10 big changes at the NLRB - video

[VIDEO]

The NLRB has made a lot of changes since the Republicans gained a majority.

This video discusses my top 10.

1. email
2. Joint employer
3. Independent contractor
4. Grad students
5. Micro units
6. Workplace rules
7. Election rule
8. Class actions
9. Dues checkoff
10. Unilateral changes

Pacific Coast Labor & Employment Law Conference postponed

Pacific Coast Labor & Employment Law Conference has been postponed until September 16 & 17.  See announcement at https://pacificlaborlaw.com/

NLRB's new joint-employer rule - video

[Video] Under the NLRB’s new rule, a finding of joint-employer status will be based on control - actual, direct, and immediate control.

NLRB: Joint Employer final rule

The NLRB has announced that it will issue its final rule on the standard for determining joint-employer status under the National Labor Relations Act on February 26. The final rule will guide the NLRB and those covered by the NLRA in determining whether a business is a joint employer of employees directly employed by another employer. [Text of the Final Rule]

Following is the NLRB's explanation of the Final Rule:

IMPACT OF THE FINAL RULE

A joint employer finding has significant implications for rights and obligations under the NLRA relative to collective bargaining, strike activity, and unfair labor practice liability.

• If the employees are represented by a union, the joint employer must participate in collective bargaining over their terms and conditions of employment.

• Picketing directed at a joint employer that would otherwise be secondary and unlawful is primary and lawful.

• Each business comprising the joint employer may be found jointly and severally liable for the other’s unfair labor practices.

Because of these important consequences, the purposes of the NLRA are not furthered by drawing into a collective-bargaining relationship, or exposing to secondary coercion and joint- and-several liability, a direct employer’s business partner that does not actively participate in decisions setting employees’ wages, benefits, and other essential terms and conditions of employment.

JOINT-EMPLOYER STANDARD OVERVIEW

The Final Rule:

• Specifies that a business is a joint employer of another employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment;

• Clarifies the list of essential terms and conditions: wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction;

• Provides that to be a joint employer, a business must possess and exercise such substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees as would warrant a finding that the business meaningfully affects matters relating to the employment relationship;

• Specifies that evidence of indirect and contractually reserved but never exercised control over essential terms and conditions, and of control over mandatory subjects of bargaining other than essential terms and conditions, is probative of joint-employer status, but only to the extent that it supplements and reinforces evidence of direct and immediate control;

• Defines the key terms used in the final rule, including what does and does not constitute “substantial direct and immediate control” of each essential employment term;

• Makes clear that joint-employer status cannot be based solely on indirect influence or a contractual reservation of a right to control that has never been exercised.

WHY RULEMAKING?

The Board’s 2015 decision in Browning-Ferris unsettled the law in this vitally important area by holding that a company could be deemed a joint employer if its control over the essential terms and conditions of another business’s employees was merely indirect, limited and routine, or contractually reserved but never exercised. Although the Board could have addressed this issue in yet another decision, it decided to do so through rulemaking, for several reasons:

• Rulemaking provides a means to give this complex, nuanced, and vitally important issue the kind of comprehensive and detailed explication it deserves and to which the public is entitled, resulting in greater clarity and certainty of the law under the NLRA.

• More generally, although the NLRB, throughout much of its history, has done most of its work through decision-making, it possesses statutory authority to engage in rulemaking, and the current Board intends to exercise that authority where it believes—as it does here—that doing so will enable it to provide more clarity and certainty in the law it administers.

• Rather than issuing a decision based on, and potentially limited to, the specific facts of a particular case, rulemaking allows the Board to provide broader and more detailed guidance.

• Cases are typically briefed by lawyers hired by the parties. In contrast, notice-and- comment rulemaking enables everyone who wants to weigh in on an issue to do so— including those who cannot afford to hire a lawyer to write and file a brief. The NLRB received nearly 29,000 comments on the joint-employer rule it proposed in 2018. A comparison of the proposed and final rules will demonstrate that the NLRB gave those comments the serious consideration they deserved.

