Richard Painter

The question of the recusal of John Ring and William Emanuel from the McDonald’s case continues to heat up. In a letter sent to encourage Ring and Emanuel to ignore calls for recusal,  attorneys for McDonald’s lambasted the chief proponent of recusal, Richard Painter, as a “recently failed Democratic Senate candidate” and “cable news talking head,” describing his letter as “nothing more than a transparent attempt to interfere with the National Labor Relations Board’s processes.” So far it appears that Ring and Emanuel see no need to recuse themselves.

The NLRB ruled 3-1 in the DuPont case that companies may implement unilateral changes to employee benefits without advance notice to the union if the changes are consistent with annual past practice. The DuPont case was originally lost by the company in an earlier ruling and the company was charged with an unfair labor practice.  DuPont  appealed twice. In the meantime, the board issued the Raytheon case in December 2017, which held that employers do not have to bargain over changes to employment terms so long as the changes are consistent with past practice.  With the Raytheon decision overruling the original DuPont majority holding, the board applied Raytheon to DuPont to settle the matter.

In recent rulings, the board has signaled that it will take a new approach to failure-to-bargain charges. In the past, the board took a very restrictive view of the definition of a union’s waiver of rights to bargain over working conditions. The Trump board has shown that it will apply the waiver standard in a more balanced way, and has indicated that it would like to reconsider the current waiver standard.

The NLRB plans to hold unions’ feet to the fire in regard to the duty of fair representation of their members. Unions used to be able to dodge charges on the basis of “mere negligence,” (ie. when the union loses or misplaces a grievance). Not so any longer. A recent Memorandum to field offices has redefined such behavior, and could lead to charges of gross negligence. Unions will also have more difficulty ignoring members’ phone calls to ascertain status of grievances, and such actions can be charged as willful and arbitrary.

Since Trump’s reappointment of Mark Pearce to the NLRB, a coalition of conservative groups has appealed directly to Congress, asking them to oppose the re-nomination. In a letter, the group accused Pearce of the “weaponization of ethics rules at the NLRB — using ethics rules on conflicts of interest to wrongfully pressure certain Board members into recusing themselves from important cases.”

In a recent Kentucky State Supreme Court ruling, Kentucky became the first state in the nation to prohibit employers’ use of mandatory arbitration agreements as a condition of employment. The Court found a way to determine that the Federal Arbitration Act does not preempt Kentucky Revised Statute 336.700. A petition has been filed asking the Kentucky Supreme Court to reconsider the decision, and if the petition is unsuccessful it is likely to move to the U.S. Supreme Court, where the issue is likely to be resolved in favor of arbitration.