Total Articles: 398
Unpaid interns are not “employees” as defined by the National Labor Relations Act (NLRA), and employee advocacy on their behalf is not protected concerted activity under Section 7 of the NLRA, the National Labor Relations Board (NLRB) has ruled. Amnesty International of the USA, Inc., 368 NLRB No. 112 (Nov. 12, 2019).
The National Labor Relations Board has issued its “Ethics Recusal Report,” which announces several process changes that may add new wrinkles to practice before the Board.
In February 2017, the National Labor Relations Board (NLRB) amended Part 102 of its rules and regulations to include a provision governing electronic filing of documents before the board. Section 102.5(c) specifically provides that unless otherwise permitted under the rules and regulations, all documents filed in cases pending before the board must be filed electronically through the board’s website.
An employee who paid “fair share” union fees under protest is not entitled to damages to refund any of the money he paid the union, the U.S. Court of Appeals for the Seventh Circuit has held. Janus v. Am. Fed’n of State, No. 19-1553 (Nov. 4, 2019). The Court explained fair share fees were “an exchange of money for services” that was permitted under the law in effect at the time they were deducted from the employee.
he National Labor Relations Board (NLRB) has clarified its standard for evaluating the legality of employers’ facially neutral policies, rules, or handbook provisions.
An employee’s complaints about his pay to coworkers was protected concerted activity under the National Labor Relations Act (NLRA), even though the employee was unsuccessful in enlisting any other employees to support his complaints, the Advice Division of the National Labor Relations Board’s (NLRB) Office of the General Counsel has decided.
‘Vague’ Savings Clause Insufficient to Save Arbitration Agreement Limiting Employees’ Access to NLRB
An arbitration agreement requiring that all “claims or controversies in any way relating to or associated with … employment or the termination of … employment … will be resolved exclusively by binding arbitration,” including “all statutory… claims” violated the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has ruled.
An employer’s confidentiality and non-disclosure rule and media contact rule do not violate the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has held. LA Specialty Produce Company, 368 NLRB No. 93 (2019). The Board also substantially clarified its decision in Boeing Co., 365 NLRB No. 154 (Dec. 15, 2017). NLRB Chairman John Ring and Members Marvin Kaplan and William Emanuel were in the majority. Member Lauren McFerran dissented.
Unfettered Free Speech or Profane Outbursts? NLRB Invites Input to Determine Scope of Section 7 Protection
The National Labor Relations Board (“Board”) is inviting input “to aid the Board in reconsidering the standards for determining whether profane outbursts and offensive statements of a racial or sexual nature, made in the course of otherwise protected activity” should lose the protection of Section 7 of the National Labor Relations Act (“Act”).
The National Labor Relations Board (NLRB) has ruled that a property owner lawfully may exclude off-duty contractor employees from engaging in leafletting and other Section 7 activity on its property, unless: (1) the contractor employees work “regularly” and “exclusively” on the property; and (2) the property owner fails to show the contractor’s employees have one or more reasonable non-trespassory alternative means to communicate their message. Bexar County Performing Arts Ctr. Found. d/b/a Tobin Ctr. for the Performing Arts, 368 NLRB No. 46 (Aug. 23, 2019).
The National Labor Relations Board (NLRB) has issued a Notice of Proposed Rulemaking (NPRM) that includes changes to its representation case procedures that potentially may affect both construction employers and building trades unions.
Construction unions, traditionally male-dominated, are leveraging the growing presence of women in their ranks to apply pressure on owners and contractors to obtain work. This new tactic is another method in unions’ “corporate campaigns” where construction unions create adverse publicity and apply political pressure on owners to hire union labor.
On September 6, 2019, the National Labor Relations Board (NLRB or Board) issued its decision in Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64, and officially rejected the idea that employers that allow civic and charitable organizations to fundraise on their property must also allow nonemployee union agents to solicit on employer property in whatever manner they choose. In light of Kroger, employers may distinguish between those nonemployee activities they will and will not allow based on the nature of the activities.
NLRB Eases Path to Removing Union Via “Anticipatory Withdrawal”
Executive Summary: In a 3-1 decision, the National Labor Relations Board (NLRB or the Board) reversed long-held Board precedent regarding when unionized employers may unilaterally change a term or condition of employment without violating the National Labor Relations Act (NLRA or the Act). In doing so, the Board abandoned the “clear and unmistakable waiver” standard and instead applied the “contract coverage” standard. See M.V. Transportation, Case 28-CA-173726 (Sept. 10, 2019). In reaching this decision, the Board explicitly overruled its 2007 decision in Provena St. Joseph Medical Center, the last time the NLRB reaffirmed its adherence to the “clear and unmistakable waiver” standard.
NLRB Clarifies Employer Right to Require Mandatory Arbitration Agreements Following Supreme Court’s Epic Systems Decision
In a significant decision for employers, the National Labor Relations Board (NLRB) provided new guidance addressing the intersection of arbitration agreements and the National Labor Relations Act (NLRA). The NLRB’s recent decision in Cordúa Restaurants, Inc. expressly authorizes employers to modify arbitration agreements to prevent employees from opting into class action lawsuits in direct response to being sued. This decision follows the U.S Supreme Court’s 2018 decision in Epic Systems v. Lewis, which upheld the enforceability of arbitration agreements and rejected the proposition that such waivers violate the NLRA. Expanding on Epic Systems, the Cordúa NLRB held that warning employees that they will be discharged if they do not accept such an agreement, even when litigation is already pending, does not violate the NLRA.
The National Labor Relations Board (NLRB) has made it easier for employers to defend against unfair labor practice charges alleging a unilateral change in violation of the National Labor Relations Act (NLRA).
The National Labor Relations Board (NLRB) found an employer did not violate the National Labor Relations Act (NLRA) by misclassifying its employees as independent contractors. Velox Express, Inc., 368 NLRB No. 61 (Aug. 29, 2019). Velox engaged drivers classified as independent contractors to transport medical samples to hospitals and other medical facilities.
Seventh Circuit Affirms NLRB in Upholding Discharge of Fast and Furious Employee for Highway Misconduct
In Local 702, International Brotherhood of Electrical Workers, AFL-CIO v. National Labor Relations Board and Consolidated Communications, the U.S. Court of Appeals for the Seventh Circuit recently upheld the termination of a long-term employee for egregious strike-related misconduct. As the second federal appellate court to consider the case in its complex history, the Seventh Circuit affirmed a National Labor Relations Board decision that tried to draw a line between protected strike activity and misconduct that warrants discipline or discharge.
Coming on the heels of its decision in Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019) in which the Board rebalanced the rights of property owners versus Section 7 rights of employees during a labor dispute, the National Labor Relations Board (NLRB) recently issued another pro-employer decision. In Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64 (2019), issued September 6, 2019, the NLRB clarified when nonemployee union agents may access an employer’s property to engage in protests, boycotts, and other organizing activity.
On August 22, 2019, a three-member panel of the National Labor Relations Board (NLRB) ruled unanimously in favor of the Pittsburgh Post-Gazette, dismissing an unfair labor practice charge filed by seven unions that represent newspaper employees.
Reversing among its most controversial lines of precedent, the National Labor Relations Board (NLRB) issued a decision on September 10, 2019, that significantly changes the legal standard to determine whether an employer with an existing collective bargaining agreement has a continuing duty to bargain as to particular matters.
Watch Your Mouth: The NLRB Invites Input on when Profane, Racial, or Sexual Language Crosses the Line
On September 5, 2019, over the dissent of one member, a majority of the National Labor Relations Board invited briefing to aid the Board in reconsidering the standards for determining whether “profane outbursts and offensive statements of a racial or sexual nature, made in the course of otherwise protected activity,” should lose their Section 7 protection.1
According to a recent Gallup poll, almost two-thirds of Americans approve of labor unions.
The National Labor Relations Board (NLRB) has ruled that a property owner lawfully may prohibit the off-duty employees of its on-site contractors (or licensees) from accessing its private property to engage in Section 7 activity under the National Labor Relations Act (NLRA), unless (1) the off-duty employees regularly and exclusively work on the property, and (2) the owner of the property cannot show the off-duty employees do not have one or more reasonable non-trespassory alternative means to communicate their message. Bexar County Performing Arts Ctr. Found. d/b/a Tobin Ctr. for the Performing Arts, 368 NLRB No. 46 (Aug. 23, 2019). The decision applies retroactively. Chairman John Ring and Members Marvin Kaplan and William Emanuel were in the majority. Member Lauren McFerrin dissented.
It does not violate the National Labor Relations Act (NLRA) if an employer mistakenly misclassifies its employees as independent contractors, the National Labor Relations Board (NLRB) has decided. Velox Express, Inc., 368 NLRB No. 61 (Aug. 29, 2019).
Chalk up in the win column for businesses. Yesterday the National Labor Relations Board ruled that companies found to have misclassified workers as contractors will not automatically face liability for an unfair labor practice. We wrote about this issue back in February 2018 when the NLRB sought briefing on the matter, and we said then that such a request “could be good news.
Employers found to have misclassified employees as independent contractors will no longer face the prospect of unfair labor practice charges for such actions alone, according to a new ruling handed down yesterday by the National Labor Relations Board. Although the NLRB’s previous General Counsel and several administrative law judges had previously concluded that hiring entities could face the one-two punch of misclassification litigation followed by a federal labor law violation, the current Board wiped this concern off the table with its August 29 ruling in Velox Express, Inc. What do businesses need to know about this positive development?
NLRB — Employers Facing Litigation Can Modify Existing Arbitration Agreements to Include Class Action Waivers, Penalize Employees Who Refuse to Sign
On Wednesday, August 14, the National Labor Relations Board (NLRB) ruled that an employer can add a class action waiver to an existing employment agreement containing a mandatory arbitration provision. While this result was not surprising in light of the Supreme Court’s 2018 decision in Epic Systems, the NLRB’s decision was significant because it ruled that an employer can make this change even when litigation is already pending, effectively preventing employees from opting in to an existing collective action.
Following its “epic” loss last year on the issue of whether class action waiver provisions in employment arbitration agreements violate Section 7 of the NLRA, the NLRB has issued a new decision taking a much more employer-friendly view of mandatory arbitration agreements. In Cordua Restaurants, Inc., the NLRB ruled today that an employer lawfully (without violating the NLRA) may roll out a mandatory arbitration agreement in response to the filing by an employee of a collective action alleging wage and hour violations under the Fair Labor Standards Act. The NLRB held that the employer may require employees to sign the agreement as a condition of employment, thereby preventing them from opting in to the collective action, and that the employer may fire employees who refuse to sign the agreement. However, if an employee already has a pending lawsuit against the employer, the employer may not lawfully discharge the employee because of the filing of the lawsuit (which is protected activity).
The National Labor Relations Board (NLRB) General Counsel’s Division of Advice has found an employer did not violate the National Labor Relations Act (NLRA) when it fired an employee based on the mistaken belief that she divulged confidential wage information. Centura, 27-CA-234214 (Adv. Mem. June 24, 2019, released July 16, 2019). As the employee was applying for higher-paid positions with the employer, the employer received an anonymous tip that the employee disclosed to a colleague employee salaries information she obtained in her HR role. After the employer had fired the employee for the unauthorized disclosure, it emerged that the employee did not make the alleged disclosure.
Under the National Labor Relations Act (NLRA), employees have the right to determine whether union representation is in their best interests. The freedom of employees to make this critical choice in an atmosphere free of coercion or intimidation is one of the Act’s bedrock principles. Due to a unique provision in the NLRA, however, employees in the construction industry do not always have a choice on the “union issue.” On August 12, 2019, the National Labor Relations Board proposed an important rule change that returns free choice to employees. To understand the proposed rule change we first provide a brief overview of construction labor law concepts.
National Labor Relations Board Proposes Rulemaking Concerning Certain Union Representation Processes
On August 9, 2019, the National Labor Relations Board (Board) published a Notice of Proposed Rulemaking (NPRM) proposing three amendments to the representation election regulations contained in 29 CFR Part 103. The first proposed amendment would modify the Board’s blocking charge policy by establishing a vote-and-impound procedure for processing a representation petition when a party seeks to stay an election while an unfair labor practice (ULP) charge is pending. The second proposed amendment would change the current recognition-bar policy by re-establishing a notice requirement and a 45-day open period for filing an election petition following an employer’s voluntary recognition of a labor organization. The third proposed amendment would overrule Board law holding that contract language, by itself, can establish the existence of a Section 9(a) bargaining relationship for companies in the construction industry.
For employers with both unionized and non-unionized employees, determining a strategy for working conditions—i.e., whether to provide the same terms and conditions of employment to unionized and non-unionized employees—can be a challenge. In this episode of the Third Thursdays podcast, Ruthie Goodboe discusses tips and considerati
The National Labor Relations Board has issued a proposed rule to modify three aspects of its election procedures. According to the board’s announcement, the Notice of Proposed Rulemaking (NPRM), which will be published in the Federal Register on Monday and be subject to a comment period, would affect the Board’s blocking charge rule, voluntary recognition bar and collective-bargaining relationships in the construction industry:
On August 12, 2019, the National Labor Relations Board (NLRB) will publish a notice of proposed rulemaking (NPRM) with regard to certain of its election and recognition policies. The issuance of this NPRM is likely the first step in an ongoing overhaul of the agency’s representation case rules that were the subject of substantial and controversial revision by the Obama Board. According to the Board, the proposed amendments are designed to “better protect employees’ statutory right of free choice on questions concerning representation.” The NPRM proposes three policy changes that are significant, although somewhat limited in scope.
In an effort to save pension plans from insolvency, the U.S. House of Representatives has passed the Rehabilitation for Multiemployer Pensions Act of 2019 (H.R. 397).
Executive Summary: On July 26, 2019, the National Mediation Board (NMB) announced that it is amending its regulations to provide a straightforward procedure for the decertification of labor unions. The Board articulates this change is necessary to fulfill the statutory mission of the Railway Labor Act (RLA), by “protecting employees’ right to complete independence in the decision to become represented, to remain represented, or to become unrepresented.”
An employer violated the National Labor Relations Act (NLRA) by maintaining a mandatory arbitration policy making arbitration the exclusive forum for resolving all employment claims because it denied employees access to the National Labor Relations Board (NLRB), the Board has ruled. Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (June 18, 2019).
NLRB Explains When Granting Benefits to Nonunion Employees and Withholding the Same From Union Workers Can Be Lawful
On May 7, 2019, the National Labor Relations Board issued a decision that will be welcomed by employers desiring to maintain differences in the benefits provided to their union and nonunion employees.
When the news broke Friday afternoon that Labor Secretary Alexander Acosta would be resigning from his post, employers across the country began wondering what this transition would mean for them. You may have even heard speculation that Acosta’s immediate replacement could accelerate the agenda that has been restoring balance to the employer-labor relationship over the past several years. We’ve assembled the opinions of some of our firm’s foremost thought leaders – including a former colleague of the incoming acting secretary – to help provide a glimpse into what you should expect from the U.S. Department of Labor in both the short term and the long term.
In a 3-1 decision, the National Labor Relations Board (Board) in Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019), adopted a new standard that applies to an employer’s anticipatory withdrawal of union recognition, and set forth a new framework for determining whether a union has reacquired majority status. The Board’s new model settles majority status disputes through a secret-ballot election when the employer and the union both have evidence supporting their positions.
Arbitration agreements that could be reasonably construed to prohibit filing of unfair labor practice charges with the National Labor Relations Board (NLRB) are unlawful under the National Labor Relations Act (NLRA), the NLRB has held. Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (June 18, 2019).
UberX and UberBLACK drivers are independent contractors, not employees, of Uber, the General Counsel (GC) of the National Labor Relations Board (NLRB) has determined in a recently released Advice Memorandum.
NLRB Holds that Employer Does Not Taint Decertification Effort by Promoting the Employee Responsible for the Petition
In a recent decision, AIM Aerospace Sumner, Inc.,1 the National Labor Relations Board (Board) held that an employer could rely on a decertification petition to withdraw recognition from a union, even though the employer committed an unfair labor practice by promoting the employee responsible for the petition. The decision is welcome news for employers with unionized workforces. It offers them more confidence that they can rely on a decertification petition to withdraw recognition without having the petition later undermined by a tangential unfair labor practice charge.
On the Front Lines (No. 7, July 2019)
The National Labor Relations Board (NLRB) has announced its rulemaking agenda for the coming months. The Board stated that it plans to engage in additional rulemaking in the following areas: 1) representation case procedures (governing union elections); 2) standards for “blocking charges” (governing when unfair labor practice charges “block” union elections); 3) voluntary recognition (governing when and how employers may recognize unions without the need for an election); 4) the formation of bargaining relationships in the construction industry; 5) the standard for determining whether students employed at private colleges or universities may organize; and 6) access to employer property. The Board also stated that it plans to proceed with its rulemaking regarding the joint-employer standard.
