NLRB nomination: David Prouty

The President has announced his intent to nominate David Prouty to fill an up-coming vacancy at the National Labor Relations Board. The vacancy will arise in late August when William Emanuel’s term expires.

Prouty’s LinkedIn profile: “David Prouty is the General Counsel of Service Employee International Union (SEIU) Local 32BJ, the largest labor union for property service workers in the country with over 175,000 members.

“He served as General Counsel of the Major League Baseball Players Association (MLBPA) from 2013 – 2017 and as Chief Labor Counsel of the MLBPA from 2008 – 2013. Prior to June 2008, Mr. Prouty was General Counsel of UNITE HERE, the union formed by the 2004 merger of UNITE, the Union of Needletrades, Industrial and Textile Employees, with HERE, the Hotel Employees and Restaurant Employees International Union, and was General Counsel of UNITE from 2001 - 2004.

“Before his appointment as General Counsel of UNITE, Mr. Prouty was Southern Regional Counsel for UNITE and its predecessor union, the Amalgamated Clothing and Textile Workers Union (ACTWU), for fifteen years and litigated many of the union’s landmark organizing cases including Fieldcrest Cannon, S. Lichtenberg, Tultex and Kmart.

“He was the Union Co-Chair of the ABA’s Committee on Practice and Procedure before the NLRB from 2007 – 2010; was a member of the NLRB Union Advisory Panel from 1997 to 1998; is a Fellow of the College of Labor and Employment Lawyers, and is a member of the Peggy Browning Fund’s Advisory Board.

“Mr. Prouty graduated from Walter Johnson High School in Bethesda, Maryland in 1976; received his AB magna cum laude from Bowdoin College in Brunswick, Maine in 1980; worked as a researcher and organizer for the American Federation of State, County and Municipal Employees (AFSCME) from 1980 to 1983; and received his JD cum laude from Harvard Law School in 1986.”

SCOTUS: Union access rule is a "taking"

[Watch the 90-second video]

California has a regulation that grants labor organizations a "right to take access" to an agricultural employer’s property in order to solicit support for unionization.

The US Supreme Court holds (6-3) that this appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. Cedar Point Nursery v. Hassid (US Supreme Ct 06/23/2021). [PDF]

That obligates the government to provide the owners with just compensation.

This is true even though the regulation does not allow for permanent and continuous access 24 hours a day, 365 days a year. A physical appropriation is a taking whether it is permanent or temporary. The duration of the appropriation bears only on the amount of compensation due.

The Court declined to adopt the theory that the access regulation merely regulates, and does not appropriate, the growers’ right to exclude.

Three Justices would hold that this was a "regulation" which requires the use of a complex balancing test to determine whether there has been a compensable taking.

NLRB nomination: Gwynne Wilcox

The President has nominated Gwynne Wilcox to fill a vacant seat at the National Labor Relations Board.

Wilcox is a partner at the New York City law firm Levy Ratner, where she represents unions and employees. She is associate general counsel of 1199SEIU – a local of the Service Employees International Union.

She previously worked as an NLRB field attorney in New York.

She is a graduate of Syracuse University (B.A., 1974) and Rutgers University School of Law (J.D., 1978).

The NLRB currently is made up of three Republicans and one Democrat, with one vacancy. If Wilcox is confirmed by the Senate, Republicans will still be in the majority. Another seat will open up in August, which will make room for one more Democrat appointee.

But politics being what it is these days, there is no telling whether the President can get his nominees confirmed by the Senate.

Meanwhile, here's a video in which I make some predictions about changes to expect from a Democrat-controlled NLRB.

[Watch the video]

NLRB nixes proposed grad student rule. Too busy.

The NLRB is withdrawing its proposed rule dealing with graduate students. [Federal Register]

The proposed rule would have established that students who perform any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies are not “employees” within the meaning of the National Labor Relations Act.

Current Board precedent allows such students to be classified as “employees,” thus giving them the right to organize a union and to have the NLRB conduct a representation election — potentially leading to a collective bargaining agreement.

In a press release, the Board says, "The Board has decided to withdraw this rulemaking proceeding at this time in order to focus its limited resources on competing Agency priorities, including the adjudication of unfair labor practice and representation cases currently in progress."

