jurisprudence, which does not look favorably on individual employees' 1st Amendment claims. In particular, if this case didn’t involve unions, you would expect the Court to hold that concerns about dues paid to a third party are not matters of public concern. This result, to my mind, is the culmination of several related factors: in addition to the strong pro-business bent of this Court, we’ve seen public-sector unions becoming more powerful than their private-sector counterparts, while also becoming strongly aligned with one political party. This has occurred during a period of time in which political antagonism is on the rise and we’ve more jurists appear willing to join that battle. As a result, unions as a whole, but public-sector ones in particular, have been targeted both politically and legally. And they just took a massive loss at the Court today.
Janus, of course, is not the end (although some unions may feel like it right now). Here are some questions I have after the decision—please add more (or responses) in the comments:
- Will courts try to apply Janus to the private sector? There has been some loose language by the Court in the past that raises the possibility that court enforcement of union fee agreements is enough for state action, particularly in more highly regulated areas. The Court since then has been moving towards a more narrow interpretation of state action, but as Janus shows, that doesn't mean they won't make an exception when unions are involved. Indeed, in Janus, the Court stated that the line between chargeable and uncharitable expenses is "unworkable" (it's certainly difficult at times, but this seems a stretch). On the other hand, in its defense of overruling Abood, the Court in Janus stressed the difference between public- and private-sector collective bargaining and footnote 24 the Court described this state action argument as "more questionable" now then when Abood was decided. This could be considered a minor win for unions. See Joe Slater’s helpful article on this topic in which he argues persuasively that this holding should not apply to the private sector.
- Is this the beginning of the end for exclusivity? Up to now, American labor law has been built on the notion that unions act as the exclusive representative of all employees in a unit. I predict (see warning above) that Janus will usher in more challenges to exclusivity. This may include unions being more willing to explore members-only representation, as well as the NLRB at some point addressing whether the NLRA requires employers to bargain with minority unions. For instance, a bill has already been introduced in NY that would allow unions to decline to represent non-member employees for grievances and other matters, while also allowing them to provide insurance and other benefits only to members; other states (California and NJ) have recently enacted and/or are working on other pro-union measures. One limit to this, however, is that in Janus, the Court seemed to double-down on the notion that unions and public-sector employers cannot agreed to contracts that treat nonmember employees worse. That doesn't preclude members-only unionism, but it does serve as a reminder that there would be limitations to such representation.
- Related to the exclusivity issue--is this also the end of fair representation? Even before the Janus decision was announced, unions filed suit in state courts challenging the idea that they have a duty to fairly represent all unit employees. Now that Court has held that the Constitution precludes dissenting employees from paying for union representation, unions will argue in turn that it is unconstitutional to force them to expend time and resources representing employees who pay nothing. Janus gives some mixed signals. In one direction, the Court stated that unions' "duty of fair representation is a necessary concomitant of the authority that a union seeks when it chooses to be the exclusive representative." Thus, unions may have to seek to be members-only to push this argument. In the other direction, the Court seems to approve of arrangements in which union charge nonmembers for using grievance or arbitration procedures.
- While exclusivity and fair representation are weakened, will Janus usher in a strengthening of public-sector employees’ 1st Amendment rights? The language in Janus suggests so, as it now states that public-sector working conditions are matters of public interest that warrant more 1st Amendment protections. Despite that, however, the answer I think is “no.” Although it’s not defensible, I believe the Court will limit its broad 1st Amendment interpretation to cases brought against unions. Individual employees, I predict, will continue to face steep challenges raises these claims. Indeed, in Janus, the Court made a point of stressing that union speech is a public concern and it distinguished Pickering by stressing the difference between a union pushing for a wage increase and an individual employee--all of which seems to be a to distinguish individual employees' free speech claims. In addition, I doubt the Court will be as concerned with the 1stAmendment when unions challenge Section 8(b) limitations on their right to protest, picket, and boycott. See Charlotte Garden’s article on this.
- How badly will this hurt unions? We saw fairly steep declines in union membership following major changes in states like Wisconsin. Will Janus and its new opt-in requirement extend that affect nationwide? I suspect that, on average, public-sector unions will see a big hit, but that the effect will not be consistent everywhere. This is especially true given that some states have already made moves to add protections for public-sector collective bargaining in anticipation of Janus.