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the spring 2019 issue of the Practical NLRB Advisor. This edition provides a close look at the development of the independent-contractor standard at the National Labor Relations Board (NLRB). The NLRB’s recent decision on this issue—one of the most critical legal questions of the day, both in the context of traditional labor law and in employment law generally—marks yet another significant reversal of Obama-era NLRB decisional law. The ruling is decidedly favorable to businesses, particularly those in the growing gig economy, and to other companies with business models that rely on the services of independent entrepreneurs.
NLRB Provides Hospitals and Other Employers Greater Control over their Private Property Available to the Public
Executive Summary: In a 3-1 decision, the National Labor Relations Board (“NLRB” or the “Board”) recently ruled that employers may prohibit nonemployee union representatives from soliciting or promoting union membership within common areas of an employer’s business – such as public restaurants and cafeterias – as long as the employer does so in a non-discriminatory manner. See UPMC and its Subsidiary, UPMC Presbyterian Shadyside, Single Employer d/b/a UPMC Presbyterian Hospital and d/b/a UPMC Shadyside Hospital and SEIU Healthcare Pennsylvania CTW, CLC, Case 06-CA-102465 (June 14, 2019). This decision provides employers with greater control over the use of their facilities and explicitly overrules precedent inconsistent with this determination.
On June 14, 2019, the National Labor Relations Board (the “Board”) overturned its long-standing ‘public spaces’ exception that allowed nonemployee union representatives access to employer-owned public spaces so long as those representatives were not disruptive. Now, in light of this ruling, an employer may ban nonemployee union representatives from organizing in a public space within the employer’s facilities, provided it does so in a nondiscriminatory way.
The alternative dispute resolution landscape continues to evolve for employers with unionized workforces. Anheuser-Busch, LLC, 367 NLRB 123 (May 22, 2019), is the National Labor Relations Board’s (NLRB) latest decision on the applicability of employment-related, mandatory arbitration agreements in a union context, after last year’s Supreme Court decision in Epic Systems Corp. v. Lewis.
The National Labor Relations Board announced today in its spring 2019 regulatory agenda that it intends to consider rulemaking in the following substantive areas arising under the National Labor Relations Act:
Scabby, the gnarly, diseased, inflatable rat, has long been recognized as a symbol of a labor protest. During the Obama-era, the National Labor Relations Board likened the use of Scabby to peaceful, protected activities such as hand-billing and found that the rat did not have an unlawful, coercive effect. Not surprisingly, that view seems to have changed now that the Board has shifted to Republican control. In a recent advisory memo issued by the Board’s Office of the General Counsel, Scabby was categorized as a coercive symbol that “create[s] a symbolic, confrontational barrier” and is the “functional equivalent” of unlawful picketing. As such, the General Counsel’s memo urges the Board to overturn Obama-era Board precedent and find that a union’s act of inflating Scabby may violate the National Labor Relations Act.
The National Labor Relations Board’s (NLRB) General Counsel (GC) has issued an Advice Memorandum on whether unfair labor practice charges alleging four employer rules violated the National Labor Relations Act (NLRA) have merit. In a Memorandum released on March 14, 2019, the GC concluded that the employer’s dress-code, confidential-information, and media-relations rules were lawful, but its cell-phone rule was unlawful.
The National Labor Relations Board (NLRB) has held that an operator of a unionized nursing home pursuant to a lease agreement with the former owner and operator was a successor employer under the National Labor Relations Act (NLRA), despite the fact that a majority of its bargaining unit employees did not come from the bargaining unit of the former operator. Ridgewood Health Care Center, Inc., 367 NLRB No. 110 (Apr. 2, 2019).
The National Labor Relations Board (NLRB) has dismissed a complaint against a Wisconsin employer that published a document informing employees of their right to stop paying union dues under Wisconsin’s right to work law. Metalcraft of Mayville, 367 NLRB No. 116 (Apr. 17, 2019).
May 15, 2019 National Labor Relations Board (NLRB) General Counsel Peter Robb urges the Board to return to its traditional joint-employer standard. In a brief filed with the U.S. Court of Appeals for the D.C. Circuit on April 17 and released on April 29, Robb stated his belief that the Court exceeded its authority in December 2018, when it directed the Board to fashion a joint-employer test consistent with common law joint-employment principles. Robb interpreted that direction as restricting the Board’s ability to reverse its employee-friendly Browning-Ferris Industries, 362 NLRB No. 186 (2015), joint-employer standard, a standard that Robb has criticized in the past. Under the test favored by Robb and followed by the Board prior to Browning-Ferris, joint-employer status would be found only where two entities actually share or codetermine employees’ essential terms and conditions of em
Third Thursdays with Ruthie: Are College Professors and Other Professional Employees Covered By the NLRA?
The issue of whether faculty at private colleges and universities are entitled to the protections of the National Labor Relations Act is still in flux—and cases on this topic can provide useful insight for other industries as well. In this episode of the Third Thursdays podcast, Ruthie Goodboe and Fito Agraz discuss the current state of the law as it relates to managerial status under the NLRA, and what recent cases mean for employers inside and outside of the educational context.
The NLRB has ruled that, under the particular circumstances, an employer representative lawfully barred a union representative from asking questions during an investigatory interview while the employer representative was questioning the employee to get his version of events. PAE Applied Technologies, LLC, 367 NLRB No. 105 (Mar. 8, 2019). NLRB Chairman John Ring and Member William Emanuel joined in the decision. Member Lauren McFerran dissented.
The United Auto Workers (UAW) have disclaimed the bargaining unit of 160 skilled-trades workers at Volkswagen’s (VW) Chattanooga, Tennessee, plant. The union organized the maintenance employees in 2015 but failed to secure a first contract for the group. In the past few years, the UAW has accused VW of multiple unfair labor practices, including that VW violated federal law by refusing to bargain. The UAW’s move may be tied to a recent NLRB decision that restricted a union’s ability to determine which workers to include in the bargaining unit, or it may reflect a gamble by the UAW that it can now win in a more broadly defined unit.
Over the past several weeks, there has been very significant activity with regard to rulemakings and court decisions concerning the U.S. Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), and the Office of Federal Contract Compliance Programs (OFCCP).
The National Labor Relations Board (NLRB) ruled that a private-sector union may not require non-member objectors (known as Beck objectors) to pay for its political lobbying expenses. United Nurses and Applied Professionals (Kent Hospital), 367 NLRB No. 94 (Mar. 1, 2019).
A company’s website used to be the primary vehicle for communicating with its external audiences, its intranet for connecting with employees. Both were largely one-way streets in terms of dialogue. The respective audiences weren’t invited to engage in the conversation. At least not out in the open for everyone else to see, and potentially escalate further.
NLRB General Counsel Seeks to Limit Use of Investigative Subpoenas in Unfair Labor Practice Investigations
The National Labor Relations Board’s Office of General Counsel is urging Regional Directors to limit their use of investigative subpoenas and instead issue complaints “based on the evidence available,” according to a March 13, 2019, memorandum obtained by Bloomberg Law.
For many years, unions have used “Scabby the Rat” as a symbol of protest. In this episode of the Third Thursdays podcast, Ruthie Goodboe and Brian Hayes take a look at the current state of the law as it relates to the use of Scabby and what constitutes legal picketing and bannering.
National Labor Relations Board (NLRB) Member Mark Gaston Pearce has withdrawn his name from consideration for another term on the Board. Pearce reportedly explained his decision by stating it felt best to “remove myself from the center of a political tug of war.” Pearce’s nomination had stalled in the U.S. Senate, which ended its last term without voting on the re-nomination. Many were surprised when President Donald Trump re-nominated Pearce, who had drawn criticism from business groups for a perceived anti-business bias during his tenure on the Board. Until Trump selects a new Democratic nominee for the five-member Board, the NLRB will continue to have a 3-1 Republican majority.
Unions no longer can require objectors to contribute toward union lobbying costs, the National Labor Relations Board (NLRB) has ruled in a 3-1 decision. United Nurses & Allied Professional (Kent Hospital), 367 NLRB No. 94 (Mar. 1, 2019).
In a long-awaited decision, United Nurses & Allied Professionals (Kent Hospital), issued on March 1, 2019, the National Labor Relations Board (NLRB) ruled that a private-sector union may not require nonmember objectors (also known as Beck objectors) to pay for its political lobbying expenses because lobbying falls outside the union’s “representational function.”
The National Labor Relations Board just decided that private sector unions cannot use fees paid by nonmembers to fund their lobbying efforts. Especially when coupled with last year’s momentous Janus decision at the U.S. Supreme Court, Friday’s decision in United Nurses & Allied Professionals (Kent Hospital) could further impact the effectiveness of union lobbying activities. What do employers need to know about the latest decision from the Labor Board?
The National Labor Relations Board recently issued a business-friendly decision that marks a return to the traditional independent contractor analysis and restores significance to a worker’s “entrepreneurial opportunity” for financial gain in determining whether the individual is an employee or independent contractor under the National Labor Relations Act. In this episode of the Third Thursdays podcast, Ruthie Goodboe and Bud Bobber will share their insights on this important topic.
Brian in Brief NLRB Issues Proposed Joint-Employer Rule NLRB Strategic Plan: Resolve More Cases, More Quickly Other NLRB and Labor Developments
The National Labor Relations Board (NLRB) reinstated its pre-2014 standard for determining whether an individual is an independent contractor or an employee. SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019). The NLRB determined that the employer’s shuttle van drivers were not employees, but independent contractors.
The Duty of Fair Representation for Public Sector Unions in the Wake of Janus. A Recent District Court Ruling May Signal Change
On February 22, 2018, in anticipation of the Supreme Court’s ruling in Janus that fair share fees for public sector employees are unconstitutional, the International Union of Operating Engineers, Local 150, filed a lawsuit seeking to strike down an Illinois law that compels the union to represent employees who decline to become dues-paying union members. The lawsuit, filed in U.S. District Court in Chicago, names the Illinois Attorney General and the Executive Director of the Illinois Labor Relations Board as defendants. Local 150 argues that the law requiring it to negotiate on behalf of all workers in the bargaining unit violates the union and dues-paying members’ constitutional free speech rights under the First Amendment.
I recently wrote about the January 25 decision from the National Labor Relations Board that makes it easier for businesses to classify their workers as independent contractors (SuperShuttle DFW, Inc.). You can read the full article here. In a nutshell, now that the Board is comprised of Trump appointees and majority Republican, it reversed a 2014 Obama-era decision that claimed to have “refined” the independent contractor test, but in practical terms, had made it harder to classify workers as contractors. The SuperShuttle case overturned the 2014 case and returned to a more balanced standard, one that gives more of an equal weight to both the right-to-control aspects of the relationship and the role of the workers’ entrepreneurship in operating their own businesses.
Another Obama-Era NLRB Precedent Bites the Dust: A Swing Back Toward the Importance of "Entrepreneurial Opportunity" in Independent Contractor Analysis
On January 25, 2019, the National Labor Relations Board (“NLRB”) issued its decision in SuperShuttle DFW, Inc. and Amalgamated Transit Union, overturning the Obama-era decision in FedEx Home Delivery, which downplayed the role of entrepreneurial opportunity in the test to determine whether individuals are independent contractors.
John Ring, NLRB Chairman, has sent a five-page letter to several members of Congress in response to their request for the NLRB to withdraw its Notice of Proposed Rulemaking on the joint-employer standard.
While employers would universally agree that communication with their employees is essential, opinions vary on whether it makes sense to proactively talk to employees about unions and union representation. In the first Third Thursdays podcast, Ruthie Goodboe will share her thoughts on this important topic.
A U.S. Circuit Court of Appeals partially upheld the Obama-era standard the National Labor Relations Board (NLRB) adopted for determining whether two entities are joint employers under the National Labor Relations Act (NLRA). Browning-Ferris Industries of Cal., Inc. v. NLRB, No. 16-1028 (D.C. Cir. Dec. 28, 2018).
Be Fair to Unfair Labor Practice Strikers, Labor Board Says To ensure adequate staffing and continuity of patient care, hospitals faced with impending strikes by registered nurses often contract with employment agencies to supply temporary replacements. Typically, these agencies require the hospitals to ensure employment of the replacements for multiple days, no matter how long the strike lasts. These contractual obligations often are a reason hospitals may refuse to reinstate strikers at the end of a strike, postponing reinstatement until the contractual obligation is fulfilled. In Pacific Mutual Door, 278 NLRB 854, 856 (1986), the National Labor Relations Board (NLRB) held that fulfillment of a short, multi-day contract obligation with an employment agency that supplied the employer with temporary replacements for strikers was a lawful reason for refusing to reinstate returning strikers until the obligation was fulfilled, and not at the end of the strike.
Workplace Law Predictions For 2019
A 2019 L&E Forecast for In-House Counsel, Part III: Section 7 and Joint Employment Issues on the Horizon
In 2019, employers can expect positive developments as the National Labor Relations Board (NLRB) addresses a number of significant issues under the National Labor Relations Act (NLRA). Most significantly, we will see the Board continue to reverse Obama-Board decisions that had dramatically expanded the number of companies that would be deemed joint employers and the nature and scope of what employee concerted activities are protected under Section 7 of the Act.
The National Labor Relations Board (NLRB) has suspended briefing in a case on whether National Labor Relations Act (NLRA) Section 9(a) bargaining relationships in the construction industry may be established by contract language alone. The union that brought the underlying charge in the matter withdrew the charge.
National Labor Relations Board (NLRB) Chairman John Ring has announced that revisions to the Board’s election rules are a “long-term” action item. This may indicate the revisions to the Obama-era election rules (in effect since April 2015) are less of a priority for the upcoming year than other Board initiatives.
On December 4, 2018, the National Labor Relations Board (the “Board”) held that the University of Chicago violated the National Labor Relations Act (the “Act”) by refusing to recognize and bargain with student library workers. In doing so, the Board side-stepped the question of the continuing applicability of its 2016 Columbia University decision, which recognized student assistants at private universities as employees with collective bargaining rights. That decision prompted a wave of student organizing, with resulting clashes between student unions and college and university administrations.
The National Labor Relations Board has once again extended the deadline for submitting comments regarding its proposed rulemaking on the standard for determining joint-employer status under the National Labor Relations Act, this time to January 14, 2019. Replies to comments submitted during the initial comment period must be received by the Board on or before January 22, 2019.
Employees of the National Labor Relations Board (NLRB) have publicly protested a decision by NLRB Chairman John Ring and NLRB General Counsel Peter Robb to reopen labor contracts covering employees’ terms and conditions of employment, according to media reports.
The National Labor Relations Board is affording dozens of employers the chance to have cases involving the legality of their workplace rules re-evaluated under a 2017 Board decision. The Board decision overruled Obama-era Board precedent that hampered employers’ ability to maintain workplace conduct rules without running afoul of the National Labor Relations Act. The Board’s new initiative, first reported by Bloomberg Law, involves remanding numerous cases that held against employers for reconsideration by NLRB administrative law judges.
The National Labor Relations Board has extended the deadline for submitting comments regarding its proposed rulemaking on the standard for determining joint-employer status under the National Labor Relations Act to December 13, 2018.
National Labor Relations Board’s field office staff have been directed to prosecute a broader array of cases against unions that engage in negligent behavior toward their members, according to an internal memorandum obtained by Bloomberg BNA.
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the fall 2018 issue of the Practical NLRB Advisor. This issue examines the Supreme Court’s decision in Epic Systems Corp. v. Lewis, which is destined to have a profound impact on the labor movement and on labor-management relations.
President Donald Trump nominated Mark Gaston Pearce for a third term on the National Labor Relations Board (NLRB) on August 28. Pearce’s nomination came despite widespread criticism from Republicans and business groups who viewed Pearce as having taken an anti-business approach on many issues before the Board.
Employee walkouts and protests are likely to occur on a large scale starting today and lasting through Thursday, spurred on by the union-supported “Fight for $15” movement and in anticipation of the upcoming midterm elections. Employees working at fast-food establishments, janitors, caregivers, and even some higher education adjunct professors are expected to be the primary participants, but it would not be surprising to see other workers seeking higher pay and possible union status join in as well. What do you need to know about the expected protests?
The National Labor Relations Board has published a proposed rule outlining a new standard for determining joint-employer status under the National Labor Relations Act. The Board’s decision to use its rulemaking authority — rather than fact-specific decisional law — could provide employers the clarity and predictability needed to avoid unwanted joint-employer relationships.
NLRB Issues Joint-Employer Proposal. Whoa. Today, the National Labor Relations Board (NLRB) published a proposed rule regarding its joint-employer standard. The proposed rule would undo the Board’s 2015 Browning-Ferris Industries decision and return the Board to a “direct and immediate” joint-employer standard. More details here. Back in June, NLRB Chairman John Ring promised that joint-employer regulation would issue before the end of summer, and he was right on target: autumn begins one week from tomorrow.
Proposed Joint-Employer Rule Would Reverse NLRB's Controversial Browning-Ferris Case and Restore "Substantial Direct and Immediate Control" Standard
The National Labor Relations Board (the NLRB or Board) has issued a proposed rule revising the test for whether two employers are considered “joint employers” under the National Labor Relations Act (NLRA). The proposed rule, scheduled to be published in the Federal Register on September 14, 2018, is open for public comment through November 13, 2018. Comments can be submitted via hard copy or electronic filing at www.regulations.gov.
