The Supreme Court unanimously held on June 6, 2022 that airline workers who load and unload cargo from airplanes are exempt from the coverage provided under the Federal Arbitration Act (FAA). Employers commonly use the FAA to compel arbitration where disputes arise under employment agreements containing arbitration provisions. However, Section 1 of the FAA exempts “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” from the FAA’s coverage. According to the Supreme Court, workers who load and unload cargo onto airplanes fall within that exemption.
Author: Matthew A. Fontana
Third Circuit Holds Arbitration Provisions Do Not Survive Expiration of CBA
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.
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NLRB’s General Counsel Announces Support for White House Labor Report
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.
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Benefit Plan Descriptions May Create Unilateral Contracts in Pennsylvania
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.
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New NLRB Leader Identifies Possible Changes
Employers who have watched the National Labor Relations Board — the nation’s primary enforcer of labor law — over the years anticipate that it will reshuffle its priorities soon after the White House changes parties. The agency swore in Jennifer Abruzzo as its new general counsel on July 22, 2021; and three weeks later, Abruzzo released an internal memorandum that is a blueprint for changes to the law she would like to see the agency implement.
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DOL Mulls Return to Obama-Era “Persuader” Reporting Rule
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.
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