6 changes ahead at the NLRB (video)

[Watch the video: https://youtu.be/eYb6hzjSyz0]

Non-union workplaces will feel the impacts from these changes more than unionized workplaces will.

The Republican majority will stay in place for most of 2021, and changes will roll out — perhaps slowly — after the majority shifts to the Democrats.

Here is my list of 6:

1-   § 7 balancing

2-   Employer's email

3-   "Employee" definition

4-    Joint employers

5-    Micro units

6 - Election rule

Prediction in SCOTUS's "union trespass" case [Video]

Watch the video: https://youtu.be/0RoA__x92s0

I'm predicting that the US Supreme Court is going to overrule the 9th Circuit in a case involving union representatives getting access to private property. The case is Cedar Point Nursery v. Hassid [Briefs].

The California Agricultural Labor Relations Board has a rule that says that agricultural growers in California are required to allow union representatives to come onto their property for as long as three hours a day and as many as 120 days a year. The three hours are an hour before work, an hour after work, and an hour during lunch.

The question in this case is whether this results in a "taking" under the 5th amendment, so that the government is required to compensate the growers for that taking. The cert petition phases the issue this way: "Whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment."

There's no question about whether this rule is valid. There's no question about whether it's a smart rule or an unwise rule. It's a question of whether this is a taking that requires compensation.

Both parties agree that what the government has done is taken easement.

What the Board is saying is Well, it's not all the time. It's not continuous. It's intermittent. It's only 120 days. It's only three hours a day And there are limitations on what these union reps can do while they are on the property.

And the growers are saying Well, yeah, but that doesn't really make any difference. If you take an easement, that is per se a “taking” under the 5th amendment, and the fact that it's intermittent and that there are restrictions on what the union reps can do — that goes to the amount of compensation. It doesn't go to the question of whether it's a taking in the first place.

And I'm predicting that the Supreme Court will come down on the side of the growers and say yes, this is a taking. The distinction between all-the-time and part-time really doesn't make any difference.

I say that not because I think the Supreme Court has some bias in favor of management or some ax to grind against unions. It's that this new Supreme Court has shown that it's willing to put much more vitality into the Bill of Rights. And this is a case where I think that's exactly what they're going to do.

The case will be argued probably later in the spring and we’ll get a decision by Summer.

Cert granted in "union trespass" case

The US Supreme Court granted certiorari in Cedar Point Nursery v. Hassid [Briefs] to review the 9th Circuit's decision. California law allows union organizers to go onto the land of agricultural growers for up to three hours per day and for up to 120 days per year. The activities are limited to meeting and talking with employees and soliciting their support; the number of organizers is limited; and business disruption is prohibited.

The issue in this case is whether California has to compensate the growers for a "taking" under the 5th amendment. This case is not about whether California's rule is lawful, or whether it is appropriate.

From a legal standpoint, this is a 5th amendment "takings" case. From a practical standpoint, this is a battle between agricultural employers and labor unions.

Here's how the cert petition phrased the Question Presented:

"California law forces agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The regulation provides no mechanism for compensation. A divided panel below held that, although the regulation takes an uncompensated easement, it does not effect a per se physical taking of private property because it does not allow '24 hours a day, 365 days a year' occupation. As an eight-judge dissent from denial of rehearing en banc noted, the panel 'decision not only contradicts Supreme Court precedent but also causes a circuit split.'

"The question presented is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment."

Here's how the California Agricultural Labor Board phrased the Question Presented:

"In 1975, the California Agricultural Labor Relations Board promulgated a regulation affording union organizers a limited right to access the property of agricultural employers. Cal. Code Regs., tit. 8, § 20900(e). The Board modeled the regulation on a right of access that this Court has recognized under the National Labor Relations Act. See id. § 20900(b); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). The state regulation restricts the right of access in several ways. Among other things, organizers may access only non-work spaces, during non-work periods, for no more than three hours per day, and for no more than four thirty-day periods each year. Cal. Code Regs., tit. 8, § 20900(e)(1)(A), (3). The only permissible purpose of the access is for organizers to meet and talk with employees and solicit their support, id. § 20900(e), and the access right terminates five days after the completion of a ballot count in a union representation election, id. § 20900(e)(1)(C). The organizers must provide advance notice to the employer, id. § 20900(e)(1)(B), and only two organizers, plus one additional organizer for every 15 employees beyond 30, may access the property, id. § 20900(e)(4)(A). Disruption of the employer’s business operations is prohibited. Id. § 20900(e)(4)(C).