The National Labor Relations Board has announced that it will publish a “Notice of Proposed Rulemaking” in the Federal Register regarding its joint-employer standard. The notice will be published on Friday, September 14. The proposed rule will adopt the pre-Browning-Ferris standard for determining if two or more employers are joint employers of employees.
The National Labor Relations Board has upheld an Administrative Law Judge’s decision to invalidate 11 severance agreements that provided payments to employees laid off shortly after an election in violation of the National Labor Relations Act. The 11 individuals were awarded full reinstatement and back pay. Terex, 366 N.L.R.B. No. 162 (Aug. 21, 2018). The Board found the factors set out in its decision in Independent Stave, 287 NLRB 740 (1987), weighed in favor of invalidating the severance agreements.
Effectively Countering the NLRB’s Continued Obsession With Default Language in Informal Settlement Agreements
The majority of unfair labor practice (ULP) charges against employers are either withdrawn, dismissed or settled. My February 7, 2014 article discussed the former general counsel’s (GC) 2011 mandate (GC Memo 11-04) requiring National Labor Relations Board (NLRB) Regional Directors to include “default language” in every informal settlement agreement. Employers and their counsel face significant potential issues when a default provision is inserted in such agreements. Among other things, a default provision gives the NLRB the right to revoke the entire settlement if a Regional Director finds, after an investigation, that future unfair labor practice charges have arguable merit.
Business lobbyists reportedly are urging the Trump Administration to not re-nominate National Labor Relations Board (NLRB) Member Mark Gaston Pearce (D) for a third term. Pearce’s term at the five-member Board is scheduled to expire on August 27, 2018. Pearce has drawn the ire of business groups for what many believe to be an anti-business approach on many issues before the Board. Pearce would like to be re-nominated and remain on the Board. It is unclear whether Congressional Democrats will pressure the Administration to re-nominate Pearce and whether Pearce would have the votes to be reconfirmed if he is re-nominated.
The National Labor Relations Board’s General Counsel’s office has issued an internal Memorandum (“Changes to Case Processing Part 1”) to all regional directors, officers-in-charge, and resident officers announcing immediate enactment of case processing changes.
Earlier this month, the U.S. Department of Labor (DOL) handed employers a win, announcing that it was giving the notorious 2016 “Persuader Rule” the axe. The rule had delineated the bounds of an advice exception under the Labor-Management Reporting and Disclosure Act (LMRDA) and imposed additional reporting requirements on employers and labor relations consultants (third parties hired to advise on labor issues, including, among other things, unionization). The rollback of the rule is good news for employers, who not only get a reprieve from administrative reporting requirements, but can also rest easily in consulting with attorneys and other third parties regarding union and labor activities.
Public sector employees who are non-members of a union cannot be legally required to pay agency or “fair share” fees as a condition of employment, the U.S. Supreme Court has held in a 5-4 ruling. Janus v. AFSCME Council 31, No. 16-1466 (June 27, 2018).
Can You Be Held Personally Liable In An Employment Lawsuit? The Answer Lies Down A Rabbit Hole
The U.S. Supreme Court has ruled that class action waivers in employment arbitration agreements do not violate federal law. Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP et al. v. Morris et al., No. 16-300; National Labor Relations Board v. Murphy Oil USA, Inc., et al., No. 16-307 (May 21, 2018). The Supreme Court’s decision resolves the circuit split on whether class or collective action waivers contained in employment arbitration agreements violate the National Labor Relations Act. They do not, the Court ruled in a 5-4 decision. Justice Neil Gorsuch wrote for the majority of the Court. Justice Ruth Bader Ginsburg dissented, describing the majority holding as “egregiously wrong.”
The National Labor Relations Board has begun the process to consider rulemaking to establish a standard for determining joint employer status under the National Labor Relations Act, according to the Board’s filing in the Unified Agenda of Federal Regulatory and Deregulatory Actions.
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the spring 2018 issue of the Practical NLRB Advisor . This issue examines the evolution of the controversial joint-employer saga as it develops at the National Labor Relations Board (NLRB). Readers will recall that in December 2017, among the many important decisions the NLRB issued at the end of then-chairman Philip Miscimarra’s term was Hy-Brand Industrial Contractors, Ltd., which overturned the Board’s controversial decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery from 2015.
The U.S. Senate confirmed John Ring’s nomination to the National Labor Relations Board (NLRB) on April 11. Shortly thereafter, President Donald Trump named Ring as Board Chairman.
The Don’ts of IBEW Local’s Dues Policy IBEW Local 58’s policy requiring union members who want to resign their membership in the union or opt out of dues deduction to appear in person at Local 58’s union hall with a picture identification and a written request indicating the member’s intent violates the National Labor Relations Act, the U.S. Court of Appeals for the District of Columbia has ruled, upholding a decision of the National Labor Relations Board (NLRB).
In a rare procedural move that caught many by surprise, the National Labor Relations Board announced on Wednesday that it will soon start the rulemaking process to clarify the current joint employment standard. Perhaps frustrated by uncertainty resulting from the recent reversal of a Board decision on the topic and the seemingly stalled litigation sitting at the D.C. Circuit, Chairman John Ring said that he hopes NLRB rulemaking would bring resolution to this matter “as soon as possible.”
In a speech advertised as addressing the country’s infrastructure woes, and his $1.5-trillion plan for a fix, President Donald Trump reportedly told the crowd that he thought he was winning over union leaders.
The U.S. has more than 6,000 charter schools. They are authorized in almost every state. While state laws vary, their purpose is the same: to permit alternatives to traditional public schools, unbound by local school districts or district-wide collective bargaining agreements that can stifle innovation.
Floor consideration of the nomination of Republican John Ring to be a member of the National Labor Relations Board is scheduled to take place in the Senate on April 9.
The National Labor Relations Board has vacated its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Feb. 26, 2018), and restored the Board’s union-friendly joint employer test set forth in Browning-Ferris Industries, 362 NLRB No. 186 (2015), which Hy-Brand overruled.
The song “Changes,” written by Phil Ochs, provides an opportune prism to examine the arguably cataclysmic changes implemented and portended by the new employer-friendly majority at the NLRB at the end of 2017 and expected in 2018.
Executive Summary: The National Labor Relations Board (“NLRB” or “Board”) has vacated its decision in Hy-Brand Industrial Contractors, Ltd., (“Hy-Brand”), thereby reinstating the joint employer standard created by the Obama Board in the Browning-Ferris Industries of California, Inc. (“BFI”) decision. The Board’s reversal was due to an apparent conflict of interest created by Board Member William Emanuel’s participation in the Hy-Brand decision.
Imagine one of your worst corporate nightmares comes true: a government body has determined that you have misclassified your workers, and they should be considered employees and not contractors.
Management-side labor and employment lawyer John Ring has been nominated by President Donald Trump to fill the vacant seat on the five-member National Labor Relations Board. If confirmed, Ring would replace former-Board Chairman Philip Miscimarra, a Republican, and restore a 3-2 Republican majority to the Board. Miscimarra’s term ended on December 16, 2017. Ring’s confirmation hearing before the U.S. Senate Health, Education, Labor and Pensions Committee, originally scheduled for February, is scheduled to take place on March 1, although some expect it may be further postponed.
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the winter 2018 issue of the Practical NLRB Advisor. This issue examines how the National Labor Relations Board (NLRB) is moving forward after a slow start during the Trump administration’s first year in office—in which it took nearly nine months to realize a short-lived Republican majority.
National Labor Relations Board Administrative Law Judge Arthur J. Amchan had ruled in Velox Express, Inc. that misclassification of employees as independent contractors violates Section 8(a)(1) of the National Labor Relations Act. 2017 NLRB LEXIS 486 (Sept. 25, 2017). Now the case is before the NLRB, and the Board has invited interested parties to file amicus briefs to address “under what circumstances, if any, the Board should deem an employer’s act of misclassifying statutory employees as independent contractors a violation of Section 8(a)(1) of the National Labor Relations Act.” Briefs must be submitted on or before April 16, 2018.
Employers should take note of several important pronouncements by the National Labor Relations Board issued at the end of 2017, reversing key Obama-Era NLRB rulings and interpretations of federal labor law. More such rulings are expected in 2018 and beyond under a new Republican dominated Board.
The National Labor Relations Board has taken another giant step toward repudiating the Obama-era Board’s highly restrictive interpretations of work rules, set forth in Lutheran Heritage-Livonia, 343 NLRB 646 (2004).
Much of the employer community may be giddy as a result of the December 14 and 15 National Labor Relations Board decisions issued in the twilight of Chairman Philip Miscimarra’s term. Taking final advantage of a 3-to-2 Republican majority, the Board issued employer-friendly decisions overturning Obama-Board precedents on the standards for determining appropriate bargaining units, joint employer liability, and the lawfulness of employers’ facially neutral workplace rules and policies. Additional Obama-Board precedents may be future targets, but, with Board membership now comprising two Republicans and two Democrats, employers must wait. While President Donald Trump is expected to fill the fifth seat with another Republican, it may be many months before a new member is confirmed.
John Ring, a management-side labor and employment attorney, reportedly is undergoing background checks to become President Donald Trump’s nominee to fill the seat on the National Labor Relations Board that Chairman Philip Miscimarra vacated on December 16. Whether Ring will be the Administration’s nominee is uncertain, but his name is at the top of a short list of contenders for the seat. If nominated and confirmed, Ring would return the Board, which currently has four Members, to a 3-2 Republican majority.
NLRB Issues Reversal of Obama-Era Precedent on Settlements and Seeks Comment on Quickie Election Rule
As anticipated, the new National Labor Relations Board Republican majority has begun a dramatic shift in labor policy.1 As the clock ticked down on Chairman Philip Miscimarra’s term, which expired on December 16, 2017, and with uncertainty as to when the Republicans will regain their majority status, employers were hopeful that the Board would overturn some of the most controversial of the Obama-era policies and decisions, consistent with Miscimarra’s dissents in many of those decisions.
As part of the National Labor Relations Board’s spate of recent decisions reversing Obama-era Board precedent, on December 15, 2017, the Board in PCC Structurals, Inc., 365 NLRB No. 160 (2017) overturned Specialty Healthcare, 357 NLRB No. 83 (2011), reinstating the Board’s prior standard for determining the appropriateness of a petitioned-for bargaining unit. The Board explicitly rejected Specialty Healthcare’s “overwhelming community of interest” standard, effectively rebalancing the scales and removing the heightened burden placed on employers attempting to demonstrate that other excluded employees belong in a petitioned-for bargaining unit.
Last week we issued two alerts (here and here) covering the winds of change blowing at the NLRB. The strong winds continued on Friday, December 15 as the Board overruled two more decisions: one addressing an employer’s duty to bargain; the other addressing the proper analysis for determining appropriate voting units in union elections.
NLRB Rejects Browning-Ferris and Returns to Prior Joint-Employer Standard that Benefits Union and Non-Union Employers Alike
On December 14, 2017, just two days before the end of Chairman Philip Miscimarra’s term, the new Republican majority at the National Labor Relations Board continued its shift in labor policy and issued yet another reversal of significant Obama-era precedent. Specifically, the Board issued a 3-2 decision in Hy-Brand Industrial Contractors, Ltd.1 (“Hy-Brand”), which rejected the controversial Browning-Ferris2 decision and returned to its prior test for joint employers.
In two separate decisions last week, the National Labor Relations Board (NLRB) reversed recent rulings regarding the joint employer standard and workplace policies.
Just hours before Chairman Miscimarra’s tenure is to end, the National Labor Relations Board (NLRB) has issued two decisions with sweeping impact. Together, they overturn many of the Obama Board’s most controversial decisions that radically departed from decades-long precedent under the National Labor Relations Act (NLRA). We will discuss the Board’s decision regarding employer policies in another article. Our subject here is the Board’s decision yesterday that overturned the 2015 Browning-Ferris Industries case.
Two weeks after newly appointed National Labor Relations Board General Counsel Peter Robb signaled his intent to ask the Board to consider overruling many union-friendly precedents of the Obama-era Board, the Board has beaten him to the punch. Over the course of two days (December 14 and 15), the Board repudiated three of the Obama Board’s most vexing decisions – on joint employer status (Browning-Ferris industries / HY-Brand Industrial Contractors), micro-bargaining units (Specialty Healthcare / PCC Structurals) and employer workplace rules and policies (Lutheran Heritage-Livonia / The Boeing Company).
On December 11, 2017, the NLRB ruled that an ALJ in Pittsburgh properly accepted a partial settlement offered by University of Pittsburgh Medical Center (UPMC) despite objections from the agency’s general counsel and the charging party. The decision swiftly reverses Obama-era policy and restores the “reasonableness” settlement standard.
In a stunning development, the National Labor Relations Board has overruled Specialty Healthcare, the so-called “micro-unit” decision and replaced the “overwhelming community-of-interest” standard adopted there with the traditional “community-of-interest” standard for determining an appropriate bargaining unit in union representation cases. PCC Structurals, Inc., 365 NLRB No. 160 (December 15, 2017).
Earlier today, the Trump NLRB, in a 3-2 decision, issued its most significant decision yet. The Board overturned prior Board precedent established in Lutheran Heritage, 343 NLRB 646 (2004) regarding work rules and potential interference with section 7 rights. The Trump NLRB reached its decision in Boeing Co. and Society of Prof. Eng. Employees Local 2001, establishing a new standard while noting, “Paradoxically, Lutheran Heritage is too simplistic at the same time it is too difficult to apply . . . produc[ing] rampant confusion for employers.”
The newly constituted National Labor Relations Board announced that a troublesome joint-employer test adopted in 2015 would be immediately scrapped, instead reaffirming its prior reasonable standard for determining joint-employer status. Starting at once, the Board will follow the traditional common law principles requiring a finding of direct and immediate control in order to find that two entities are joint employers.
The National Labor Relations Board just relieved employers of a great deal of uncertainty surrounding seemingly innocuous workplace rules and handbooks. The newly constituted NLRB issued its first round of significant decisions this week, taking square-aim at controversial doctrines developed during the past eight years. One target in its sights: the Board’s interpretation of Lutheran Heritage, the seminal 2004 decision involving workplace civility rules.
The National Labor Relations Board has overruled, 3-2, Browning-Ferris Industries, 362 NLRB No. 186 (2015) and returned to the pre–Browning Ferris standard that governed joint-employer liability. Hy-Brand Industrial Contractors Ltd., 365 No. 156 (December 14, 2017).
Executive Summary: In the past two weeks, the National Labor Relations Board (NLRB) has made three important announcements that signal likely changes to come under the Trump administration.
Senator Patty Murray (D-Wash.), Ranking Member, Committee on Health, Education, Labor and Pensions, and Senator Elizabeth Warren (D-Mass.) have written to new NLRB General Counsel Peter B. Robb “to express serious concerns regarding Memorandum 18-02, which [Robb] issued to National Labor Relations Board  Regional Directors on December 1, 2017.” For more on NLRB General Counsel Memo 18-02, see our article, New Labor Board General Counsel Issues Plans for Reversing Course. The Senators made a number of detailed requests for information and documents regarding Robb’s decision making and thought process and requested that he provide a response by December 22.
Many of us on the management side have been wondering and speculating as to what changes the new NLRB will be making now that Trump’s appointees have been confirmed. Unlike many other agencies, at the NLRB, its General Counsel has the primary authority to set policy because his/her office acts as the prosecutor for unfair labor practice changes and has broad discretion to determine what charges will be prosecuted.
Few issues were more dramatically debated during the 2016 U.S. election than the country’s participation in trade agreements, particularly in the North American Free Trade Agreement (NAFTA) and the Trans Pacific Partnership (TPP). Since the election, the U.S. has withdrawn from TPP and is seeking renegotiation of NAFTA.
The newly installed General Counsel for the National Labor Relations Board published a memorandum late last week indicating that the General Counsel is preparing to push to reverse many of the controversial positions taken during the Obama era, restoring much-needed balance and tilting the labor law playing field back to a reasonable level. Peter Robb’s December 1 memo is a harbinger of significant changes to the agency’s enforcement posture going forward, and should give hope to employers across the country – not just those with unionized workforces – that change will soon be on the way.
The National Labor Relations Board's new General Counsel, Peter Robb, has wasted no time in taking steps to chart a new direction for the Board. Two weeks after being sworn in as General Counsel, Robb has issued Memorandum 18-02, instructing NLRB regional directors on which types of charges should be submitted to his office for advice, and rescinding policy memoranda issued by his predecessor. While the memorandum is relatively brief, its substance is significant and telling. Many of the contentious decisions issued and policy shifts undertaken by the prior administration will likely be getting a second look.
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the fall 2017 issue of the Practical NLRB Advisor. This issue considers how the confirmation of management-side attorney Peter B. Robb as the new National Labor Relations Board (NLRB) General Counsel will affect labor law policy. With the Senate’s confirmation of Robb to replace outgoing General Counsel Richard F. Griffin, Jr., the agency appears headed for significant change.
