laborrelations

NLRB Rules Academic Counselor And Clinical Counselor Are Able To Join Teachers Union.

The Chicago High School for the Arts is a preparatory visual and performing arts high school. The teachers are unionized and the union wanted to add the School’s Clinical Counselor and Academic Counselor to the teacher’s union. Confidential and managerial employees are excluded from the National Labor Relations Act’s (NLRA) jurisdiction and therefore cannot be members of a union. The case was brought before the National Labor Relations Board to determine whether these two employees were confidential or managerial employees.

Clinical Counselor

The School asserted that the School’s Clinical Counselor is a managerial employee under the NLRA and therefore should be excluded from the union. The School argued that the Clinical Counselor is a member of the School’s leadership team and is responsible for formulating and effectuating the department’s work plan related to student academic growth and emotional health. The School said the Clinical Counselor develops the calendar for student services to the School’s outside clinical group, provides trainings to this outside group, and develops and effectuates mental health and safety protocols for the School.

The union, on the other hand, asserted that the Clinical Counselor does not possess any managerial responsibilities. She does not and has not formulated or effectuated any academic growth or emotional health plans, there is no “department” for which the Clinical Counselor acts in any managerial capacity, and the union has undisputed testimony that the Clinical Counselor does not develop, control, or maintain the outside clinical group’s calendar or activities for the students. The union showed that the Clinical Counselor does not develop or effectuate safety protocols or plans for the School, but rather the deans perform these functions.

Managerial employees are those who formulate and effectuate management policies. These employees are excluded from the NLRA because they are aligned with management, and an employer is entitled to the undivided loyalty of its members. In evaluating whether an employee is managerial, the job title is not controlling. The analysis is done on a case-by-case basis by examining their actual job responsibilities, authority, and relationship to management.

The NLRB determined that the Clinical Counselor supports students with emotional and social needs, but she does not have any responsibilities regarding student behaviors on a regular basis. She is usually only involved if there is an emergency and when there is a mental health concern. She has no responsibilities for a student’s IEP or 504 Plan—case managers perform those functions. Outside clinicians who work with students on mental health issues do not report in any manner to the Clinical Counselor. The Clinical Counselor only attends leadership meetings about 25% of the time, and the main focus is for each participant to talk about priorities for the upcoming week. There have never been discussions of collective bargaining to date. The Clinical Counselor testified that she has never been told by the School that she was part of the administrative team (comprised of the principal, assistant principal, and deans), and she does not consider herself to be an administrator.

The NLRB found that the overwhelming evidence was that the Clinical Counselor’s decision-making is limited to routine discharge of professional duties in projects to which she has been assigned. She is not conferred managerial status. As such, the Clinical Counselor should not be excluded from the union.

Academic Counselor

The School asserts that the School’s Academic Counselor is a confidential employee under the NLRA and therefore should be excluded from the union. The School argues that the Academic Counselor is part of the School’s leadership team and assists and acts in a confidential capacity to persons who formulate, determine, and effectuate management polices with regard to labor relations. The Academic Counselor assists with revising the School’s schedules with regard to the workday for teachers, the student day, and instructional time. The School asserts that the Academic Counselor is responsible for making recommendations that impact teacher performance evaluations.

The union, on the other hand, asserts that the Academic Counselor does not assist or act in any confidentiality capacity to any member of management or anyone who formulates labor relations policies. The Academic Counselor testified, and the Interim Principal acknowledged, that the evidence showed that the Academic Counselor neither possessed nor is given any information or knowledge of teacher work schedules, what subjects teachers will be teaching, or what will and will not impact teacher evaluations. The Academic Counselor’s participation in leadership meetings consists of attendance, and there is not any discussion during these meetings about bargaining with the union, scheduling changes, workday changes, or teacher evaluations.

Confidential employees are excluded from bargaining units because they assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations. Confidential employees, in the course of their duties, have regular access to confidential information concerning the employer’s labor management policies and negotiations.

