On March 30, 2022, a panel in the Third Circuit Court of Appeals overruled nearly 30-year-old precedent and held that arbitration provisions do not survive the expiration of a collective bargaining agreement (CBA) in Pittsburgh Mailers Union Local 22 v. PG Publishing Co. The previous rule, first articulated in Luden’s Inc. v. Local No. 6 Union of the Bakery, Confectionary & Tobacco Workers International Union, 28 F.3d 347 (3d Cir. 1994), was premised on the idea that where an employer and a union agree to maintain certain terms and conditions of employment after the expiration of a CBA, a “new implied-in-fact-CBA” is formed that implicitly incorporates the expired CBA’s dispute resolution mechanisms. The only exceptions were situations where both parties intended the arbitration clause to expire with the contract or where one party, under the totality of the circumstances “objectively manifest[ed] to the other a particularized intent . . . to disavow or repudiate that term.” These exceptions were exceedingly narrow.
On February 10, 2022, the National Labor Relation Board’s (NLRB) General Counsel, Jennifer Abruzzo, issued Memorandum GC 22-03 announcing her agreement with and support of the Biden administration’s Task Force on Worker Organizing and Empowerment (Task Force) February 7, 2022 report. The Task Force was created by executive order in April 2021 to identify ways the executive branch can promote worker organization and collective bargaining through existing policies and programs. The Task Force’s report included recommendations to increase organizing and encourages collaboration between government agencies focused on worker protection. In addition to instructing field offices to adopt the recommendations outlined in the report, Abruzzo’s memorandum details current interagency undertakings and outlines future efforts to strengthen those collaborations.
On Friday, February 4, 2022 President Joe Biden signed Executive Order 14063, requiring project labor agreements (PLA) for all federal construction projects costing more than $35 million. PLAs are agreements between contractors and one or more labor organizations that establish the terms and conditions of employment, such as wage rates and benefits, for specific construction projects. Because of their project-based specificity, the terms and conditions of a PLA often (depending upon the PLA’s terms) supersede the provisions of an existing, but more geographically generalized, area collective bargaining agreements (CBA).
The order takes effect immediately and will apply to many of the projects funded by the recent infrastructure bill.
Written descriptions of employee benefits may expose Pennsylvania employers to additional contractual obligations and liabilities. According to a three-judge Pennsylvania Superior Court panel, providing written descriptions to employees regarding various benefits, incentives and rewards may form a binding, unilateral contract creating rights and obligations separate from an employee’s at-will relationship with the employer.
In late April 2021, the Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) signaled its intent to revisit the “Persuader Rule” — an Obama-era regulation that imposes strict reporting requirements on employers facing organization. Although the Persuader Rule has not yet been reinstated, and will almost certainly face significant opposition, employers should be aware of the possible ramifications of the regulation.
In an expansion of the Fair Workweek Law, the New York City Council has passed legislation permitting quick-service restaurant employers to terminate employees only for just cause or a bona fide economic reason. These heightened requirements effectively eliminate the at-will status of industry employees and create a discipline structure similar to that bargained for by unionized workforces. With the new protections set to take effect in July, employers should begin drafting and implementing policies to comply with the new laws as soon as practicable.