It is no secret that labor laws have been unable to keep pace with the changing economy. Recently, however, it appears the effort to spur change has been resuscitated, as proposals come in from the left (former SIEU head Andrew Stern) and the right (R Street Institute’s Eli Lehrer and Garret Watson), and pressure is applied from the bench (eastern Pennsylvania federal judge Hon. Michael Baylson).
The U.S. House of Representatives has passed the “Save Local Business Act” (H.R. 3441), which would add a new, narrow definition of “employer” to the National Labor Relations Act (and the Fair Labor Standards Act) and which clarifies the definition of joint employment under both federal statutes.
The National Labor Relations Board (NLRB) recently announced that it negotiated a $21.6 million settlement on behalf of the International Brotherhood of Teamsters to settle allegations that VIUSA, Inc. refused to hire a group of Teamster-represented workers at the Ford Motor Company assembly plant in Louisville, Kentucky. According to the October 30 announcement, the NLRB will distribute about $14.4 million in backpay to about 257 workers as payment for VIUSA’s allegedly “casting aside” Teamsters Local 89 employees in favor of United Auto Workers (UAW) employees at lower wages. The remaining $7.2 million will go to the Teamsters Central States Pension Fund to compensate for missed benefit contributions.
Employers who have been keeping up with the National Labor Relations Board’s (NLRB) decisions over the past eight years may be pleasantly shocked to learn that an Administrative Law Judge (ALJ) just upheld an employer’s seemingly broad rule providing that “all documents are considered confidential” and are not to be “taken off the premises.” They also will be shocked to learn that the same ALJ upheld the employer’s blanket rule prohibiting texting anywhere.
On September 28, 2017, the Supreme Court of the United States announced that it will grant certiorari in a case that will test the constitutionality of requiring mandatory payment of “fair share” union dues to be paid by non-member, non-consenting public sector workers.
In a move that must have labor unions across the country trembling with fear, the Supreme Court today announced that it will once again take up the issue of whether public sector agency shop fee arrangements are prohibited by the First Amendment. If the Court rules as expected and strikes down these common arrangements, it would be a big blow to the influence that labor has across the country (Janus v. American Federation of State, County, and Municipal Employees, Council 31).
As the Trump administration begins to exercise its power through U.S. agencies enforcing federal employment laws, two Republican appointees will soon reshape the National Labor Relations Board (NLRB) with a majority presumably more sympathetic to business interests than that of the Obama-era Board. After the pro-labor policy changes wrought by the Obama NLRB, pro-business groups anticipate the possibility of restoring traditional union election practices, returning to the conventional view of joint employer relationships, and reinstating business owners’ ability to impose effective workplace rules. Employers’ patience will be tested, however, considering the procedural hurdles facing reversals of administrative doctrine and rules.
Employees had no right to union representation in their employer’s peer review committee proceedings, the U.S. Court of Appeals for the District of Columbia Circuit has ruled. Midwest Division – MMC, LLC, dba Menorah Medical Center v. NLRB, No. 15-1312 (D.C. Cir. Aug. 18, 2017).
Workers at Nissan’s factory in Canton, Mississippi, have strongly rejected representation by the United Auto Workers — 63% to 37% — despite a multi-year organizing campaign. Nissan spent enormous resources in a counter-campaign that included a local advertising blitz consisting of television commercial spots, newspaper and radio advertisements, and Spotify ads. Nissan’s expenditure to stay union-free in the traditionally union-free South provides a valuable lesson to employers: Do not be complacent about the prospect of unionization, regardless of location and organizing history.
Apparently, reports of the demise of organized labor are greatly exaggerated. According to a Gallup poll conducted from August 2 to 6, 2017, 61% of adults answered that they approve when asked, “Do you approve or disapprove of unions?” This is the highest percentage since 2003, when 65% said they approve.
Among the most crucial federal agencies undergoing a transformation under the new presidential administration is the National Labor Relations Board (NLRB). During the eight years of the Obama administration, with the Board stocked with a majority of Democratic appointees, the NLRB issued decision after decision tilting the playing field decidedly in favor of unions and workers. However, the five-member NLRB is poised to soon be led by a majority of Republican appointees, and we expect changes to soon follow.
Josh Eidelson from Bloomberg reported that the National Labor Relations Board (NLRB) issued a complaint against gig economy mainstay Handy earlier this week, alleging that the on-demand workers who provide home cleaning services through its online platform are actually employees and not independent contractors. The complaint was issued on August 28 out of the NLRB’s Boston office; a copy has not yet been made public, but if Eidelson’s report is accurate (and there is no reason to think it isn’t), this is a troubling sign for gig businesses.
The National Labor Relations Board has found the individuals who produce electronic content for viewing during professional basketball games are employees, rather than independent contractors. Minnesota Timberwolves Basketball, LP, 365 NLRB No. 124 (2017). The Board reversed the decision of an NLRB regional director and reinstated a representation petition filed by the International Alliance of Theatrical Stage Employees. For more on this development, click here.
With the recent confirmation of Marvin Kaplan to the National Labor Relations Board, the Obama (pro-union) Board is officially transitioning into a Trump (pro-business) Board. With that, Republicans hope, will come a change in the Board’s jurisprudence with respect to labor-friendly rulings by the Obama Board.
Earlier this month, a federal jury acquitted four members of Teamsters Local 25 in Boston on charges of criminally threatening Padma Lakshmi, the host of television’s popular cooking competition show “Top Chef.” The charges alleged that union members conspired to extort money from the show’s production company. The case arose out of events in June of 2014, when the television series was filming at the Steel & Rye restaurant just south of Boston. At the epicenter of the extortion allegations was an underlying labor dispute concerning the show’s use of nonunion vehicle drivers. Teamsters Local 25 wanted the show to hire Teamster drivers. But the employer declined, explaining that it already had other (nonunion) employees on the payroll who performed all needed driving tasks.
There are films with clear labor law undertones, such as On The Waterfront and Norma Rae. The National Labor Relations Act and its teachings, however, lurk in other pop culture examples.
In Mondelez Global LLC v. International Association of Machinists and Aerospace Workers District No. 8, an employer prohibited its unionized employees from working seven consecutive days without a 24-hour rest period. The employer relied on the One Day Rest in Seven Act (“ODRISA”), 820 ILCS 140/1 in support of the rule. The Union filed many grievances claiming the rule violated the overtime provision in the Union’s contract. The grievances were consolidated and appealed to arbitration where an arbitrator ruled in the Union’s favor, “finding that a binding past practice had developed … which allowed employees to volunteer to work seven consecutive days without a 24-hour period of rest.” The employer filed a court action seeking to vacate the arbitration award on the ground that the award was contrary to the public policy contained in ODRISA.
Defending Employers’ Access to Legal Advice: Comments Filed Supporting DOL's Rescission of Controversial Persuader Rule
August 11, 2017, was the deadline for interested parties to submit comments regarding the U.S. Department of Labor’s (DOL) proposal to formally rescind its controversial persuader rule, which was issued in 2016 under the Obama administration. At last count, well over 1,000 comments were submitted and are now available on the DOL’s website, including comments from employers, trade associations, lawyers, legal ethics experts, and others supporting rescission. Unsurprisingly, unions and union organizers also have commented and urged the DOL to leave the rule in place—no doubt because they believe it will help them in union elections.
The U.S. Senate narrowly confirmed Marvin Kaplan to one of two vacant seats on the National Labor Relations Board on August 2, 2017. Kaplan was sworn in on August 10. Kaplan is a former counsel to the Commissioner of the Occupational Safety and Health Review Commission. His confirmation leaves one vacant seat on the five-member Board. President Donald Trump has nominated William Emanuel, a management-side lawyer working in private practice, for the remaining seat.
Goldberg Segalla’s Labor Law Update keeps insurers, contractors, construction managers, developers, and other clients involved in construction informed about significant changes and cases involving New York’s “Scaffold Law” — Labor Law §§200, 240(1), and 241(6).
On August 4, 2017, the U.S. Court of Appeals for the District of Columbia Circuit refused to enforce a holding by the National Labor Relations Board (Board) that the Cable News Network (CNN) was a joint employer.1 In the opinion, authored by Chief Judge Merrick Garland, the court found that the Board failed to adequately grapple with its conflicting precedent concerning what relationships constitute “joint employment.”
In an amicus brief filed with the U.S. Supreme Court, the U.S. Department of Justice reversed itself and argued for the legality of mandatory arbitration agreement provisions waiving employees’ rights to bring class actions under the National Labor Relations Act.
If at first you don’t succeed, try, try again.
Here We Go Again! DOL Proposes to Rescind the Permanently Enjoined “Persuader” Rule (and Perhaps Revise It)
The U.S. Department of Labor (DOL) moved one step closer to undoing President Obama's permanently enjoined “persuader activity” regulation when, on June 12, the agency issued a notice of proposed rulemaking (NPRM) for reverse rulemaking to rescind the rule and perhaps revise it. According to the NPRM, the DOL will be accepting public comments on the rule until August 11, 2017.
With little fanfare, the Second Circuit Court of Appeals recently upheld a National Labor Relations Board decision striking down Whole Foods’ policies prohibiting workplace audio or video recording without prior approval from management. In an unpublished summary order with no precedential value, the Second Circuit ruled that the NLRB’s decision was supported by substantial evidence and consistent with the National Labor Relations Act.
1. Handbook rules requiring employees to obtain preapproval to use cameras and other recording devices at work are not per se unlawful, according to the National Labor Relations Board. Mercedes-Benz U.S. Int’l Inc., 365 NLRB No. 67 (May 16, 2017).
A New York City ordinance requiring car wash companies to post a higher surety bond if they do not sign a union bargaining agreement covering their employees is invalid because it unlawfully favors unionization, and therefore runs afoul of the National Labor Relations Act, a federal district court judge has ruled on May 26, 2017. Association of Car Wash Owners v. City of New York, No. 15 Civ. 8157. The ordinance was signed by Mayor Bill de Blasio on June 29, 2015, and the lawsuit was filed in 2015 by the Association of Car Wash Owners representing 100 car washes within the City.
In what appears to be a first-of-its kind decision, the National Labor Relations Board recently determined that an employer committed an unfair labor practice when one of its managers asked a pointed question via text message to an employee about whether his loyalties lie with the company or with the union. While most employers know – or quickly learn – that they should avoid interrogating their employees about union matters, this decision demonstrates that the Labor Board could take a very broad approach when determining the contours of the law, and serves as an important lesson for management personnel dealing with a union drive (RHCG Safety Corp. and Construction & General Building Laborers, Local 79).
Agreements within employment contracts and employee handbooks continue to be subject to strict scrutiny by the NLRB. In a recent decision, the Sixth Circuit enforced an NLRB Order finding multiple NLRA violations for prohibiting employees from engaging in “collective bargaining.” The issue should be of interest to all employers given the common misconception that the NLRA only applies to unionized employers.
The U.S. Court of Appeals for the District of Columbia rejected the chance yesterday to revive long-held precedent which for many years had protected employer witness statements from disclosure to unions before an arbitration hearing.
Knowledge is power, especially for businesses. Protecting that knowledge is often key to remaining competitive. Similarly, knowing or sharing information about wages, hours and working conditions is often important to employees. Sometimes these interests collide requiring the National Labor Relations Board (NLRB) or a court to decide whether an employer’s policies, specifically confidentiality policies, go too far.
Philip Miscimarra was named Chairman of the National Labor Relations Board by President Trump on April 24, 2017. He had been named Acting Chairman soon after President Trump’s inauguration.
Labor Board Finds Nothing Special About Burger Chain’s Uniforms
Building off of what organizers see a successful February 16 ‘Day Without Immigrants,’ a second series of protests and strikes has been scheduled for May 1.
Two years after the National Labor Relations Board’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), which overturned 30 years of precedent, 57 members of Congress, mostly Republicans, supported by business owner advocacy group Workforce Fairness Institute, are urging the Subcommittee on Labor, HHS & Education Committee on Appropriations “to include a one-year hold on the NLRB’s harmful and confusing definition of joint employers [in Browning-Ferris] in the FY18 Labor, Health and Human Services, Education, and Related Agencies Appropriations legislation.” In a letter dated April 5, 2017, to the subcommittee Chairman and Ranking Member, the 57 legislators cited a report by the U.S. Chamber of Commerce that warned the decision will result in decreased business values, increased operational and legal costs, less growth, and fewer jobs.
The NLRB Rules That It Will Assert Jurisdiction Over Nonteaching Employees of Religious Institutions And Nonprofit Religious Organizations
In its 2014 landmark decision in Pacific Lutheran University (PLU), the National Labor Relations Board (NLRB) held that it will assert jurisdiction over faculty at religious colleges and universities unless the college or university can show that it holds the faculty out “as performing a specific role in creating or maintaining” the religious educational environment. We previously reported on that decision here. The NLRB was very specific in PLU that its holding only applied to faculty employed at religious colleges and universities.
Unions won 72% of all representation elections conducted by the National Labor Relations Board in 2016, and 74% when the election involved a small unit of 49 workers or less, according to a Bloomberg BNA report based on NLRB data. These percentages are a four-year high for unions. At the same time, fewer workers were organized — 57,800 (lowest in four years), down from 63,300 new members in 2015.
On Thursday, March 9, 2017, the U.S. Court of Appeals for the District of Columbia Circuit held long-awaited oral arguments in Browning-Ferris International v. NLRB. The case will be critical in defining joint employment under the National Labor Relations Act, and could have significant ramifications throughout the business community.
On February 24 , 2017, a two-member majority (Members Mark Gaston Pearce and Lauren McFerran) of the National Labor Relations Board, over the dissent of Acting Chairman Philip Miscimarra, struck down yet another handbook policy in Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38 (2017). The fact that following the 2016 elections the former Board still retains a 2-1 majority, with two Board vacancies to fill, is frustrating enough. But using that majority to apply the Board's current case law under Lutheran Heritage Village-Livonia, 343 NLRB No. 646 (2004), and standards under Purple Communications, 361 NLRB. No. 126 (2014)—which almost surely will change when the Board attains a new majority—adds insult to injury. A new Board is widely expected to reverse or significantly modify current Board law regarding the "chilling" of concerted activity by isolated employee handbook statements (Lutheran Heritage) and the right of employees to use company email at work for non-business purposes to solicit unionization and engage in other concerted activities (Purple Communications). The question is when will that occur? In the meantime, current NLRB General Counsel Richard Griffin will continue to issue complaints and advance cases under the law as interpreted by the former Obama Board. Griffin's term expires in November of 2017.
Activists throughout the U.S., but focused in Washington, D.C., are planning a protest that exhorts employees not to report to work on February 16, 2017, as one measure to demonstrate what a “Day Without Immigrants” can mean to the economy.
What began as a rumor has now become a real possibility for significant grassroots action. Activists who oppose President Trump have called for a national general strike on Friday, February 17, 2017. According to main organizing group, Strike4Democracy, President Trump has “put our foreign policy and our very democracy in peril” by taking numerous actions that, “signal a move away from democratic governance.”
NLRB General Counsel Looks to Expand Reach of Federal Labor Law to Private Colleges and Universities; Believes that Scholarship Football Players are Employees
Since 2014, the National Labor Relations Board has issued three significant decisions related to union organizing at private universities: Pacific Lutheran University; Columbia College; and Northwestern University. We previously reported on each of these decisions here, here, and here. All three cases were “representation cases” and arose in the context of a union’s attempt to organize graduate students, student-athletes, or faculty. In those cases, however, the NLRB did not address how the unfair labor practice provisions of the National Labor Relations Act apply to students or workers at private universities.
As a result of the Supreme Court’s recent decision to grant certiorari and address the dispute over whether class and collective action waivers are lawful in an arbitration agreement, many employers have asked whether similar cases pending at the NLRB will be held in abeyance while the Court resolves this issue. The NLRB’s general counsel recently issued a memorandum to the agency’s regional offices providing a partial answer to this question.
The NLRB Throws a Flag on NCAA Division I Football and Explains Some Rules to Colleges and Universities
In an official memorandum entitled “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context,” the National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., explains several NLRB enforcement positions on National Labor Relations Act (NLRA) employee status in the university setting. Most dramatically, the memorandum, which was issued on January 31, 2017 to all Regional Directors, Officers-in-Charge, and Resident Officers, declares National Collegiate Athletic Association (NCAA) football players are actually employees. “We conclude that scholarship football players in Division I FBS private sector colleges and universities are employees under the NLRA, with the rights and protections of that Act.”
For the fourth time, Secretary of Labor nominee Andrew Puzder’s hearing before the Senate Health, Education, Labor and Pensions (HELP) Committee has been postponed, this time indefinitely, according to Politico. The Wall Street Journal reports the postponement is the result of “persistent questions about his ethics and financial paperwork” and that the hearing will not be rescheduled until the HELP Committee receives Puzder’s filing with the Office of Government Ethics.