The NLRB determined that helping students pick courses and balancing student enrollment in classes did not constitute tasks that would render the Academic Counselor a confidential employee. The Academic Counselor does not select which courses will be offered, and the teachers make recommendations directly to the principal and assistant principal as to what they want to teach. The Academic Counselor’s undisputed testimony demonstrates that she receives no private or advance information on class or teacher schedules. While the Academic Counselor collects recommendations from teachers in each department, the principal and assistant principal make all final department structuring and course selection decisions without her knowledge or input. Collective bargaining, labor relations, teacher evaluations, schedule changes, and workday changes have not and currently are not being discussed at leadership meetings. Like the Clinical Counselor, the Academic Counselor has never been told she was part of the administrative team and does not consider herself to be an administrator. The Academic Counselor’s mere access to personnel or statistical information is not enough to consider her a confidential employee, and some teachers in the union have equal and earlier access to the same teacher scheduling information.

The NLRB found that the School failed to sustain its burden to show that the Academic Counselor should be excluded from the union.

The Chicago High School for the Arts and Chicago Teachers Union, Local 1, AFT/ IFT, AFL-CIO (March 17, 2023) 13-RC311310.

Note:

This case shows the fact-intensive analysis that is required in determining whether an employee is eligible to join a school’s teachers union. Here, the NLRB focused on the employees’ actual job responsibilities, authority, and relationship to management.

NLRB General Counsel Issues Memo On Severance Agreements In Light Of Recent NLRB Decision.

On February 21, 2023, the National Labor Relations Board (NLRB) issued a decision in McLaren Macomb, 372 NLRB No. 58, finding that McLaren Macomb hospital violated the National Labor Relations Act (NLRA) by offering employees severance agreements that required employees to broadly waive their rights under the NLRA. The severance agreements in this case contained overly broad non-disparagement and confidentiality clauses that tended to interfere with, restrain, or coerce employees’ rights under the NLRA. LCW issued a special bulletin on this case, which can be found here.

In light of the McLaren Macomb decision, private employers, such as schools, are deciding what changes need to be made to their severance agreements going forward. On March 22, 2023, the General Counsel for the NLRB issued a memorandum with answers to some common inquiries in light of the McLaren Macomb decision. While this memorandum is not binding law, it does provide helpful guidance for schools and other private employers.

The memorandum clarified severance agreements are not banned. Lawful severance agreements can continue to be offered, maintained, and enforced, so long as the terms of the agreements are not overly broad. The memorandum also indicated that while supervisors are generally not protected by the NLRA, and therefore not subject to the McLaren Macomb decision, there are certain circumstances where a supervisor may have protections under the NLRA. For example, when a supervisor refuses to proffer an unlawfully overbroad severance agreement or when a supervisor refuses to act on their employer’s behalf in committing an unfair labor practice against employees, the supervisor would be protected by the NLRA.

The memorandum stated that the decision has retroactive effect, subject to a six-month statute of limitations. It also stated that severability clauses can typically be used to void only the provisions of a severance agreement that are overbroad or unlawful.

The memorandum noted that non-disparagement clauses can be used so long as they are drafted in a narrowly tailored way, for example, by limiting the non-disparagement clause to the definition of defamation, which is when an employee makes a maliciously untrue statement with knowledge that it is untrue or with reckless disregard for its truth or falsity. Similarly, confidentiality clauses may be considered lawful if they are narrowly-tailored to restrict the dissemination of proprietary or trade secret information for a period of time based on legitimate business justifications.

The full memorandum can be found here

In light of the McLaren Macomb decision, many schools are reconsidering the terms of their severance agreements. For guidance, please reach out to LCW.

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No Liability For Supervisor’s Off-Duty Sexting.