"The question presented is: Whether the access regulation effects a per se physical taking of petitioners’ property under the Fifth Amendment."

Remote arbitration hearing

Today I’m conducting my first remote arbitration hearing. I had tried to persuade several others to hold remote hearings, but they all declined, preferring to postpone. I finally stopped asking. Then I got word that one company and union wanted to have a remote hearing.

It makes total sense. The lawyers are in two different states, and I’m in a third. Considering the two lawyers, the arbitrator, and the location where the grievance arose, we’re looking at four locations separated by 800 miles. The only losers will be the airlines and the hotels.

Although I have spent a lot of time preparing and practicing, doing something like this gives me the jitters. Wish me luck.

By the way, you can read my Protocol for Remote Hearings here.

And here is a video on Remote Arbitration Hearings: https://youtu.be/Fyx_ZU62yN0

Refund of fair share dues paid pre-Janus is denied. Next stop: Supreme Court.

It's quite rare for an appellant to ask a court to affirm the decision below. Yet that is what happened in Ocol v. Chicago Teachers Union (7th Cir 12/09/2020).

Joseph Ocol is a math teacher in the Chicago public school system. After he was booted out of his union for failure to support a strike in 2016, he kept paying fair-share fees to the union. Those payments were required by the collective bargaining agreement, as authorized by a state statute.

Then the US Supreme Court decided Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), which held that forcing payment of fair share dues violates the constitution.

Ocol sued to get a refund of the dues he had paid prior to Janus, and mounted a First Amendment challenge to exclusive representation. The trial court held against him.

On appeal to the 7th Circuit, Ocol admitted that both claims are squarely foreclosed by precedent and requested that the 7th Circuit summarily affirm judgment in the defendants’ favor so that he may appeal to the Supreme Court.

The 7th Circuit was only too happy to comply. After all, every appellate court that has taken up the question has reached the same answer: A private party acting under color of state law for § 1983 purposes is entitled to a good-faith defense. And, in Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), the Supreme Court rejected a First Amendment challenge to a similar exclusive representation provision applicable to state colleges in Minnesota.

Looks like Ocol will petition for certiorari. My bet is that cert will be denied, mainly because there is no split of authority among the lower courts.

Scabby the Rat might become illegal

NLRB Press Release:

Washington, DC, October 27, 2020 –

In an order issued today, the National Labor Relations Board invited parties and amici to submit briefs in International Union of Operating Engineers, Local Union No. 150 (Lippert Components, Inc.), 370 NLRB No. 40. In the underlying case, the Administrative Law Judge found that the union’s stationary display of a 12-foot inflatable rat and two large banners on public property did not constitute picketing or otherwise coercive nonpicketing conduct in violation of Section 8(b)(4) of the National Labor Relations Act. In the notice and invitation to file briefs, the Board seeks public input on the following questions:

1) Should the Board adhere to, modify, or overrule Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 NLRB 797 (2010), and Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB 1290 (2011)?

2) If you believe the Board should alter its standard for determining what conduct constitutes proscribed picketing under Section 8(b)(4), what should the standard be?

3) If you believe the Board should alter its standard for determining what nonpicketing conduct is otherwise unlawfully coercive under Section 8(b)(4), what should the standard be?

4) Why would finding that the conduct at issue in this case violated the National Labor Relations Act under any proposed standard not result in a violation of the Respondent’s rights under the First Amendment?

Chairman Ring and Members Kaplan and Emanuel joined in issuing the notice and invitation; Member McFerran dissented.

Briefs by the parties and amici not exceeding 25 pages in length and briefs by amici not exceeding 20 pages shall be filed with the Board in Washington, DC on or before November 27, 2020, and December 28, 2020, respectively. The parties may file responsive briefs on or before January 11, 2021, which may not exceed 15 pages in length. The parties and amici shall file briefs electronically by going to www.nlrb.gov and clicking on “E-Filing.” If assistance is needed in E-Filing on the Agency’s website, please contact the Office of the Executive Secretary at 202-273-1940.