On January 23, 2017, in his first full weekday in office, President Donald Trump fulfilled a campaign promise by signing a presidential memorandum taking executive action formally withdrawing the United States from the 12-nation Trans-Pacific Partnership (TPP) trade agreement. TPP included Canada, Mexico, Japan, Australia, New Zealand, Chile, Peru, Malaysia, Singapore, Vietnam, and Brunei, in addition to the United States. Combined, those countries represent 40 percent of the global economy.
Forensic Examination of Plaintiff’s Electronic Devices Disallowed Because It Was Not Proportional To The Needs of the Case
District Court Judge Jorge L. Alonso recently upheld Magistrate Judge Michael T. Mason’s ruling in a sex discrimination and hostile work environment case that forensic examination of a plaintiff’s electronic devices was not proportional to the needs of the case because any benefit the inspection might provide would be outweighed by the plaintiff’s privacy and confidentiality interests.
President Trump Meets With Union Leaders On First Business Day In Office: Should Employers Be Worried?
On Monday, President Trump’s first full business day in the White House, the newly sworn-in president met with a consortium of about a dozen union leaders and members for what was described as a “listening session.” Although he had met with a similarly sized group of business executives and leaders earlier in the day, some employers might be nervous to learn about this union meeting. However, if early reports about the meeting are any indication, employers should have little concern about the meeting, which seemed to be more about job creation than labor law.
Oral argument on Browning-Ferris Industries of California, Inc.’s appeal seeking to overturn the National Labor Relations Board’s landmark joint employer decision, Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), has been scheduled for March 9, 2017, by the U.S. Court of Appeals for the District of Columbia Circuit.
President Donald J. Trump met on January 23 with several union leaders and employees in the construction and sheet metal industries, according to Politico. Unions represented at the meeting include the United Brotherhood of Carpenters, North America’s Building Trades Unions, Laborers’ International Union of North America, United Association (which represents plumbers, fitters, welders, and service techs), and Sheet Metal, Air, Rail, Transportation.
The NLRB’s “quickie election rule” (QER) is not having its desired or expected effect of energizing union organizing. According to NLRB statistics, fewer “RC” petitions (seeking union representation) were filed in FY 2016 than in FY 2015 — 2,029 vs. 2,198. (The NLRB’s fiscal year is October 1 through September 30. FY 2016 stats covered nine months of the QER.)
Several federal agencies have joined forces to release a joint Fact Sheet highlighting the various anti-retaliation provisions of the workplace laws these agencies enforce. “Retaliation Based on the Exercise of Workplace Rights is Unlawful” is a collaborative effort of the National Labor Relations Board, the Wage and Hour Division of the U.S. Department of Labor, the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance Programs.
The National Labor Relations Board (NLRB) recently issued another decision appearing to prioritize the interests of organized labor above all else. In URS Federal Services, Inc., 365 NLRB No. 1 (December 8, 2016), the two Democratic Board members, over the dissent of the lone Republican member, reversed a regional director and held that a technical violation of the Board’s representation case rules—which did not prejudice the union or impact the election in any way—was nevertheless sufficient grounds to overturn the results of a representation election where the union was defeated by an employee vote of 91 to 54.
A Texas jury has awarded a company $7.8 million in compensatory damages and interest after finding Service Employees International Union Local 5 significantly damaged the company’s business through false claims of workplace violations. As a result, Local 5 has filed for federal bankruptcy protection.
James P. Hoffa has received a majority of valid votes cast in the election for General President of the Teamsters Union, according to ibtvote.org, the official website for the Office of the Election Supervisor for the International Brotherhood of Teamsters. The counting of ballots was completed on November 18, 2016, but the results will not be official until certified by the Election Supervisor, Richard W. Mark. If certified, this will be Hoffa’s fourth reelection win. The last election was held in 2011.
Back in June, we reported that a district court in Texas issued a nationwide preliminary injunction prohibiting the U.S. Department of Labor (DOL) from implementing the new “persuader” rules that were set to take effect July 1, 2016 marking a significant victory for employers. That same court on November 16, 2016 issued a nationwide permanent injunction blocking the DOL from implementing the rules — and granted summary judgment to the plaintiffs, who were various business organizations, states, and attorneys.
A federal court in Texas has issued a decision permanently blocking the U.S. Department of Labor (DOL) from implementing the final version of its "persuader rule." See National Federation of Independent Businesses v. Perez (N.D. Tex. November 16, 2016). On June 27, 2016, the court issued a temporary injunction prohibiting the DOL from implementing the rule. In its June 27 decision, the court held that a temporary injunction was appropriate because the parties challenging the rule were likely to succeed on their claim that the rule exceeds the DOL's authority under the LMRDA since it conflicts with the plain language of that statute. Additionally, in the June 27 decision the court held that the parties challenging the rule were likely to succeed on their claims it violates the Administrative Procedures Act, is arbitrary and capricious and an abuse of the DOL’s discretion, and that it violates employers’ Constitutional rights to free speech and association. In today’s decision finding the rule unlawful, the court adopted the reasoning set out in the June 27 decision. The court also converted its earlier temporary injunction into a permanent injunction with nationwide effect.
The election of Donald Trump as the 45th President of the United States carries with it the possibility of major changes in the field of labor law. The most significant changes likely will come at the National Labor Relations Board.
The federal appeals court in D.C. has issued a scathing rebuke of the National Labor Relations Board’s blanket nonacquiescence policy and ordered the Board to pay nearly $18,000.00 in attorney’s fees for what the court deemed bad faith litigation.
Six employees who stopped work and engaged in an in-store protest over their alleged mistreatment by a supervisor and to secure permanent jobs for temporary employees were unlawfully disciplined, the National Labor Relations Board has determined. Wal-Mart Stores, Inc., 364 NLRB No. 118 (Aug. 27, 2016). The Board termed the protest a “relatively small, brief, peaceful and confined work stoppage” that did not lose the protection of the National Labor Relations Act under its 10-factor test set forth in Quietflex Mfg. Co., 344 NLRB 1055 (2005).
In the midst of a heated presidential election cycle, employers are following recent decisions of the National Labor Relations Board closely. Before losing its three-member Democratic majority at the expiration of Board Member Kent Hirozawa’s term on August 27, 2016, the NLRB issued numerous decisions that are likely to have an adverse impact on both nonunion and unionized employers. Although the Democrats on the Board will continue to have a 2-1 majority, we expect the flow of significant decisions to stop until the Board is reconstituted following the presidential election. The direction of the Board thereafter, of course, will depend on the outcome of the election.
The Chicago regional office of the National Labor Relations Board (NLRB) has filed a complaint for unfair labor practices against Postmates, an on-demand delivery service that, according to its website, “connects customers with local couriers who can deliver anything from any store or restaurant in minutes.”
On September 22, 2016, the Associate General Counsel (“AGC”) for the National Labor Relations Board (“NLRB,” or the “Board”) issued an Advice Memorandum indicating that a number of policies in the Northwestern University Football Handbook were unlawful under the National Labor Relations Act (the “Act”). By subjecting the handbook to the Act, and referencing these scholarship football players as employees, the NLRB seems to be more concretely articulating its position on the status of student-athletes as employees. The Memo is the latest in a seemingly back and forth and abstract saga. If you remember, the Board punted the issue of student-athletes’ employment status back in August 2015 when it declined to exercise jurisdiction over the representation petition involving Northwestern University and College Athletes Players Association. You can see our previous coverage here and here. The Advice Memorandum, although not a Board decision confirming the status of scholarship student-athletes as employees, provides additional fuel for student-athletes at private institutions to reignite their unionization and pay-for-play efforts.
ESPN recently reported that the National Labor Relations Board (NLRB) had “ruled” that Northwestern University’s football players were actually “employees,” and that the University’s policing of its football players’ social media accounts and media appearances, as well as its ban on athletes’ talking about their health, were unlawful. While the story was sensational and received considerable media attention, this summary is not entirely accurate. The Labor Board has made no such “ruling,” and therefore private colleges and universities should treat such reports with a grain of salt.
For a variety of reasons, employers may prefer to treat those who provide services to them as independent contractors rather than employees. However, when employers exercise a sufficient level of control over the ostensible independent contractors (as outlined in various “factor” tests), they may be considered employees under the law. If that happens, employers can face significant legal consequences. For example, the newly reclassified employees could sue for unpaid minimum and overtime wages, and the employer could face fines, penalties, and other liability under state workers’ compensation statutes. The IRS and state and local taxing authorities might seek income and employment tax withholdings that were not, but should have been, made.
Open the Floodgates: NLRB Announces Misclassification of Independent Contractors Can, In Itself, Violate Section 8(a)(1)
On August 26, 2016, the National Labor Relations Board's Division of Advice publicly released an advice memorandum from December of 2015 in which it found a Section 8(a)(1) violation for an employer's misclassification of independent contractor status. Pacific 9 Transportation, Inc. (No. 21-CA-150875, Dec. 15, 2015).
NLRB Expands Jurisdiction in Church-Operated Schools, Distinguishing Between "Religious" and "Secular" Instruction in Faculty Bargaining Unit Cases
In two recent cases, the National Labor Relations Board distinguished between faculty members providing secular instruction and those providing religious instruction, in concluding that only those providing religious instruction were exempt from National Labor Relations Act coverage. In so doing, the Board applied its own test for religious exemption and expanded its jurisdiction beyond what the U.S. Supreme Court had deemed appropriate for a church-operated school.
In two separate cases decided on August 24, 2016, a divided National Labor Relations Board concluded that charter schools in Pennsylvania and New York are not political subdivisions within the meaning of Section 2(2) of the National Labor Relations Act and are subject to the Board’s jurisdiction. The practical effect of these decisions is that teachers at both schools may now unionize and enjoy the protections of the Act. The Board’s decision will certainly be revisited and challenged, however, as the Board explicitly stated that it was not announcing a bright line rule for all charter schools. Consequently, whether a particular charter school is subject to Board jurisdiction will be decided on a case-by-case basis going forward.
In the recent case of S. Freeman & Sons, Inc., the National Labor Relations Board confronted the question of “whether an employer can require an employee to keep confidential the terms of a settlement agreement in exchange for reinstatement.” 364 NLRB No. 82 (Aug. 25, 2016). The Board answered in the affirmative, reversing an administrative law judge’s finding that such an agreement violated Section 8(a)(1) of the National Labor Relations Act.
In United States Postal Service, 364 NLRB No. 116 (August 27, 2016), the National Labor Relations Board (NLRB) overturned long-standing precedent by ruling that an administrative law judge (ALJ) may accept a proposed unilateral settlement only if its terms provide for a “full remedy.” This decision will affect employers’ future efforts to remove or limit default language when agreeing to settle alleged violations of the National Labor Relations Act (NLRA).
The NLRB properly found a non-union employer unlawfully retaliated against striking employees and violated the National Labor Relations Act by transferring work from Illinois to Mexico, the federal appeals court in Chicago has ruled. Amglo Kemlite Labs., Inc. v. NLRB, 2016 U.S. App. LEXIS 15100 (7th Cir. Aug. 17, 2016). The Court enforced the Board’s order requiring the employer to return the transferred work to Illinois, among other things.
Taking its new joint employer standard to new heights, the NLRB found that Retro, a construction company, and Green JobWorks, a temporary staffing agency, are joint employers based on speculative future projects. Retro Environmental, Inc./Green JobWorks, LLC, 364 NLRB No. 70 (Aug. 16, 2016).
In an important 2–1 decision, a divided panel of the Ninth Circuit Court of Appeals recently concluded class action waivers in arbitration agreements violate the National Labor Relations Act (NLRA) and therefore are unenforceable. This ruling adds to the growing circuit split on this critical issue, increases the likelihood that the Supreme Court of the United States will resolve the open question, and presents key strategic decisions for employers to make in the interim.
Employers received their most bruising loss in the ongoing war involving class action waivers today, as the 9th Circuit Court of Appeals became the second federal circuit to strike them down as illegal. When the 7th Circuit issued an opinion earlier this year and became the first appeals court to make such a ruling, employers could view the decision as an anomaly and take comfort in the fact that all other courts reaching a decision had upheld class waivers. But today’s decision changes the national legal landscape (Morris v. Ernst & Young).
A bulletin on employment, labor, benefits and immigration law for employers.
A Regional Director of the National Labor Relations Board has ruled that a group of musicians were statutory employees under the National Labor Relations Act and, therefore, entitled to vote in an NLRB-conducted union representation election. In the Matter of Fiddlehead Theatre Company, Inc. and Boston Musicians Association et al., Case Number 01-RC-179597 (July 26, 2016). The decision comes on the heels of a holding by the U.S. Court of Appeals for the District of Columbia Circuit granting enforcement of an NLRB Order that musicians with the Lancaster Symphony Orchestra were employees, not independent contractors, and entitled to join the union. Lancaster Symphony Orchestra v. NLRB, No. 14-1247 (D.C. Cir. 2016).
When drafting a collective bargaining agreement, employers often insist on a management-rights clause. That clause reserves to the employer the right to take unilateral action, with respect to certain terms and conditions of employment without an obligation to bargain with the union about that action. In negotiating such clauses, employers try to find the right balance between specifically delineating the rights being retained, while keeping the language sufficiently broad to cover other (perhaps unanticipated) circumstances in which the employer might need to act unilaterally.
Overruling Precedent, Board Finds Violation May Be Established Without Specific Unfair Labor Practice Complaint Allegation
In a decision having far-reaching implications, a National Labor Relations Board panel consisting of Chairman Mark Gaston Pierce and Members Kent Hirozawa and Lauren McFerran, (Member Miscimarra dissented) has overruled almost 10 years of NLRB precedent, deciding that a violation of the National Labor Relations Act could be found based on an employer’s failure to inform the union that it did not possess information the union requested, despite the absence of a specific unfair labor practice complaint allegation to that effect.
Two recent cases, one from the National Labor Relations Board, and one from a federal court of appeals enforcing an NLRB decision, highlight the risk an employer runs when it seeks to prohibit its employees from wearing buttons at work.
The National Labor Relations Board (NLRB) fired off some fireworks of its own just before the Fourth of July weekend. Specifically, the NLRB announced a new procedure to implement Executive Order 13673 Fair Pay and Safe Workplaces (EO 13673), and facilitate the flow of NLRB case data into the databases used by contracting agencies.
The National Labor Relations Board (NLRB) released a memorandum to all NLRB regional directors advising them of a new reporting mechanism for unfair labor practices.
The National Labor Relations Board (NLRB) has directed its regional office personnel to begin reporting alleged labor law violations by government contractors named by regional directors in unfair labor practice complaints issued on or after July 1, 2016.
NLRB Overrules Precedent, Holds Bargaining Units Combining Jointly- and Solely-Employed Employees Okay Without Consent
The National Labor Relations Board has decided that bargaining units combining employees who are jointly employed by a user employer and supplier employer and solely employed by the user employer do not require the consent of either employer.
NLRB Regional Directors’ Formal Unfair Labor Practices Complaints to be Reported to Federal Database
The National Labor Relations Board has stated that it will report to a federal database all unfair labor practice complaints issued by its Regional Directors beginning July 1, 2016, in order to comply with “Fair Pay and Safe Workplaces” Executive Order 13673 (which has been called the “blacklisting” executive order).
The United States Circuit Court of Appeals for the District of Columbia has determined that the National Labor Relations Board lacks inherent power and the authority under Section 10(c) of the National Labor Relations Act to order an award of attorneys’ fees and litigation expenses to itself and a labor union.
A district court in Texas has issued a nationwide injunction prohibiting the U.S. Labor Department (DOL) from implementing the new “persuader” rules that were set to take effect July 1, marking a significant victory for employers.
The U.S. Department of Labor (DOL) recently announced significant revisions to the “persuader” rules set forth in the Labor Management Reporting & Disclosure Act of 1959 (LMRDA). The new rules impose increased disclosure requirements for employers and any “labor relations consultants” they hire to provide direct or indirect “persuader” advice regarding unionization and other labor-related issues. While the current legal status of the rules remains in flux, employers should consider their potential disclosure responsibilities and related options.
Last week, we reported that a federal district court in Minnesota determined that the new Department of Labor (DOL) persuader rule likely is unenforceable because it conflicts with the Labor Management Reporting and Disclosure Act (LMRDA). However, the court declined to enjoin the rule, and thus left open the possibility that the onerous reporting obligations under the new rule would kick in on July 1. Yesterday, a federal district court in Texas gave employers, labor consultants and labor attorneys the other half of the loaf when it not only found the new rule “defective to its core,” but also issued a nationwide injunction blocking the new rule in its entirety pending further legal proceedings.
The U.S. District Court for the Northern District of Texas, Lubbock Division, has issued a nationwide preliminary injunction against the U.S. Department of Labor’s “persuader” rule promulgated under the Labor-Management Reporting and Disclosure Act. National Federation of Independent Business, et al. v. Perez, Civil Action No. 5:16-cv-00066-C (N.D. Tex. June 27, 2016). Unless the ruling is overturned by the U.S. Court of Appeals for the Fifth Circuit or the U.S. Supreme Court, the new rule will not go into effect on July 1, 2016.