Hanin Atalla and Erik Lund met in fall of 2017, when Atalla shadowed Lund at Rite Aid during her pharmacy school rotations. When Atalla’s rotation at Rite Aid ended, she attended a celebratory dinner with Lund and his wife and the two kept in touch. Atalla later began work at Rite Aid as a graduate intern and then hourly staff pharmacist; Lund was her supervisor. Atalla and Lund became close friends, celebrated a Friendsgiving, joked regularly, and frequently went to lunch. They texted on their personal cell phones about a range of personal matters, including travel and vacations, exercise, food, weight loss, restaurants and getting together for meals, family and relatives, birthdays, fashion, drinking and alcohol, work issues, their respective spouses, pets, and social media. They also dined together as couples with their spouses, including once for Atalla’s birthday.

Approximately one month after Atalla’s birthday, while Atalla was at home and Lund was at a hotel for personal business, Lund began texting Atalla on their personal cell phones about the alcohol he was preparing to drink at the hotel. Shortly thereafter, Lund texted her a “Live Photo” of him masturbating, followed by a text that said, “I am so drunk right now.” He then texted, “Meant to send to wifey,” to which Atalla responded, “It’s ok, I deleted it before I end up in a divorce.” Lund then sent several more texts stating, “Both of us” and “Race to the bottom” accompanied by a photo of his penis. Atalla texted, “Erik, stop please,” to which he replied, “You are right.” The exchange ended.

Rite Aid promptly fired Lund and Atalla said she would not be returning to work. She filed a claim for violation of the Fair Employment and Housing Act (FEHA) for sexual harassment, failure to prevent sexual harassment, and hostile work environment, among other things. The trial court granted Rite Aid’s motion for summary judgment, and Atalla appealed.

The California Court of Appeal affirmed the trial court because Atalla had not raised a triable issue of material fact that Lund was acting in the capacity of a supervisor in the text exchange. Rather, the Court agreed with the trial court and Rite Aid that Lund and Atalla had an extensive texting relationship that predated her employment, the exchange occurred outside the workplace and outside of work hours, and the exchange arose from their friendship (yet also ended it). Moreover, Atalla admitted that she and Lund were friends before she worked at Rite Aid and their friendship was not connected to her work at Rite Aid.

Because Atalla could not make the fundamental showing that Lund was acting in a supervisorial capacity, the Court affirmed the trial court’s ruling and dismissed the case.

Atalla v. Rite Aid, 2023 WL 2521909 (Cal. Ct. Appeal).

Note:

Texting and drinking do not mix. This supervisor lost both his job and a friend. In addition, he could have been personally liable for damages had he been texting in his capacity as a supervisor.

Administrator Failed To Show Termination Was Result Of Reverse Sex Discrimination.

The Orchard School is a non-profit and independent school in Indianapolis, Indiana. James Napier was hired by the School as a middle school teacher in 1996. Napier left for other employment in 2003 and returned to the School in 2016, taking the position of Middle School Director. As the Middle School Director, Napier supervised middle school teachers and the Middle School Coordinator.

Napier alleges that prior to his re-hiring, the Middle School Coordinator told him there was internal debate over whether to re-hire him because he was one more white male coming into the School. Prior to 2018, the entire Senior Administration Team was made up of white males and allegedly during Senior Administration Team meetings with the previous Head of School, the group occasionally expressed that there were too many white males in senior leadership positions. In mid-2017, the previous Head of School was notified that his contract would not be extended and the School undertook a search for the new Head of School. During this time, there were conversations about hiring a female head of school to increase diversity. Board members confirmed that the “white male issue” was discussed when searching for a new Head of School. In July 2018, Dr. Sherri Helvie became the Head of School. After Dr. Helvie was hired as the new Head of School, Napier’s position and job responsibilities remained the same, but he was shifted from the Senior Administrative Team to the Academic Leadership Team. Napier perceived this shift as a demotion, since he was no longer “in the know” on school decisions and had less access to the Head of School.

In October 2018, the School was informed that a Middle School English teacher intended to retire at the end of the school year. Napier began focusing on hiring to replace her, and specifically sought to hire a teacher then employed by another school. Napier discussed this candidate with Dr. Helvie, and Dr. Helvie instructed Napier to not post the position until she had a chance to speak with the head of the other school. After some time, Napier did not hear from Dr. Helvie one way or another, and posted the vacancy. Upon learning of this, Dr. Helvie instructed for the post to be taken down.