- On a minor note, while discussing the difficulty in challenging what's chargeable and what's not under Abood, the Court in Janus stressed the "substantial" costs in bringing an arbitration case to make such a challenge. It wasn't central to either case, but that's one of the exact arguments in Epic Systems (and the earlier Italian Colors) that the Court didn't seem concerned about.
- On a non-labor related note, the number of precedents overruled by the Court in the last couple of weeks is remarkable--and that's just the ones overruled explicitly. For whatever reasons, the Court this term has seemed more willing to break from its past to achieve the result it wants, and it will be interesting to see if that trend continues next term.
Friday, June 1, 2018
Some recent labor and employment law issues in the news:
- Well, it wasn't the big unit, but some employees at Boeing's South Carolina plant have voted to unionize. On Thursday, 178 technicians and inspectors voted (104-65) to be represented by the International Association of Machinists and Aerospace Workers union.
- The largest federal employees union, American Federation of Government Employees, is suing to stop new rules put in place by recent executive orders. The central target of the dispute is a new 25% cap on "official time" that union officials can spend on union business; the other orders encourage more terminations of federal employees and restrict agencies' ability to negotiate collective-bargaining agreements. The official time challenge is based on the Civil Service Reform Act provision that permits official time and the First Amendment. This latter claim may be difficult given the Davenport decision, although the union is making more of a discrimination argument based on the executive orders application only to work done on other employees' behalf rather than work that a union official does on his or her won behalf.
- Casino strike averted? Just hours ago, the Culinary Workers union reached a deal with Caesar's to avoid what was looking to be a massive strike in Las Vegas. Caesar's only employs about a quarter of the 50,000 workers who could potential strike, so nothings certain yet. But it does look like the strike threat is paying off for the union.
Wednesday, May 23, 2018
The NFL has just adopted a new policy on national anthem protests, which raises some potential labor law issues. As I understand the new policy, it implements three new features. First, it allows each team to establish its own policy on national anthem protests. The second feature, however, limits the first as it gives the NFL the power to fine any team if one of its players protests during the national anthem. The third feature also limits teams' ability to establish their own policy by eliminating the previous league-wide requirement that players must stay on the field during the anthem.
So what does this all mean? It appears that players who do not want to stand for the national anthem have at least two choices: stay in the locker room or take a knee during the anthem (or other types of protest). What happens to a player who takes the latter option depends on his team. At a minimum, the NFL will fine the team. But whether the individual player is disciplined depends on whether the team has established a policy barring such protests.
Labor law aficionados will see the potential NLRA issues here. The NFL owners established this new policy without discussing it with the NFLPA (players union). This raises some potential labor law problems. First, the new policy could violate the existing collective-bargaining agreement; indeed, the union said it was reviewing whether such a conflict exists. Second, by establishing a new policy without discussing it with the union, the NFL may have violated Section 8(a)(5) of the NLRA, which prohibits an employer from unilaterally implementing changes in work conditions without first bargaining with the union. The NFL is likely to argue that this duty to bargain isn't implicated because players have the option to avoid any penalties (i.e., adverse work actions) by staying in the locker room. That's a plausible argument, but it's not obviously a winning one because the union could respond that there has been a change in the terms of work, namely that players were previously required to stand on the sidelines during the anthem and could take a knee without penalty, while under the new policy that's no longer an option.
Stay tuned . . . .
Monday, May 21, 2018
The Supreme Court today issued its decision in Epic Systems, ruling for employers who, as part of mandatory arbitration clauses, require their employees to waive their right to class actions. This should come as a surprise to no one, as the case pitted the Court's hatred of class actions against the NLRA.
The 5-member majority decision followed a typical pattern in many respects, including a continuation of its ever-broadening reading of the Federal Arbitration Act's protection of arbitration agreements and a rejection of an argument to grant the NLRB Chevron deference. What's more surprising though was the majority's reading of the NLRA's Section 7. Although it was not required to do so, the Court essentially overruled long-standing NLRB precedent holding that Section 7 protected employees who join together in collective legal actions to advance their workplace conditions. The Court defended this conclusion by, among other things, saying that "Section 7 focuses on the right to organize unions and bargain collectively" and holding that Section 7's protection for "other concerted activities," "like the terms that precede it, serve to protect things employees 'just do' for themselves in the course of exercising their right to free association in the workplace, rather than 'the highly regulated, courtroom-bound ‘activities’ of class and joint litigation.'” I've taught labor law for many years and have never seen Section 7 described in this narrow of a fashion. Indeed, the Court oddly cites the famous Washington Aluminum case for the proposition that "§7 cases have generally involved efforts related to organizing and collective bargaining in the workplace, not the treatment of class or collective action procedures in court or arbitration." One may debate whether Section 7 was originally thought to encompass class actions, but describing Washington Aluminum as an "organizing and collective bargaining" case is nuts--that's the classic decision involving non-union collective action. It involved a walkout by non-union workers who were sick of severely cold conditions in their plant; there was no union on the scene, no attempt to organize a union, and no collective bargaining.