On June 27, 2016, the District Court for the Northern District of Texas issued a nationwide injunction enjoining the Department of Labor’s (DOL) Persuader Rule, 81 Fed. Reg. 15924.1 In reaching this conclusion, the court explained, “the [Persuader Rule] is defective to its core because it entirely eliminates the LMRDA’s advice exemption.”
On June 27, 2016, in National Federation of Independent Business et al. v. Perez, et al., the U.S. District Court for the Northern District of Texas (Lubbock Division) granted Plaintiffs’ Motion for a Preliminary Injunction, thereby enjoining the U.S. Department of Labor (DOL) from implementing and enforcing its revised persuader rule on a national basis. The Court found that Plaintiffs’ challenge to the new rule, which was set to become effective July 1, 2016, has a substantial likelihood of success on the merits and that Plaintiffs have shown that they would be irreparably harmed if the rule was not enjoined.
Federal District Court in Minnesota Finds Merit in Challenge to DOL Persuader Rule, But Denies Request to Enjoin Implementation
As we reported earlier, the new Department of Labor (DOL) “Persuader Rule” dramatically expands reporting obligations for consultants and attorneys who provide certain services to employers related to persuading employees on the subject of union organizing and collective bargaining. The new rule requires that both the employer and the consultant or attorney disclose agreements and payments made by the employer for “indirect” persuader services.
Minnesota District Court Denies Request to Enjoin DOL's Persuader Rule, But Signals Rule Could Be Overturned
In a decision that sheds light on the potential viability of the Department of Labor’s (“DOL”) Persuader Rule,1 a Minnesota district court on June 22, 2016, denied a request to enjoin the rule, which the DOL intends to begin enforcing on July 1, 2016.2 However, the court expressly stated its view that the Persuader Rule conflicts with the advice exception to the Labor-Management Reporting and Disclosure Act (“LMRDA”). Therefore, the court found that the plaintiffs attacking the Persuader Rule had established a “strong likelihood of success on their claim” because of this conflict.
The Associate General Counsel of the National Labor Relations Board has notified the NLRB’s Regional Directors, Officers-in-Charge and Resident Officers that they “should be cognizant of potential literacy issues when considering remedies” and consider requiring employers who have been found in violation of the Act to read aloud the Board’s “Notice To Employees” to assembled employees to overcome written language barriers in appropriate cases. Memorandum OM 16-21 (June 21, 2016).
On June 22, 2016, in Labnet, Inc. v. U.S. Department of Labor, the U.S. District Court for the District of Minnesota issued the first decision arising out of three separate lawsuits seeking preliminary injunctions blocking the DOL from implementing its revised "persuader activity" rule. The court found that the rule’s challengers had a substantial likelihood of success on the merits of their claim but declined to enter a preliminary injunction at such an early stage of litigation.
A federal court in Minnesota today sent employers a mixed message about the validity of the controversial new “persuader rule” – the impending regulation that would force attorneys and their clients to report in public records intimate details of their confidential attorney-client and financial relationships. As things stand, the rule will still be effective on July 1, but given the judge’s expressed doubts about the rule’s validity, employers can be all the more optimistic that it might soon be overturned.
Browning-Ferris Industries of California, Inc. took its first shot at convincing the U.S. Court of Appeals for the District of Columbia Circuit to reject the National Labor Relations Board’s new joint employer standard and vacate two decisions that obligate the company to bargain with the Teamsters as a joint employer of temporary employees assigned to its facility.
Executive Summary: Previously, we alerted our clients that the U.S. Department of Labor (DOL) issued the final version of its "persuader rule," which requires employers, third-party lawyers and other labor consultants to disclose to the DOL any arrangement to persuade employees directly or indirectly concerning the right to organize or bargain collectively. The rule applies to all types of union avoidance advice and other related activities, such as responses to an actual union organizing campaign, certain activities associated with collective bargaining, or simply day-to-day preventive training and policy making done with an "object to persuade."
In accordance with the U.S. Department of Labor’s recent public announcement regarding the implementation of its new “persuader activity” rule, all engagements entered into prior to July 1, 2016—including long-term or multi-year agreements for labor relations services to be performed after July 1—will not be subject to the reporting and disclosure requirements of the new rule. Services for "direct" persuader activities previously reportable under the old rule will continue to be reportable.
Department of Labor Provides Limited Opportunity to Obtain Advice Without Triggering the New "Persuader Rule"
The Department of Labor’s recently-issued Final Rule, 81 Fed. Reg. 15924 (the “Persuader Rule”) imposes upon employers and their advisors (including lawyers and consultants), for the first time, the obligation to file public reports with the DOL disclosing any advice that “indirectly persuades” employees regarding union organizing or collective bargaining.1 Prior to the Persuader Rule, such reports were required only when an advisor made direct contact with the employer’s employees, regardless of the persuasive purpose of the advice. The published rule provides that it will become effective on April 25, 2016, and apply only to “persuader” arrangements and agreements, as well as payments (including reimbursed expenses) made on or after July 1, 2016.
Many trade associations have little direct experience with union organizing and labor relations. When it comes to lobbying in Washington, D.C., however, trade associations know a thing or two about what it takes to be a successful persuader. In that sense at least, it is not surprising that the U.S. Department of Labor (DOL) singled trade associations out for special attention in the DOL’s final rule on reportable “persuader” activity. Released on March 23, 2016, the final rule dramatically expanded the scope of the activities that have to be reported under the Labor Management Reporting and Disclosure Act of 1959 (LMRDA). Although the final rule was targeted at a broad range of indirect persuader activities, it dedicated much attention to whether and when persuader reporting obligations can be triggered by seminars, newsletters, and other member services that trade associations provide to their employer members.
A bulletin on employment, labor, benefits and immigration law for employers.
The U.S. Court of Appeals for the D.C. Circuit recently rejected the National Labor Relations Board’s attempt to expand the remedies available under the National Labor Relations Act for unfair labor practices. Building on established precedent, the court in HTH Corporation v. National Labor Relations Board held that the Board lacked statutory authority to order an employer found to have committed unfair labor practices to pay the litigation expenses that either the General Counsel or the union incurred in the case.
Seventh Circuit Finds Class Action Waivers in Arbitration Agreements are Illegal and Unenforceable Under the NLRA
On May 26, 2016, the U.S. Court of Appeals for the Seventh Circuit issued its decision in Lewis v. Epic-Systems Corp., finding that the company's arbitration agreement, which prohibits employees from participating in “any class, collective or representative proceeding,” violated the employees’ right to engage in concerted activity under the National Labor Relations Act (NLRA).
Labor Department: Changes to Interpretation of Advice Exemption Apply Only to Agreements, Arrangements Entered Into After July 1
The United States Department of Labor published its final rule relating to “persuader” activity under the Labor-Management Reporting and Disclosure Act on March 24, 2016.
Although a religious college recently scored a victory in its battle against unionization, the legal decision and the proceedings that led to that decision could be somewhat troublesome for your educational institution. All colleges and universities should take heed of this development and determine whether you need to make changes now to avoid trouble later.
Public discourse on "healthcare" has focused primarily on health insurance and the significant changes made by the Affordable Care Act. But what about the providers of healthcare—the doctors, nurses, hospitals, pharmaceutical and medical device companies, home care agencies—that make up the industry itself? As the healthcare landscape shifts, so do the risks and challenges healthcare industry employers face.
The National Labor Relations Board’s General Counsel has assembled his latest wish-list of “hot-button” issues he hopes to present to the Board for decision when the right cases are presented to his office.
The U.S. Department of Labor has announced that its controversial new regulations on “persuader” activities will take effect on April 25, 2016. These regulations significantly alter the interpretation of the 57-year-old Labor Management Reporting and Disclosure Act (LMRDA) by redefining disclosure requirements and by narrowing the LMRDA’s exemption for “legitimate” attorney-client communications. Several organizations have already announced their intention to challenge the legality of this rule before it even takes effect.
In a deadlocked 4-4 decision, the U.S. Supreme Court could not reach a majority consensus in determining whether it is unconstitutional for states to force public sector employees to pay agency shop fees to their unions. For approximately 10 million public sector employees in states mandating agency shop fees, this means they must continue to pay a fair share fee to their unions in order to remain employed.
On March 29, 2016, the Supreme Court of the United States issued a per curiam opinion in a case on the validity of public-sector “agency shop” arrangements, which permit unions to charge a fee (in order to pay for select costs) to public employees who do not join a union. During oral argument, the Court had seemed likely to invalidate the fee and overrule the Court’s primary precedent. However, the recent death of Justice Scalia, having shifted the Court’s conservative-liberal balance, likely changed the outcome of this case. This morning, in Friedrichs v. California Teachers Association (14-915), an equally divided Court affirmed the decision of the Ninth Circuit Court of Appeals upholding the agency fee on the basis of decades-old Supreme Court precedent.
On March 24, the Department of Labor published its long-awaited revisions to its regulations regarding the “persuader” reporting requirement under Section 203 of the Labor Management Reporting and Disclosure Act (LMRDA). As we have previously reported, Section 203 of the LMRDA requires labor relations consultants and the employers who hire them to report their agreements and arrangements, including amounts paid, if the consultants are hired to “persuade” employees on the subject of union representation or collective bargaining rights.
On March 24, 2016, the U.S. Department of Labor (DOL) issued a final rule, 81 Fed. Reg. 15924, that will require employers to file public reports with the DOL when they use consultants (including lawyers) to provide labor relations advice and services that have the purpose of persuading employees regarding union organizing or collective bargaining. The consultants will also be required to file similar reports containing the details of advice and services provided and the amount of payment received for that advice and service. Previously, those reports were required only when a consultant providing advice had direct contact with employees. Now the reports are going to be required whenever the advice provided has a persuasive purpose, unless a court blocks the new rule. These changes will impose significant new reporting requirements on employers and their consultants.
On March 23, 2016, the U.S. Department of Labor (DOL) issued final regulations revising the “advice exemption” and requiring employers and consultants (including lawyers) to report labor relations advice and services under the Labor-Management Reporting and Disclosure Act's "persuader activity" regulations. The effective date of the new regulations is April 25, 2016. The rule will be applicable to arrangements and agreements as well as payments (including reimbursed expenses) made on or after July 1, 2016.
Executive Summary: On March 23, 2016, the U.S. Department of Labor (DOL) issued the final version of its "persuader rule," which requires employers, third-party lawyers and other labor consultants to disclose to the DOL any arrangement to persuade employees directly or indirectly concerning the right to organize or bargain collectively. These reports must be filed electronically and, once filed, become publicly available records.
DOL’s Rule Redefining LMRDA ‘Advice Exception’ and Expanding Types of Activities Considered Persuasive, Reportable is Finalized – Effective Late April 2016
The United States Department of Labor has announced that it will publish its final rule relating to “persuader” activity under the Labor-Management Reporting and Disclosure Act (LMRDA) on March 24, 2016, almost five years after first proposing it. The rule (which was opposed by the American Bar Association, Association of Corporate Counsel, the Attorneys General of many states, most employers and many key trade associations, among others) is briefly summarized below.
The federal government has finalized a significant new regulation that seeks to interfere with businesses seeking legal counsel to help in opposing or dealing with unions. The U.S. Department of Labor’s (USDOL) new “persuader” rule would force attorneys and their clients to report in public records their confidential attorney-client and financial relationships, providing an unfair boost to unions in their organizing efforts.
Department of Labor Issues New “Persuader” Regulations Expanding Employers’ Reporting Obligations Under LMRDA
On March 24, 2016, the U.S. Department of Labor (DOL) will publish new regulations expanding the obligations of employers and lawyers to report certain information to the DOL under the Labor Management Reporting and Disclosure Act of 1959 (LMRDA).
A bulletin on employment, labor, benefits and immigration law for employers.
There seems to be no end in sight to the standoff between the National Labor Relations Board and at least a majority of the federal courts over the legality of arbitration agreements that require employees to waive the right to lead or participate in class or collective actions.
Numerous studies confirm that "gig" workers – freelancers, temporaries, and the like – make up a fast-growing segment of the U.S. workforce. Now, the modern gig economy is coming face to face with traditional industrial relations. A New York local chapter of the International Brotherhood of Electrical Workers has filed a representation petition with Region 29 of the National Labor Relations Board (NLRB) seeking to organize 600 Uber drivers who transport passengers to and from LaGuardia Airport.
The United States Supreme Court appears headed toward outlawing “agency-shop” or “fair share” provisions in public sector collective bargaining agreements, requiring non-members to pay union fees, sometimes reluctantly, in lieu of dues. Frederichs v. Cal. Teachers Ass’n, No. 14-915, argued Jan. 11, 2016.
Unions have been largely unsuccessful in their efforts to organize employees and negotiate first contracts within the system created by the National Labor Relations Act (NLRA). Only about 7 percent of the private-sector labor force is unionized. Consequently, unions have adopted new organizing strategies. Some states and municipalities in which unions have substantial political clout have enacted statutes and ordinances that are designed to give unions a governmental hand up in organizing employees and successfully negotiating start-up collective bargaining agreements. This type of legislation often requires employers to agree to relinquish their statutory rights and curb their exercise of economic power (as permitted by the NLRA) in order to enjoy certain benefits that are conferred by government.
In 2015, the National Labor Relations Board has given us the “quickie” election rule, Browning-Ferris Industries of California (greatly expanding instances where joint employer relationship exists), Northwestern University (declining to determine whether college football players who receive grant-in-aid scholarships are employees under the National Labor Relations Act), Banner Estrella Medical Center (finding employer’s blanket request that employees keep an investigation confidential violated employees’ right to engage in protected concerted activity), Piedmont Gardens (adopting a balancing test to determine whether employee witness statements are confidential), and Lincoln Lutheran of Racine (ruling an employer’s obligation to deduct union dues from employees’ pay continues after expiration of the collective bargaining agreement), among other developments.
The 2015 amendments to the Federal Rules of Civil Procedure went into effect on December 1, 2015. They apply not only to cases filed on or after this date but pending proceedings “insofar as just and practicable.” The Amendments focused largely on e-discovery and how to tame discovery abuses in light of the electronic information explosion.
Pointing to the NLRB’s 15-month delay in filing its petition as undermining its claim of irreparable injury, a federal district court in Illinois has denied the National Labor Relations Board’s application for injunctive relief against an employer under Section 10(j) of the National Labor Relations Act. Ohr v. Arlington Metals Corporation, 2015 U.S. Dist. LEXIS 160492 (N.D. Ill. Dec. 1, 2015). Section 10(j) of the Act permits the NLRB to seek a federal court injunction forbidding unions and employers from committing unfair labor practices during the pendency of related unfair labor practice litigation before the agency.
Congress will grapple with bills to overturn the federal labor board’s decision on joint employers and to make work schedules more predictable for workers in 2016.
A settlement of two Fair Labor Standards Act claims (an individual lawsuit and a class action) by employees of a Bronx restaurant and the employer’s Racketeer Influenced and Corruption Organizations Act lawsuit against a union seeking to represent the employer’s employees has fallen through as a result of National Labor Relations Board objections to two provisions in the settlement agreement – the non-disparagement and non-disclosure provisions.
Lawmakers have introduced identical legislation in both chambers of Congress to overturn a landmark decision by the National Labor Relations Board intended to broaden joint employer liability. By including employers who may only indirectly affect employees’ terms and conditions of employment, or have the right to affect such terms and conditions, the controversial Board decision has swept many more businesses under the “joint employer” umbrella and increased labor union bargaining power.
Three policies in an employer’s handbook violated Section 8(a)(1) of the National Labor Relations Act, the U.S. Court of Appeals for the District of Columbia Circuit has held, agreeing with the National Labor Relations Board. The Court disagreed, however, that two other policies found illegal by the NLRB violated the Act. Hyundai Shipping Agency, Inc. v. NLRB, No. 11-1351 (D.C. Cir. Nov. 6, 2015).
A bulletin on employment, labor, benefits and immigration law for employers.
The mountain that is Specialty Healthcare: Volkswagen case typifies employers’ steep climb in NLRB unit determination cases
In its 2011 Specialty Healthcare decision, the National Labor Relations Board revised the test it applies in determining whether a union’s petitioned-for unit is appropriate. In Specialty Healthcare, the NLRB explained that where a union’s petitioned-for unit is readily identifiable as a group and shares a community of interest (common terms and conditions of employment), an employer who seeks a larger unit must demonstrate an “overwhelming” community of interest between the included and excluded employees. As we have reported in the April 2013 FR Alert and July 2014 FR Alert, employers have struggled to meet the “overwhelming” community of interest standard.
In Green JobWorks LLC/ACECO, LLC, No. 05-RC-154596 (Oct. 21, 2015), discussed here, a case believed to be the first post-Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), to apply the new joint employer “test” articulated there, a National Labor Relations Board Regional Director found that a subcontractor and temporary staffing agency were not joint employers. Now, the petitioning union, disappointed by the ruling, has requested NLRB review of that decision.
An NLRB case involving the construction industry provides insight into how the agency’s new joint employer standard may be applied.