Early in Dr. Helvie’s tenure as Head of School, she also undertook discussions with Napier regarding the Middle School Coordinator position and the Early Childhood/Elementary School Coordinator position. Dr. Helvie was reviewing these positions for possible elimination. Napier told the Middle School Coordinator that her job may be in jeopardy, despite Dr. Helvie’s instruction that their meetings on the topic remain confidential.

In March 2019, Napier was informed that his contract would not be renewed because Dr. Helvie had lost trust in him. Napier sued the School in August 2019 for sex discrimination. In December 2019, Napier filed a new application to return to his prior Middle School Director position. After that application was rejected, Napier filed a second lawsuit, alleging he was retaliated against for engaging in protected activity. The School moved for summary judgment.

To survive summary judgment in a reverse discrimination case, Napier must establish the following four elements to constitute a prima facie case: (1) background circumstances that demonstrate that a particular employer has reason or inclination to discriminate invidiously against men or evidence that there is something “fishy” about the facts at hand; (2) he was performing his job up to his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) he was treated less favorably than similarlysituated individuals who are not men. If Napier establishes a case, the School then must show that the explanation was pretextual.

The Court concluded that Napier provided no evidence to show that Napier’s termination was a “fishy” circumstance. He was fired nine months after Dr. Helvie was hired, which is too remote to be suspicious, since she had sufficient time to work with and interact with Napier. Napier failed to provide evidence of reductions in job responsibilities for positions occupied by males at the School. Napier failed to show evidence that Dr. Helvie did not honestly believe her stated reasons for discharging Napier, namely his breach of her trust and confidences. Napier violated Dr. Helvie’s instructions when he posted the position and he failed to maintain the confidences she entrusted to him about the Coordinator positions. Finally, the Court concluded that Napier did not provide similarly situated individuals who were not men and treated more favorably than Napier.

The Court determined that Napier failed to establish a prima facie case of sex discrimination.

In regard to Napier’s retaliation claim, the Court concluded that there was a great deal of evidence supporting the decision to not rehire Napier, in particular, that Napier had previously held the same position and had been let go because he did not perform up to the level expected by Dr. Helvie.

The Court granted summary judgment for the School and dismissed the case.

Napier v. Orchard School Foundation (S.D. Ind., Mar. 7, 2023) 2023 WL 2388715.

Note:

Although this employee felt the School was taking steps to eliminate white men from working at the School, this was not enough to establish that his termination was due to his sex, as the School was able to provide evidence to support the reasons for his termination, such as the Head of School’s loss of trust in the employee.

Changes Without Regulatory Effect To The FEHA Regulations Approved.

On March 20, 2023, the California Civil Rights Council’s Changes without Regulatory Effect to the Fair Employment and Housing Act Regulations were approved by the Office of Administrative Law and were filed with the Secretary of State. The Fair Employment and Housing Act Regulations now reflect the following changes:

1. Department and Council Name Change: The Department of Fair Employment and Housing was changed in July 2022 to the Civil Rights Department. The Fair Employment Housing Council was similarly changed to the Civil rights Council.

2. California Family Rights Act (CFRA): Effective January 1, 2023, the list of individuals for whom an employee may take CFRA leave to care for include at least one “designated person.” A designed person is someone related to the employee by blood or whose association with the employee is equivalent to a family relationship.

3. Reproductive Health Decisionmaking: In September 2022, Governor Newsom signed the Contraceptive Equity Act of 2022, which took effect on January 1, 2023. This Act adds “reproductive health decisionmaking” as a protective characteristic under the Fair Employment and Housing Act’s employment provisions, and includes but is not limited to, a decision to use or access a particular drug, device, product or medical service for reproductive health.

These changes update the existing California Code of Regulations to accurately reflect recent updates in the law.