A QUICK REVIEW OF RECURRING LABOR LAW ISSUES FOR NECA CONTRACTORS GARY LIEBER, NECA GENERAL COUNSEL NECA LABOR RELATIONS CONFERENCE NEW ORLEANS MARRIOTT APRIL 16, 2019

LIST OF ISSUES Union testimonial dinners/golf tournaments, etc. Babcock & Wilcox deferral Duty to provide relevant information Sexual harassment policy Unilateral change/past practice

UNION TESTIMONIAL DINNERS/GOLF TOURNAMENTS, ETC. 29 USC §186(a) and (b) makes it a criminal violation for union officials to receive from an employer “any payment, loan or delivery of any money or thing of value.” See US v. Pecora, 484 F.2d 1289 (2d Cir. 1983) – retired Laborers Union official received $25,450 worth of tickets and advertisements. See US v. Georgopoulos, 149 F.3d 169 (2d Cir. 1998) – Union official sentenced to 13 months in prison; court held “willfulness” means a “general intent to violate” and rejected jury instruction requiring “bad purpose and with knowledge that their conduct was wrong.”

LM REPORTING REQUIREMENTS De minimus exception of $250 or less per year Aggregated for all union officials from all of employers’ representatives Signed under penalty of perjury RECOMMENDATION: DO NOT GIVE ANYTHING OF VALUE TO UNION REPRESENTATIVE INCLUDING CONTRIBUTIONS TO UNION OFFICIAL RETIREMENT OTHER THAN FAIR VALUE OF COST OF MEAL

Deferral to arbitration of 8(a)(3) ulp’s to arbitration under babcock & wilcox HOLDING: IN ORDER TO HAVE NLRB DEFER TO ARBITRATION Arbitrator explicitly authorized in CBA to decide ULP issue Arbitrator presented with issue and explains its decision on ULP in arbitration decision Decision must not be repugnant to Act and remedy must be consistent with Act’s remedies (e.g. must include backpay though may permit mitigation obligation and deduction for unemployment compensation)

Deferral to arbitration of 8(a)(3) ulp’s to arbitration under babcock & wilcox (con’t) JANUARY 2019 GENERAL COUNSEL MEMO – excludes Babcock & Wilcox from cases where grievance is already in process (under Dubo Mfg guidelines) – ALSO STATES THAT BABCOCK & WILCOX WAS WRONGLY DECIDED

DUTY TO PROVIDE RELEVANT INFORMATION Request seeking information regarding mandatory subjects of bargaining affecting bargaining unit presumptively relevant Seeking information regarding nonmandatory subjects (e.g., profit margin, selection of management officials, etc.) not presumptively relevant – employer should ask Union for specific reason why information necessary to represent bargaining unit

DUTY TO PROVIDE RELEVANT INFORMATION (con’t) RECENT CASE: Stericycle, 367 NLRB No. 106 (2019) – Information requests relating to implementation of Corporate Ethics and Anti-Corruption Policies required by Company’s customers – Union asked for a list of customers requiring policies and communications between Company and such customers – NLRB ruled information required since implementation of policy could result in loss of employment.

Sexual harassment policies Every Company should have a Policy Policy should be reviewed by Employment Attorney Effective Policy may be a defense to a legal claim of Sexual Harassment TRAINING: Several states now require training for Management personnel and some States require training for rank and file employees

Unilateral change FACTORS: MANAGEMENT RIGHTS CLAUSE: See Graymount, 364 NLRB No. 37 (2016) – Clause that requires employees “to observe Employer’s and or Owner’s rules and regulations not inconsistent with this Agreement” not an unequivocal Union waiver of right to bargain where no evidence parties discussed specific proposed rules in negotiations or agreement does not otherwise reference specific issue or where there is no established past practice.

Unilateral change (con’t) Dycora Transitional Health, 2019 LEXIS 149 (ALJ) (Feb. 28, 2019) – waiver established because Management Rights Clause permitted Employer to change starting times of shifts PAST PRACTICE: See Stericycle, 367 NLRB No. 106 (2019) – no waiver - lack of past practice of conducting criminal background check – only a random few signed such authorizations Most cases should be subject to NLRB deferral under NLRB Collyer and Spielberg doctrines