• Rulemaking under the Administrative Procedure Act is strictly prospective. Thus, employers, employees, and unions will know what is coming and can prepare accordingly.

IMPLEMENTATION TIMELINE

The final joint-employer rule will go into effect April 27, 2020.

No refund of pre-Janus fair share payments

The 6th Circuit held today that a union is entitled to rely on its good faith in following existing Ohio and longstanding Supreme Court precedent permitting fair-share fees, so an objecting employee is not entitled to a refund. Lee v. Ohio Education Association (6th Cir 02/24/2020) [PDF].

In Janus v. AFSCME (2018) the US Supreme Court held that it was unconstitutional to compel public sector employees to pay fair share fees to their union. Now the 6th. 7th, and 9th Circuits have held that the employees cannot recover a refund of payments they made prior to the Janus decision. I did a video [here] on the two earlier decisions.

In Lee v. Ohio Education Association, Plaintiff Lee sought a refund of "fair share" fees she was required to pay to her public-sector union. Shortly thereafter, the Supreme Court held such fees violated the First Amendment as a form of compelled speech, Jones v. AFSCME, Council 31. The trial court granted the union's motion to dismiss, ruling that the union, as a private actor sued under 42 USC Section 1983, was entitled to rely on its good faith in following existing Ohio and longstanding Supreme Court precedent, which had expressly permitted fair-share fees.

The 6th Circuit affirmed the dismissal of plaintiff's federal cause of action because the union's good-faith defense barred the claim. The court held that the trial court properly granted the motion to dismiss plaintiff's section 1983 claim because the union's reliance on existing authority satisfied the good-faith defense as a matter of law.

With respect to plaintiff's state-law conversion claim, the court found that plaintiff was contractually obligated to pay fair-share fees pursuant to the collective bargaining agreement – just as the union was obligated to collect them. It was a condition of plaintiff's employment that she pay fair-share fees. The court concluded plaintiff, therefore, had no right to ownership or possession of them at the time they were taken. Accordingly, the court affirmed the trial court's dismissal of plaintiff's state-law conversion claim.

Pacific Coast Labor & Employment Law Conference

Click image to view the brochure.

Consistently excellent labor and employment law program. Pacific Coast Labor & Employment Law Conference in Seattle April 30-May 1.

Here’s the brochure: [PDF]

Website: https://pacificlaborlaw.com/2020-conference/2020-registration

email: registration@pacificlaborlaw.com

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Employees can't use employer's email

[Video] Overruling a 2014 decision, the NLRB is now holding that employees do not have a statutory right to use their employer’s email and other information-technology resources to engage in non-work-related communications.

In other words, employees have no right to use the employer’s email for purposes of union organizing.

Caesars Entertainment, 368 NLRB No. 143 (12/17/2019) [PDF]. Overruling Purple Communications, Inc., 361 NLRB 1050 (2014).

No refunds for Janus objectors

[Video]

In Janus v. AFSCME (2018) the US Supreme Court held that it was unconstitutional to compel public sector employees to pay fair share fees to their union. Now the 9th and 7th Circuits have held that the employees cannot recover a refund of payments they made prior to the Janus decision.

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NLRB rolling back Obama-era decisions

Three big NLRB decisions in two days.

Board Restores Employers’ Right to Restrict Use of Email

In a decision issued December 17, 2019, the National Labor Relations Board reestablished the right of an employer to restrict employee use of its email system if it does so on a nondiscriminatory basis. The case is Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB No. 143.

The Board last considered the issue presented here in Purple Communications, Inc., 361 NLRB 1050 (2014).  There, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the National Labor Relations Act.  Overruling Purple Communications, the Board today holds that employees do not have a statutory right to use employers’ email and other information-technology (IT) resources to engage in non-work-related communications.  Rather, employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate against union or other protected concerted communications.  To this extent, the Board effectively reinstated the holding of Register Guard, 351 NLRB 1110 (2007).  Recognizing that employees must have adequate avenues to engage in communications protected by Section 7 of the NLRA, the Board’s decision creates an exception for circumstances where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday. 