The National Labor Relations Board's recent decision in Lily Transportation Corp., 363 NLRB No. 15, highlights the potential impact of a finding that a follow-on service provider is a "successor" to a prior provider.
We have written previously about the National Labor Relation Board’s 3-2 decision in Browning-Ferris of California, Inc., 362 NLRB No. 186 (August 27, 2015), increasing the likelihood the Board may find two employers to be “joint employers,” and thereby share many collective bargaining responsibilities as well as liability for each other’s violations of the National Labor Relations Act. See “Labor Board Sets New Standard for Determining Joint Employer Status” (August 25, 2015).
A week after a House subcommittee held a hearing on the National Labor Relations Board's new joint employer standard, it was the Senate's turn to address the aftermath of the Board's Browning-Ferris decision. In Browning-Ferris, the Board created a two-part test for determining joint employment for liability purposes under the National Labor Relations Act. Under this new standard, demonstrating an entity's "indirect control" or even its "unexercised potential to control" another entity's employees could establish joint employment.
Members of the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing on a bill that would undo the new joint employer standard the National Labor Relations Board recently established. As previously discussed, the Protecting Local Business Opportunity Act (H.R. 3459, S. 2015) would amend the National Labor Relations Act in light of the Board's contentious decision in Browning-Ferris Industries. In this decision, the Board determined that if an entity affects the means and manner—either directly or indirectly—of the work terms and conditions of another entity's employees, it will be considered a joint employer with the other entity, even if that power was unexercised.
Many employers believe they have the absolute right to prohibit their workers from disclosing “confidential” information to coworkers and third parties. They are dead wrong. The National Labor Relations Board (NLRB) has consistently restricted employer rights in this area, and some recent decisions and guidelines from the current Board have accelerated the erosion of these employer rights.
We have written previously about the National Labor Relation Board’s 3-2 decision in Browning-Ferris of California, Inc., 362 NLRB No. 186 (August 27, 2015), increasing the likelihood the Board may find two employers to be “joint employers,” and thereby share many collective bargaining responsibilities as well as liability for each other’s violations of the National Labor Relations Act. See “Labor Board Sets New Standard for Determining Joint Employer Status” (August 25, 2015).
Over the past year, employers have bemoaned the fact that the National Labor Relations Board (NLRB) has decided: that two nursing home employees should be reinstated despite performance deficiencies that included patient safety issues; that an employee’s online and obscenity-laced rant was “protected activity” under the National Labor Relations Act (NLRA); and that an employee’s discussion of a help-wanted ad with a co-worker was “concerted activity” under the NLRA.
This is part Six of the continuing series on two-filter document culling. This is very important to successful, economical document review. Please read parts one, two, three, four and five before this one.
Democratic lawmakers introduced legislation on September 16, 2015 that would greatly expand the remedial scope of the National Labor Relations Act. Crafted with input from labor leaders, the Workplace Action for a Growing Economy (WAGE) Act would, among other things, provide employees with a private right to sue their employers in federal court for unfair labor practices, allow corporate officers to be held personally liable for NLRA violations, enhance the National Labor Relations Board's authority to seek redress for complainants, and authorize the award of civil fines against employers. While the measure has virtually no chance of being enacted this term, it serves as a "message" bill that will likely be referenced in the lead-up to the 2016 elections.
With the NFL season just beginning, and Tom Brady leading the New England Patriots to victory over the Steelers, we decided to provide you with a bit of football-inspired labor law. On September 3, 2015, Judge Robert Berman of the U.S. District Court of New York issued his decision in the now infamous “Deflategate” case. By now, the decision has been reported, analyzed, and scrutinized to death in the sports pages and on ESPN, but no media outlets have looked at the important labor law implications of the Judge’s decision. As explained below, the opinion is quite unique from a labor law perspective. Also, the Judge’s opinion has several lessons for employers outside of the high-profile and flashy world of NFL football.
U.S. Lawmakers Introduce Legislation to Restore Definition of 'Joint Employer' under National Labor Relations Act
Senator Lamar Alexander (R., TN.) chairman of the Senate Committee on Health, Education, Labor, and Pensions and Representative John Kline (R., Minn.), chairman of the House Committee on Education and the Workforce, introduced legislation to curtail the National Labor Relations Board’s expansive new standard for determining “joint employer” status set forth Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015).
“Join the union, and you’ll make more money!”
After returning from the August congressional recess, lawmakers were quick to introduce a bill that would negate the National Labor Relations Board's recent decision in Browning-Ferris. In this controversial decision, the Board created a new "indirect control" standard for assessing joint employment under the National Labor Relations Act. In the 3-2 decision, the Board determined that if an entity affects the means and manner—either directly or indirectly—of the work terms and conditions of another entity's employees, it will be considered a joint employer with the other entity. This is a radical departure from the prior standard, in which joint employment was found only if the control exercised by the putative joint employer was actual, direct and substantial.
The National Labor Relations Board (“Board”) recently issued its decision in The Boeing Company case. The Board found that Boeing’s confidentiality policy regarding internal investigations violated the National Labor Relations Act (“Act”) because it chilled employees’ exercise of their Section 7 rights.
The U.S. Department of Labor’s (DOL) permanent labor certification (PERM) program requires employers to conduct specific recruiting activities to test the labor market before filing an application. The regulation at 20 CFR § 656.17(f) sets forth the advertising requirements, which also apply to the Notice of Filing (NOF).
In our June 2015 blog post, “NLRB Moves to Assert Jurisdiction Over Religious Educational Institutions,” we reported that Regional Directors of the National Labor Relations Board (NLRB) were beginning to exercise jurisdiction over religiously-affiliated colleges and universities—allowing unions to organize those institutions’ employees—following the NLRB’s decision last year in Pacific Lutheran University.
Concluding that its assertion of jurisdiction “would not serve to promote stability in labor relations,” the National Labor Relations Board has declined to exercise authority over the College Athletes Players Association’s (CAPA’s) petition to represent scholarship football players at Northwestern University. Northwestern University, 362 NLRB No. 167 (Aug. 17, 2015). Without deciding if the players meet the statutory definition of “employee” under the National Labor Relations Act, the unanimous Board stated “it would not effectuate the policies of the Act to assert jurisdiction” here. However, the Board expressly left open the possibility it would assert jurisdiction “in another case involving grant-in-aid scholarship players (or other types of scholarship athletes).”
A bulletin on employment, labor, benefits and immigration law for employers.
Can I Get A Witness (Or At Least A Witness Statement)? NLRB Rules Witness Statements Are Now Fair Game
For over 35 years, the National Labor Relations Board (NLRB) held that witness statements obtained by unionized employers during pre-arbitration investigations were exempt from disclosure to the union. However, on June 26, 2015, the NLRB reversed its own long-standing precedent and ruled that such witness statements must be provided to a union bargaining agent before an arbitration hearing. Employers no longer enjoy this blanket exemption and therefore should adjust their practices accordingly.
Overturning a 37-year-old precedent, the National Labor Relations Board has decided that witness statements obtained by an employer during an investigation of employee misconduct and requested by a union representative no longer will enjoy special protection from disclosure. American Baptist Homes of the West d/b/a Piedmont Gardens, 362 NLRB No. 139 (June 26, 2015).
“Common Sense” Shows The Value of a Well-Written Dissent: Southern New England Telephone Company v. NLRB
It must be frustrating to be in the minority of an administrative adjudicatory body and to constantly be forced to write dissenting opinions, as was the case for former National Labor Relations Board (NLRB) member Brian E. Hayes (now an Ogletree Deakins shareholder). But if anyone doubted the value of a well-written dissent, they need only look to the July 10, 2015 decision of the District of Columbia Circuit Court of Appeals in Southern New England Telephone Company v. National Labor Relations Board, in which the court reversed the Board majority and adopted Hayes’ dissenting opinion in the NLRB’s 2011 decision, The Southern New England Telephone Company d/b/a AT&T Connecticut, 356 NLRB No.118 (2011).
The U.S. Court of Appeals for the District of Columbia has ruled that AT&T had a right to forbid employees, when interacting with the public, from wearing t-shirts that the company reasonably believed could harm its relationship with customers or its public image. In Southern New England Telephone Company v. National Labor Relations Board, Nos. 11-1099 and 11-1143 (D.C. Cir. July 10, 2015), the court vacated and refused to enforce a decision by the National Labor Relations Board (“NLRB”) that found the company’s actions unlawful.
Since 1978, the National Labor Relations Board (NLRB) has treated witness statements as exempt from an employer’s general duty to furnish information to unions under Section 8(a)(5) of the National Labor Relations Act (NLRA). The NLRB first articulated this rule in Anheuser-Busch, Inc., 237 NLRB 982, 984–985 (1978), where the Board held that the general duty to furnish information “does not encompass the duty to furnish witness statements themselves.” Although the Board generally required an employer to provide summaries of the content of witness statements, under Anheuser-Busch, an employer could lawfully refuse to provide the witness statements themselves. A key policy rationale for this categorical rule was to protect the integrity of employer investigations and to protect witnesses from reprisal and intimidation, particularly employees who provided incriminating information against fellow bargaining unit members.
The extent of the National Labor Relations Act's application to tribal-owned and operated enterprises on reservations is an open question in many circuits. Recently, two Sixth Circuit decisions resolved the question in favor of the Act's application to tribal casinos. On June 9, 2015, in NLRB v. Little River Band of Ottawa Indians Tribal Government, a Sixth Circuit panel concluded that the inherent sovereignty possessed by the Little River Band of Ottawa Indians did not preclude the NLRA's application to a tribe-owned casino on tribal trust land. Less than a month later, in Soaring Eagle Casino and Resort v. NLRB (July 1, 2015), another Sixth Circuit panel held that the NLRA applied to a casino owned and operated by the tribe on trust lands within the reservation, notwithstanding the tribe's inherent sovereignty and a treaty-based right to exclude. These decisions are among the latest in a recent, rapid shift in the law towards applying the NLRA to businesses on tribal lands.
Most school administrators would be shocked to learn that the National Labor Relations Board (NLRB) could, in some circumstances, find that their school engaged in an unfair labor practice for disciplining or terminating an employee who criticizes management. A recent New York case provides a perfect example.
Do performance deficiencies preclude reinstatement after an unlawful firing? Not always, says the NLRB.
A recent decision of a three-member panel of the National Labor Relations Board (NLRB) is sure to start conversations regarding the parameters for remedial reinstatement of individuals with observed performance deficiencies.
In an era when the National Labor Relations Board seldom finds actions by employers to be reasonable, that agency recently issued two decisions finding that a unilateral change in employee benefits provided under a collective bargaining agreement was consistent with the agreement and therefore lawful. American Electric Power, 362 NLRB No. 92 (2015); Bay Area Healthcare Group dba Corpus Christie Medical Center, 362 NLRB No. 94 (2015).
A recent move by the National Labor Relations Board threatens the right-to-work laws in 25 states, witnesses testified during a hearing conducted by the House Committee on Education and the Workforce. At the June 3 hearing, lawmakers and panelists debated the merits of right-to-work laws, and whether unions should be permitted to force nonmembers to pay grievance fees.
Police Accountability and Police Union Buy-in: Thinking Through the Labor Relations Implications of Body Cams.
Todd Lyon and Jose Klein’s article “Police Accountability and Police Union Buy-in: Thinking Through the Labor Relations Implications of Body Cams.” NPELRA’s Newsletter on June 2, 2015.
The National Labor Relations Board and various union-backed organizations are ratcheting up efforts aimed at changing the landscape of who qualifies as a joint employer. Right now, these aggressive efforts are most pronounced in the franchise industry where the NLRB and other organizations continue to push an agenda of making franchisors – fast food chains for example – joint employers with their franchisees. As part of this ongoing campaign, the NLRB’s general counsel issued a ruling finding that a major retailer should be treated as a joint employer with franchisees.
A three-member panel of the National Labor Relations Board (NLRB) recently found that employee handbook provisions drafted in 2010 supported an unfair labor practice charge, even though those provisions were replaced by acceptable language in 2013.
Executive Summary: A federal court in the District of Columbia has upheld the validity of the Department of Labor's (DOL) rule requiring covered federal contractors to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). In National Ass'n of Manufacturers v. Perez (D.D.C. May 7, 2015), the court held that the rule does not violate employers' First Amendment rights, was properly adopted, and is not preempted by the NLRA.
Employers Between a Rock and a Hard Place: Another Puzzling "Status Quo" Case Decided On Other Grounds
The National Labor Relations Board (Board) recently decided a case previously remanded back to it by the District of Columbia Circuit Court of Appeals. The Board’s decision in Arc Bridges, Inc., 362 NLRB No. 56, March 31, 2015, circumvents a now common problem for employers by relying on individual facts of union animus, but the underlying problem presented in Arc Bridges still lingers.
Executive Summary: On April 10, 2015, Emory University School of Law and the Emory Law Journal presented a symposium, sponsored by FordHarrison, focused on the National Labor Relations Board (NLRB) and its recent decisions and actions. The event was held to coincide with the 80th anniversary of the passage of the National Labor Relations Act (NLRA) in 1935.
Michael Carrouth and Reyburn Lominack’s article “The NLRB’s New Election Rules Do Not Provide a Level Playing Field” was featured in the March/April SC Chamber’s Newsletter.
Over the past several years, the National Labor Relations Board (NLRB) has aggressively redefined the landscape for employer rules contained in employee handbooks, employee policies, and/or employment agreements. Even though these decisions purportedly follow the standards established in the Board’s 2004 decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the application of those standards, first by former General Counsel Lafe Solomon and now under General Counsel Richard Griffin, have led to long-established, commonplace employer rules being found unlawful under the National Labor Relations Act (NLRA). In apparent recognition of this recent sea change by the Board, General Counsel Griffin recently issued a memorandum “to offer guidance on [his] views of this evolving area of labor law.”
Over the past several years, employers have struggled to reconcile handbook and other personnel policies with decisions of the National Labor Relations Board. Drawing lines more nice than obvious, the NLRB has invalidated many common handbook policies under the theory they interfere with employee rights to engage in protected, concerted activity under Section 7 of the National Labor Relations Act. Last week, in an effort to inject clarity into a muddled area of law, NLRB General Counsel Richard Griffin issued a memorandum (GC Memo) comparing and contrasting lawful and unlawful employer policies and offering insight into the NLRB’s decision-making rationale.
NLRB General Counsel Issues Aggressive Immigration Initiative—Employers Now Face Extraordinary Penalties
On February 27, 2015, National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr. injected the NLRB into the national debate regarding border security, the rights of undocumented workers and their families, and the appropriate use of taxpayer funds. In cases in which employee immigration status issues are raised during Board proceedings, General Counsel (GC) Memorandum 15-03 admonishes all NLRB regional offices to consider seeking extraordinary remedies against employers and exploring with U.S. immigration agencies whether special visas or discretionary relief can be provided for undocumented workers, their families, and witnesses to shield them from removal (deportation) from the United States.
Labor unions in the U.S. represent barely one of every fourteen employees in the private sector. This abysmal number is representative of a steady, decades-long, downward trend in union membership. But as industry has grown by focusing on global initiatives, unions too have turned to their international brethren to breathe life back into the U.S. labor movement. In Organized Labor's International Strategy To Solve Its Domestic Crisis, FordHarrison partners Herbert Gerson, and Brian Kurtz, examine how two unions – the UAW and SEIU – have leaned on European alliances for growth, and explain why international corporations with U.S. operations should pay attention. The article was published by the Association of Corporate Counsel (ACC) as a Practice Area Briefing and is available on the Indepth Analysis page of FordHarrison's Knowledge Center.
For the past quarter century, because of conflicting legal authority, employers who offer health care to their retirees, particularly in a unionized setting, have struggled to determine whether they can alter those benefits. In most of the nation, federal courts permit changes to retiree medical benefits upon the termination of the collective bargaining agreements that provide the benefits, absent specific language that mandates vesting of such benefits. In the territory covered by the United States Court of Appeals for the Sixth Circuit (covering Ohio, Michigan, Kentucky, and Tennessee), a presumption of vesting is afforded to retirees, making it much more difficult, if not impossible, for employers to alter retiree medical benefits. This state of affairs has led to wide-ranging results. For example, employers that operate in multiple states (and their unions) have engaged in forum shopping in their favored jurisdiction. The high cost of health care has forced employers with no other alternative to attempt to discharge retiree medical liabilities in bankruptcy, which in turn led to amendments to the Bankruptcy Code. Other employers have settled their liability by transferring significant sums to independent trusts, such as VEBAs, which then have the responsibility for providing retiree medical benefits.
As we have discussed over the past few weeks, the NLRB was busy as 2014 drew to a close. On December 11, 2014, the Board overruled its Register Guard decision in Purple Communications, establishing a new standard that requires employers to accommodate employees’ use of e-mail for protected concerted activity, subject only to “uniform and consistently enforced controls” that are “necessary to maintain production and discipline.” The very next day, the Board adopted a final version of its quickie election rules, which are scheduled to take effect on April 14, 2015, pending any legal challenges. These are not the only recent actions of interest to employers and labor practitioners. Amid post-election budget wrangling and the Board’s busy month, the Senate approved the nomination of a new Democratic appointee to the Board, and the Department of Labor (DOL) provided more guidance on persuader rules and union annual reports, potentially putting a final point on two long-running contentious issues.