Justice Ginsburg's dissent does a thorough job of showing why Section 7 is much broader than the majority makes it out to be. Using history, the NLRA's text, and NLRB precedent she also emphasized that access to the legal enforcement was a key aspect of the new rights embodied in the NLRA. She finishes with this:
If these untoward consequences stemmed from legislative choices, I would be obliged to accede to them. But the edict that employees with wage and hours claims may seek relief only one-by-one does not come from Congress. It is the result of take-it-or-leave-it labor contracts harking back to the type called “yellow dog,” and of the readiness of this Court to enforce those unbargained-for agreements. The FAA demands no such suppression of the right of workers to take concerted action for their “mutual aid or protection.”
Given that this case will likely be followed shortly by a loss for public-sector unions in the Janus case, this term looks to go down as one that brought a major constriction of labor rights.
Sunday, April 1, 2018
Thanks to Mitch Rubinstein for sending word of Davids v. State, ____A.D. 3d____(NY App. Div. 2d Dep't. March 28, 2018), where a New York appellate court refused to dismiss a constitutional challenge to teacher tenure statutes. Basically, the claim is that it is too difficult to fire teachers and the tenure statutes violate the Education Article in the NYS Constitution. For Mitch's take on the case, see this post at his blog Teacher and New York Public Employee Lawyer.
Thursday, March 1, 2018
How does the NLRB typically do statutory interpretation? For her paper An Empirical Examination of Statutory Interpretation, forthcoming in the Minnesota Law Review, Amy Semet looked closely at the less than 2 percent of NLRB opinions issued from 1993 to 2016 in which the Board majority didn't just refer to prior case decisions, but itself explicitly engaged in some kind of statutory interpretation of the National Labor Relations Act.
Among other things, for the 121 cases in which NLRB majority opinions interpreted the NLRA “as a matter of first impression,” Semet reports the kinds of statutory-interpretation arguments that appeared (p. 31, tbl. 1):
|Case Type||Text-Partial||Text-Primary||Language Canons||Leg. History|
And here, from the paper abstract, on what Semet ultimately found:
Overall, I find no ideological coherence to statutory methodology. Board members switch between textualist or purposive methods depending upon the partisan outcome sought. Indeed, Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy and less on precedent or legislative history.
In short, Semet concludes that “despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute in similar fashion to how courts do.”
Monday, February 26, 2018
Well, that didn't last long. Two months following its several of the Browning-Ferris joint-employer standard in Hy-Brand, the NLRB has vacated that recent decision. No, it wasn't a change of heart. Rather, the NLRB vacated Hy-Brand because its Inspector General recommended that action due what it viewed as the improper participation of Member Emanuel, who participated in the case despite the fact that his former firm represented one of the parties involved with the Browning-Ferris litigation, which was still involved in litigation that would be influenced by the NLRB's joint-employer standard.
Needless to say, as soon as JohnRing is confirmed--and he now has a hearing date of March 1--we will likely see Hy-Brand again under a different name.
Tuesday, February 20, 2018
Thanks to Aaron Halegua for passing along this feature story from last week's Bloomberg BusinessWeek about a Chinese casino in Saipan. It gives a very compelling account of the labor and safety issues concerning the Chinese construction workers there. And, these issues became the subject of many questions during a Senate hearing earlier this month about a bill concerning the future of a CNMI-specific guest worker program. For those who want further information about the labor situation in Saipan and the response by the federal authorities, see Aaron's short piece in ChinaFile.
Friday, February 16, 2018
Yesterday, the NLRB announced that it is seeking input on whether an employer's misclassification of employees as independent contractors should be a unfair labor practice under Section 8(a)(1). In the case at issue, Velox Express, an ALJ found such a violation. This comes on the heels of some recent NLRB decisions finding a ULP in misclassification cases, as well as the General Counsel's release of a Division of Advice memorandum along the same lines (indicating more of a focus on that issue). Unsurprisingly, the new Board looks to be reigning in this type of ULP, if not eliminating it altogether. The question presented in the Velox call for briefs:
Under what circumstances, if any, should the Board deem an employer’s act of misclassifying statutory employees as independent contractors a violation of Section 8(a)(1) of the Act?