On August 1, 2018, the Board requested briefing from the public in this case seeking input on whether the Board should adhere to, modify, or overrule Purple Communications. The Board received 19 briefs, which it considered in reaching its decision. 

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented in part.

Board Approves Greater Confidentiality in Workplace Investigations  

In a decision issued December 17, 2019, the National Labor Relations Board held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful. The case, Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), overturns a 2015 decision— Banner Estrella Medical Center, 362 NLRB 1108 (2015), enf. denied on other grounds 851 F.3d 35 (D.C. Cir. 2017)—that had required employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality.   

The Board concluded that the framework set forth in Banner Estrella improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both Supreme Court and Board precedent. The Board also noted that the new standard better aligned with other federal guidance, including EEOC enforcement guidance.

In today’s decision, the Board applied the test for facially neutral workplace rules established in The Boeing Company, 365 NLRB No. 154 (2017), and determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful. Because the rules at issue in this case did not limit confidentiality to the duration of the investigation, the majority remanded this case for further consideration.

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented.

Board Restores Longstanding Union Dues Checkoff Rule

In Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center, 368 NLRB No. 139 (2019), issued December 16, 2019, the National Labor Relations Board overruled 2015 changes governing dues checkoff obligations when a collective bargaining agreement ends, restoring precedent that had been in place since 1962. The Board held that an employer’s statutory obligation to check off union dues ends upon expiration of the collective-bargaining agreement containing the checkoff provision.

The majority found that dues checkoff provisions belong in the limited category of mandatory-bargaining subjects that are exclusively created by the contract and are enforceable through Section 8(a)(5) of the National Labor Relations Act only for the duration of the contractual obligation created by the parties. In the majority’s view, there is no independent statutory obligation to check off and remit employees’ union dues after the expiration of the collective-bargaining agreement even where the contract does not contain a union-security provision.

This decision overturns Lincoln Lutheran of Racine, 362 NLRB 1655 (2015), and returns Board precedent to the rule established under Bethlehem Steel, 136 NLRB 1500 (1962).

Chairman John F. Ring was joined by Members Marvin Kaplan and William Emanuel in the majority opinion. Member Lauren McFerran dissented.

NLRB will rule out defining students as employees

You can forget about NLRB cases that classified graduate students as statutory employees. The handwriting is clear that the NLRB will adopt a rule saying that they are not.

The proposed rule is elegantly simple:

"Students who perform any services, including, but not limited to, teaching or research assistance, at a private college or university in connection with their undergraduate or graduate studies are not employees within the meaning of Section 2(3) of the Act."

The NLRB published a Notice of Proposed Rulemaking (NPRM) [PDF] in the Federal Register on September 23, 2019, proposing a rule regarding students. Addressing a recurring question regarding the definition of “employee” under Section 2(3) of the National Labor Relations Act (NLRA), the proposed rule would exempt from the NLRB’s jurisdiction undergraduate and graduate students who perform services for financial compensation in connection with their studies.

Through issuance of the NPRM, the Board seeks public comment on its proposed view that students who perform services – including teaching and/or research – for compensation at a private college or university in connection with their studies are not “employees” under the NLRA. The basis for this proposed rule is the Board’s preliminary position, subject to revision in light of public comment, that the relationship these students have with their school is predominately educational rather than economic.

In announcing the proposed rule, NLRB Chairman John F. Ring stated: “In the past 19 years, the Board has changed its stance on this issue three times. This rulemaking is intended to obtain maximum input on this issue from the public, and then to bring stability to this important area of federal labor law.” Chairman Ring was joined by Board Members Marvin E. Kaplan and William J. Emanuel in issuing the proposed rulemaking. Board Member Lauren McFerran dissented.

Public comments are invited on all aspects of the proposed rule and should be submitted within 60 days of the Notice’s publication in the Federal Register, either electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001. Any person wishing to comment on any ongoing rulemaking by the National Labor Relations Board must do so in accordance with the applicable Notice of Proposed Rulemaking. Communications submitted in any other manner, including comments on this website, will not be considered by the Board. 