The foundation of the relationship between an employer and a union is the collective bargaining agreement negotiated by the parties. Central to those agreements are dispute resolution processes that allow for expedited procedures to resolve conflicts. Disputes between employers and unions are typically resolved through a grievance process that culminates in final and binding arbitration. These underpinnings of the labor-management relationship allow for industrial peace, stability, and finality. Historically, the National Labor Relations Board (NLRB) has granted deference to these mutually agreed-upon dispute resolution processes and their results.
Let it Snow: NLRB Continues Flurry of December Activity by Adopting New Arbitration Deferral Standards
With the holidays quickly approaching, the National Labor Relations Board’s union-friendly majority continues to churn out decisions that will significantly impact union and non-union employers in 2015 and beyond. Earlier this week, the Board overturned another longstanding precedent when it issued a decision adopting a new, more demanding standard before the Board will defer to an arbitrator’s decision on a contractual issue that also implicates Section 8(a)(1) and (3) unfair labor practices. In doing so, the Board abandoned a standard that it had used for 30 years.
Last week’s NLRB Purple Communications decision about employee emails combine with the announcement by the National Labor Relations Board of the so-called “quickie elections” process, is going to stir up employers.
Steve Bernstein’s article "Protect Yourself from a Protest" was featured on NACS Online on December 10, 2014.
Retail's Best Kept Secret against Non-Employee (Union or Otherwise) Protestors? Property Rights and an Evenly Enforced Policy Restricting Time, Place and Manner
Executive Summary: As the holiday season approaches, non-employee protestors, labor organizers or otherwise, often target retailers in an effort to maximize the reach of their message due to the high foot traffic experienced at retail locations. Repeated and consistent efforts by these non-employee protestors can be a source of concern for retailers and negatively impact both their business and goodwill in the community. Retailers, however, are not without options in these scenarios and can protect themselves with an effective and evenly-applied solicitation and distribution policy restricting the time, place and manner of non-employee activity on their property.
Whether an individual is classified as an independent contractor or an employee has significant legal implications, because most federal and state employment laws do not apply to independent contractors. Independent contractors often afford companies greater flexibility with their workforce, administrative benefits, and cost savings. However, for a variety of government agencies, misclassification of an employee as an independent contractor can result in billions in lost revenue by virtue of lost opportunities for payroll withholdings, among other things. For example, several years ago, the Internal Revenue Service initiated a project of random audits to identify employees misclassified as independent contractors because of the significant annual costs to the federal government.
In an October 29 report, POLITICO Pro’s Brian Mahoney offered a behind the scenes insight into the thinking of National Labor Relations Board (NLRB) General Counsel Richard f. Griffin, Jr. on his initiatives to alter the Board’s “joint employer” standard. Quoting from Griffin’s remarks to a West Virginia University College of Law audience in Morgantown, West Virginia, the article disclosed Griffin’s concerns with the legality of his position.
In 2012, Indiana enacted the “Indiana Right to Work Act”, prohibiting unions from requiring an individual, as a condition of employment, to 1) become or remain a member of a labor organization; 2) pay dues, fees, assessments, or other charges of any kind or amount to a labor organization; or 3) pay to a charity or third party an amount equivalent to or a pro-rate part of dues, fees, assessments or other charges required of members of a labor organization. Indiana thus became one of 24 states with some version of a right to work law on the books.
Over the past few months, the National Labor Relations Board (NLRB) has taken a series of steps to dramatically broaden the long-standing standard of when a wholly-independent company (e.g., a primary contractor or franchisor) will be deemed a joint employer of the employees of another company (e.g., a subcontractor or franchisee). Although the NLRB has not yet changed the law, it is already acting as if the law had changed by authorizing complaints to be issued against an international franchisor, McDonalds, USA, LLC. Significantly, that company played no role in hiring, firing, disciplining, paying, or supervising its franchisees’ employees. The changes these NLRB actions signal will significantly affect a fundamental principle of our economy and our legal system: that wholly separate corporations are independent entities. Indeed, these changes will alter the landscape in which U.S. companies conduct business.
Actions May Speak Louder than Words: Can Franchise Agreements Protect Franchisors from Liability as Joint Employers?
The National Labor Relations Board (NLRB) has created a buzz within the franchise community by announcing that McDonald's may be responsible as a "joint employer" for alleged unfair labor practices of some of its franchisees. Employees of franchisees have filed more than 180 unfair labor practice charges against both the franchisees and McDonald’s. The NLRB's general counsel has said that 43 of these cases have merit. He has authorized the filing of complaints naming McDonald’s as a respondent in those cases unless settlements are reached.
Under the Same Golden Arches: NLRB General Counsel Authorizes Complaints Alleging McDonald’s Corporation Is Joint Employer with Franchises
Last week, the NLRB General Counsel’s Office authorized 43 complaints of unfair labor practices brought by McDonald’s workers, naming both the McDonald’s Corporation and its franchisees as joint employers which would hold them jointly responsible for the unlawful actions. In other words, for the first time in decades, corporate fast-food franchisors may be held liable for the actions of their franchises. This is a significant departure from NLRB precedent, and its impact could go far beyond the world of burgers and fries.
NLRB Moves Toward New Standard to Hold Franchisors Are Joint Employers of Their Franchisees' Employees
Executive Summary: Over the last two years fast-food workers have engaged in walkouts and other activities protesting their wages and seeking an increase to $15/hr. Numerous unfair labor practice charges have been filed with the National Labor Relations Board (NLRB) against restaurant franchisors and franchisees accusing them of illegally firing, threatening or otherwise retaliating against workers for activities protected by the National Labor Relations Act (NLRA).
Several years ago in a case entitled Specialty Healthcare, the National Labor Relations Board ("NLRB") changed a decades-long standard with regard to how a union can organize employees. Prior to Specialty Healthcare, unions typically had to organize "wall-to-wall," meaning that if they wanted to go after a particular facility, they had to organize all production and maintenance employees at the facility. Naturally, the larger the unit, the more difficult it was for the union to organize.
Executive Summary: In a decision that could have a significant financial impact on many labor unions, the U.S. Supreme Court has held that personal care providers, who are considered state employees only for limited collective bargaining purposes under Illinois law, cannot be required to pay agency fees. In Harris v. Quinn (June 30, 2014), the Court refused to apply its 1977 decision in Abood v. Detroit Board of Education, which upheld the imposition of agency fees on non-union state employees, to these individuals because they are not "full-fledged" public employees. The Court further held that the agency fee provision violates the personal care providers' First Amendment rights, and that they cannot be compelled "to subsidize speech on matters of public concern by a union that they do not wish to join or support."
A Texas federal court has ordered the U.S. Labor Department to pay more than $560,000 in attorney's fees, paralegal fees, and travel expenses growing out of litigation under the federal Fair Labor Standards Act.
An article by Joseph Ambash entitled “Is the Northwestern Decision a Wake-Up Call for Higher Ed Institutions?” was published in The New England Journal of Higher Education.
NLRB Invites Briefs on Whether to Overturn Register Guard Decision Governing Employee Use of Employers’ Electronic Communication Systems
On April 30, 2014, the NLRB invited parties to file briefs addressing whether it should overturn the current Register Guard standard governing employees’ use of employer-provided email accounts and other electronic communication systems. The NLRB will consider the briefs in reviewing an Administrative Law Judge’s recent decision in Purple Communications, Inc., in which the ALJ relied on Register Guard in dismissing a union’s claim that the employer violated the National Labor Relations Act by prohibiting use of its electronic equipment and email systems for activity unrelated to the employer’s business.
Imagine if you will, that a company-sponsored website allows employees to post comments. During the course of a union strike, an employee who chooses to cross the picket line posts a comment threatening to kill union members who try to stop him. The company does not disavow the post. Would the National Labor Relations Board (NLRB) find that the company is liable?
Legal Alert: Employer Strategies in a Changing Slow-Growth Economy – Dealing with Organized Labor: The Boeing Blueprint
How are U.S. employers approaching the economic "recovery" from the recession and what strategies are being employed by them, particularly in relation to unionized workforces?
Last week, in Copper River of Boiling Springs, LLC, a three-member panel of the National Labor Relations Board upheld a South Carolina restaurant’s negative attitude rule by a 2-1 vote. The employee handbook provision prohibited “[i]nsubordination to a manager or lack of respect and cooperation with fellow employees or guests,” and specified that “[t]his includes displaying a negative attitude that is disruptive to other staff or has a negative impact on guests.” The restaurant relied upon the rule in discharging an employee after management received reports that the employee used profanity to disparage the restaurant in conversations with its customers.
Court Throws Out Union’s Railway Labor Act Challenge to Employer’s Withdrawal of Voluntary Recognition and Rejection of CBA
On February 18, 2014, in Herrera v. Command Security Corp. d/b/a Aviation Safeguards, 2:12-cv-10968-SVW-RZx, the U.S. District Court for the Central District of California ruled that an employer’s withdrawal of voluntary recognition of a union and rejection of its collective bargaining agreement (CBA) could not be challenged in court as a violation of the “status quo” provisions of the Railway Labor Act (RLA).
Executive Summary: The National Labor Relations Board (NLRB) has announced that it will not seek Supreme Court review of the decisions of two federal appeals courts that invalidated the Board's Notice Posting Rule. The Rule would have required all private sector employers covered by the National Labor Relations Act (NLRA) to post a notice in the workplace explaining employees' rights under the NLRA. For a discussion of the decisions invalidating the Rule, please see our Legal Alerts from June 17, 2013, and May 8, 2013.
In the end, the notice posting rule proposed by the National Labor Relations Board (NLRB) died not with a bang, but with a whimper. The NLRB’s proposed rule was earlier struck down by both the Fourth Circuit Court of Appeals and the D.C. Circuit Court of Appeals. After twice requesting extensions of time within which to file petitions for a writ of certiorari with the Supreme Court of the United States, the Board let the final deadline of January 2, 2014, pass yesterday without filing anything. Lawyers for the NLRB have now confirmed that the Board will not seek further review of the decisions below.
The U.S. Senate's Committee on Health, Education, Labor, and Pensions has released a report concluding that there are "widespread labor law violations among major government contractors." The publication, entitled "Acting Responsibly? Federal Contractors Frequently Put Workers' Lives and Livelihoods at Risk", stated that 49 federal contractors receiving more than $81 billion in contract payments in 2012 alone had been the targets of nearly 1,800 U.S. Labor Department enforcement actions over a six-year period. These violations were said to have arisen under the Fair Labor Standards Act, the Davis-Bacon Act, and the Service Contract Act, among other laws.
As we reported last year, the fight over graduate student organizing rights has taken yet another tumultuous turn at the National Labor Relations Board. The Board has changed its position twice in recent years on the issue of whether graduate students are employees entitled to the protections of the National Labor Relations Act or merely students, who are not protected by the Act. The Board was set to address this issue in a pending case involving New York University (NYU), but a settlement last week between NYU and the United Auto Workers (UAW) will result in a withdrawal of the case and no new precedent.
NLRB Administrative Law Judge Expands D.R. Horton; Strikes Down Arbitration Agreement with Opt-Out Provision
As we previously reported, in D.R. Horton, the NLRB held that a mandatory arbitration agreement that waives employees’ rights to participate in class or collective actions is unlawful under the National Labor Relations Act (NLRA). Despite being criticized by every federal court that has addressed the issue, the NLRB has continued to rely on D.R. Horton to find unlawful both mandatory and non-mandatory arbitration agreements. Last week, in Kmart Corp., an NLRB Administrative Law Judge (ALJ) not only followed D.R. Horton, but expanded its holding to further restrict the rights of employers to invoke arbitration agreements, even if such agreements contain opt-out clauses.
The National Labor Relations Board (NLRB) recently announced that it would enter the world of smartphone and tablet applications (better known as “apps”) and provide employers, employees and unions with information regarding their rights and obligations under the National Labor Relations Act.
On August 30, 2013, the National Labor Relations Board (NLRB) announced the release of a free NLRB mobile app for iPhone and Android users. The app is the latest phase of the NLRB’s continued campaign to educate employees about the National Labor Relations Act (NLRA) and the role of the Board in enforcing the NLRA in both union and nonunion environments. The app serves a similar purpose as the proposed NLRB notice-posting requirement that was enjoined in federal court last year. In a press release, NLRB Chairman Mark Gaston Pearce described the purpose of the app as follows:
The National Labor Relations Board (NLRB) is taking advantage of 21st Century technology to reinforce its message to employers and employees by adding a mobile app to its toolkit of resources that already includes a Twitter account and a Facebook page. On August 30, 2013, NLRB announced the launch of its new mobile app, available free of charge for iPhone and Android users. According to the NLRB’s press release, “the app provides employers, employees and unions with information regarding their rights and obligations under the National Labor Relations Act.”
Secretary of Labor Perez Addresses 2013 AFL-CIO Quadrennial Convention And Lays Out Progressive Agenda
On September 10, 2013, U.S. Secretary of Labor Thomas E. Perez, to a standing ovation from assembled labor leaders, addressed the AFL-CIO’s 27th quadrennial constitutional convention in Los Angeles, CA, claiming to feel quite “at home” with his “brothers and sisters” at the convention.
NLRB Did Not Err in Categorically Barring NLRA Back Pay for Undocumented Workers, Second Circuit Holds
Palma v. NLRB, No. 12-1199 (2d Cir. July 10, 2013): Petitioners are undocumented aliens who were unlawfully discharged for engaging in protected activities under the National Labor Relations Act (NLRA). At a compliance proceeding, the administrative law judge (ALJ) recommended that the petitioners receive back pay and unconditional offers of reinstatement. However, the National Labor Relations Board (NLRB) rejected the ALJ’s recommendation and found that the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB precludes back pay to undocumented aliens.
Recently, the National Labor Relations Board (NLRB) took another step toward expanding the ability of unions to impose requirements and costs on nonmember objectors even as it found that the Communications Workers of America (CWA) had violated the National Labor Relations Act by requiring so-called “Beck objectors” to assert their objections annually. When coupled with another decision on chargeable lobbying expenses earlier this year, the NLRB appears to be quietly signaling a retreat from broader protections for nonmember objectors.
In a widely expected decision, the Supreme Court announced this morning that it would hear the National Labor Relations Board’s appeal of the D.C. Circuit’s ruling that the recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the NLRB were unconstitutional because they did not occur during an intersession recess of the Senate. As we discussed at the end of January, in Noel Canning, the D.C. Circuit held that without those three members the Board did not have a quorum and could not act lawfully. The NLRB had announced back in March that it would seek review of the Noel Canning decision directly from the Supreme Court.
Last month, we reported on the D.C. Circuit’s decision invalidating the National Labor Relations Board’s “notice posting rule” that would have required nearly 6 million employers to conspicuously display the Board’s employee-rights poster. Last week, the Fourth Circuit decided an appeal from a South Carolina district court, and joined the D.C. Circuit in rejecting the Board’s rule. The Fourth Circuit’s decision avoided the broader constitutional questions raised by the D.C. Circuit and held simply that the NLRB had exceeded the limited powers Congress provided it under the National Labor Relations Act.
Executive Summary: The Fourth Circuit has become the second federal appeals court to strike down the National Labor Relations Board's rule requiring employers to post a notice of employee rights. In Chamber of Commerce v. NLRB (June 14, 2013), the court held that the Board exceeded the authority granted to it by the National Labor Relations Act when it promulgated the rule.
In a resounding victory for employers across the nation, the Fourth Circuit Court of Appeals affirmed a recent decision of the U.S. District Court for the District of South Carolina, striking down the National Labor Relations Board's (NLRB) controversial notice posting rule. The rule would have required most private sector employers to post in the workplace a notice informing employees of their rights under the National Labor Relations Act (NLRA). The Fourth Circuit held that the NLRB "exceeded its authority in promulgating the challenged rule." Ogletree Deakins brought the lawsuit on behalf of the Chamber of Commerce of the United States and the South Carolina Chamber of Commerce. Chamber of Commerce of the United States v. NLRB, Fourth Circuit Court of Appeals, No. 12-1757 (June 14, 2013).
Governor of Connecticut Violates First Amendment by Targeting State Employees for Firing Based on Union Membership
In State Employees Bargaining Agent Coalition v. Rowland I/O as Governor of the State of Connecticut, Connecticut Governor Dannell Molloy attempted to extract $450 million in long-term concessions from the State Employees Bargaining Agent Coalition (SEBAC) and 13 other public employee unions during the negotiation of a collective bargaining agreement. Notably, these unions represented 40,000 Connecticut state employees. The Governor advised the plaintiffs that unless they agreed to the concessions, he would fire approximately 3,000 unionized state employees. When the plaintiffs not only failed to agree to the Governor’s proposed concessions but also offered alternative concessions, the Governor ordered the firing of approximately 2,800 union employees.