Stay tuned . . . .
Inside Higher Ed is reporting on three different graduate student election certification efforts being abandoned in recent days. Following the NLRB's 2016 Columbia University decision, there was a surge of organizing activity for private-school grad students. However, with the new Trump Board, the fear among unions and organizers is that Columbia will soon be overturned. As a result, unions are abandoning the formal NLRB representation process, hoping to gain voluntary recognition from the universities. Thus, last week, unions working with grad students at Boston College, University of Chicago, and Yale University withdrew election petitions they had filed with the NLRB. Just to underscore the significance of these moves, note that the unions had already won elections at all three schools. But given that the schools were challenging those elections, the unions clearly felt that the better strategy was to stand down and attempt to gain voluntary recognition. The chances of voluntary recognition at these three schools appear to be low--it's unclear why the schools would reverse their strong opposition to their grad students' organization efforts--but it's something that has worked at other schools. As the article noted:
William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College of the City University of New York, said it appeared graduate students will rely on the already demonstrated showing of majority union support. “Keep in mind that graduate student unions were voluntarily recognized at NYU and the University of Connecticut,” he said, the latter case involving a public institution subject to state labor laws.
[Update] Bill also has a recent article exploring the early history of organizing in higher education, including examples of voluntary recognition. The paper is "The History Books Tell It? Collective Bargaining in Higher Education in the 1940s," which appears in the Journal of Collective Bargaining in the Academy. Check it out.
Tuesday, January 30, 2018
As will be a surprise to exactly no one, we're seeing a challenge to the NLRB's Columbia decision concluding that grad students can be classified as employees under the NLRA. This time it's a challenge in the actual Columbia case. Following the union's 1602-623 win, the university is pursing a challenge via a technical 8(a)(5). That's the process for appealing most representation decisions of the NLRB. The employer refuses to bargain with the union--typically a violation of Section 8(a)(5)--and uses the proceedings of that unfair labor practice case to challenge the underlying representation action. In this case, the grad students' status as employees eligible to union under the NLRA.
More to come on this one, so stay tuned.
Friday, December 15, 2017
Another twofer from the NLRB today. The first is another expected change--the Specialty Healthcare decision that has been much derided by employers. In Specialty Healthcare (2011), the Board concluded that if, after there is a determination pursuant to the traditional unit determination test, an employer argued that employees should be added to a union's proposed unit, the Board would find the proposed unit appropriate unless the employer could show that the excluded employees shared an overwhelming community of interest with the proposed group of employees. In PCC Structurals, the NLRB reversed Specialty Healthcare and its "overwhelming community of interest" standard, instead using only the multi factored test for a unit determination in most cases. Also, although it wasn't presented in PCC Structurals, the NLRB also reinstated the Park Manor standard for nonacute health care facilities (like nursing homes), that prompted the Specialty Healthcare decision. Legally, the issue over the traditional v. Specialty Healthcare tests hinges on what is meant by the NLRA's mandate that a unit merely be "an appropriate" unit rather than the "most appropriate" unit and how much the interests of excluded employees should play a role. But in reality, the disagreement is mainly based on the fact that, in general, the smaller the unit, the easier to organize.
In the second case, Raytheon Network Centric Systems, the NLRB reversed a 2016 case, DuPont, in which the Board had concluded that an employer must bargain with a union before instituting a change that is consistent with a previous practice that was created under an expired management rights clause or made pursuant to employer discretion. In Raytheon, the NLRB stated that an employer need not bargain before implementing any change that is similar in kind and degree with an established past practice that is similar to the unilateral change--even if the past practices were created under a collective-bargaining agreement, even if there was no agreement when the disputed change was implemented, and even if the past practices involve some degree of employer discretion. The dissent argues strenuously that this new rule violates the Supreme Court's decision in Katz.
We now have four NLRB reversals over two days, all of which were issued without any notice or invitation for comment. Moreover, they all mirror Chairman Miscimarra dissents. The Chairman's term is expiring tomorrow, so I wouldn't be surprised to see several more decisions even running into next week (dated Dec. 16).