NLRB rules on offensive outbursts

[View the video]

For years, I taught labor law to smart law students and they could never understand why the NLRB would allow employees to use vile language, racial slurs, profanity, sexually inappropriate comments, and give the NLRB’s protection to that kind of language simply because the language was being used in the context of protected activity such as picketing or engaging in a grievance dispute between the employee and management.

Well now, as of July 21, the NLRB has changed the rules. They've now got some common sense.

The opinion: General Motors LLC [PDF].
NLRB press release: [Here]

They're simply going to apply the Wright Line test, which is quite familiar to labor lawyers.

What this means is that the General Counsel, who's the prosecutor for the NLRB, will have to prove that one of the motives that the employer had was to get at the protected activity, and at that point the burden of proof will shift over to the employer to prove that the employer would have disciplined the employee anyway.

So now we have some common sense and the labor students will be able to understand what's going on.

Judge says NLRB's new election rules are unlawful

The US District Court for the District of Columbia has ruled "unlawful" several provisions of the NLRB's recent revision of rules governing NLRB elections. AFL-CIO v. NLRB (Dist DC 05/30/2020).

This comes one day before their effective date of May 31, 2020.

In a two-page order, the court said:

"[T]he challenged portions of the regulation at issue are not procedural rules that are exempted from the notice-and-comment rulemaking requirements of the APA, see 5 U.S.C. § 553(b)(3)(A), and because each of these specific provisions was promulgated without notice-and-comment rulemaking, each one must be held unlawful and set aside, see id. § 706(2). This Court will not vacate the remainder of the rule, however; instead, this matter will be remanded to the NLRB for reconsideration in light of this Court’s ruling."

The court promised an explanatory opinion “soon.”

NLRB Resumes Representation Elections

Press release from the NLRB:

WASHINGTON, DC – April 1, 2020 – The National Labor Relations Board will not extend its temporary suspension of Board-conducted elections past April 3, 2020 and will instead resume conducting elections beginning Monday, April 6, 2020.  On March 19, 2020, because of the extraordinary circumstances related to the COVID-19 pandemic, the NLRB had ordered the temporary suspension of all Board-conducted elections through April 3, 2020.  

As explained when ordering the suspension, the Board took the extraordinary action to ensure the safety of Agency employees and members of the public involved in elections. At the time, several of the NLRB’s regional offices had been closed and other locations were operating with limited staffing such that the Board did not believe it was possible to effectively conduct elections.

Chairman John F. Ring stated: “Conducting representation elections is core to the NLRB’s mission, and ensuring elections are carried out safely and effectively is one of our primary responsibilities. Two weeks ago, when the Board made the difficult decision to suspend elections, the developing situation made it impossible to ensure the safety of our employees or the public. With many regional offices closed and most employees teleworking, the Board was not confident that any type of election could be run effectively. Based on these concerns, the Board determined that a two-week suspension would provide the General Counsel, who is delegated authority to supervise the regional offices, which conduct elections on the Board’s behalf, the opportunity to fully review the logistics of the election procedures in light of the unprecedented situation. The General Counsel now has advised that appropriate measures are available to permit elections to resume in a safe and effective manner, which will be determined by the Regional Directors. We appreciate the patience and understanding of all NLRB stakeholders during this challenging time.” 

Duty to bargain in emergency situations - NLRB Memo

Here’s a Memo from the NLRB’s General Counsel on the Duty to bargain in emergency situations. [Also by PDF]

NLRB suspends elections - COVID-19

March 19, 2020 press release from the NLRB:

Due to the extraordinary circumstances related to the COVID-19 pandemic, the National Labor Relations Board [on March 19] approved the suspension of all representation elections, including mail ballot elections, for the next two weeks effective immediately, through and including April 3, 2020.

The Board deems this action necessary to ensure the health and safety of our employees, as well as those members of the public who are involved in the election process. Moreover, given the closure of several Regional Offices and limited operations and significant telework at others, the Board does not believe that it is possible to effectively conduct elections at this time.

The Board will continue to monitor this evolving situation and determine whether additional extension of this suspension may be necessary.

I expect this will last much longer than two weeks. If elections resume during the next three months, I expect they will be something other than in-person balloting.