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Will the NLRB crack down on highly offensive speech?

It's about time.

The NLRB is requesting briefs on whether the Board should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature.

The current NLRB cases really cannot be defended. If – during a strike or during picketing – an employee makes the most outrageous statements (rude, racially offensive, sexually offensive), then this is part of "protected" activity and the employer cannot fire or otherwise discipline an employee for doing that.

Of course, some rough language ought to be tolerated when a union and employer are engaged in economic warfare. But let's find a rule that no longer protects speech that is simply ugly racial and sexual slurs.

The Board seeks public input on whether to adhere to, modify, or overrule the standard applied in previous cases in which extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act (NLRA). Specifically, the notice seeks comments relating to the following cases: Plaza Auto Center, 360 NLRB 972 (2014), Pier Sixty, LLC, 362 NLRB 505 (2015), and Cooper Tire, 363 NLRB No. 194 (2016).

About the invitation for briefing, Chairman John F. Ring stated: “The Board’s request for briefing on this important topic reflects its long-standing practice of seeking input from interested parties when the Board believes it can benefit from such briefing. We look forward to considering the views of all interested parties.”

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in inviting the filing of briefs. Member Lauren McFerran dissented.

Amicus briefs not to exceed 25 pages in length shall be filed with the Board in Washington, D.C. on or before November 4, 2019. The parties are permitted to file responsive briefs not to exceed 15 pages in length on or before November 19, 2019.

The case is General Motors LLC, 14-CA-197985 and 14-CA-208242. Click here to read the notice and invitation to file briefs.

NLRB proposes rulemaking on employee free choice

The NLRB will publish a Notice of Proposed Rulemaking [Federal Register] on August 12, 2019, proposing three amendments to its Rules and Regulations that "would better protect employees’ statutory right of free choice on questions concerning representation."

Blocking Charge Policy: Replace the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.

Voluntary Recognition Bar: Return to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and a 45-day open period within which to file an election petition.

Section 9(a) Recognition in the Construction Industry: In the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001).

Public comments are invited on all aspects of the proposed rule and should be submitted within 60 days of the Notice’s publication in the Federal Register.

NLRB Sets Standards Affecting Beck Objectors

NLRB Sets Standards Affecting Beck Objectors
Union Lobbying Expenses Are Not Chargeable

No surprises here:

Nonmember objectors cannot be compelled to pay for union lobbying expenses, the National Labor Relations Board ruled today. The Board majority held that lobbying activity, although sometimes relating to terms of employment or incidentally affecting collective bargaining, is not part of the union’s representational function, and therefore lobbying expenses are not chargeable to Beck objectors. The ruling relies on relevant judicial precedent holding that a union violates its duty of fair representation if it charges agency fees that include expenses other than those necessary to perform its statutory representative functions.

The Board majority also held that it is not enough for a union to provide objecting nonmembers with assurances that its compilation of chargeable and nonchargeable expenses has been appropriately audited. Citing the “basic considerations of fairness” standard adopted by the Supreme Court, the Board held that a union must provide independent verification that the audit had been performed. Failure to do so violates the union’s duty of fair representation.

The case, United Nurses & Allied Professionals (Kent Hospital) [PDF], is the Board’s long-awaited decision affecting certain rights of nonmember objectors under the Supreme Court’s decision in Communications Workers of America v. Beck, 487 U.S. 735 (1988). In that decision, the Supreme Court held that private-sector nonmember employees subject to union security who object to the expenditure of their agency fees for activities other than collective bargaining, contract administration, or grievance adjustment can only be compelled to pay that portion of the agency fee necessary to the union’s performance of “the duties of an exclusive representative of employees in dealing with the employer on labor-management issues.”

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented.

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Another attack on public sector unions

There's a petition for certiorari pending at the US Supreme Court asking the Court to take up the issue of "Whether it violates the First Amendment to appoint a labor union to represent and speak for public-sector employees who have declined to join the union." Uradnik v. Inter Faculty Organization [Briefs]

Kathleen Uradnik sought a preliminary injunction challenging the constitutionality of an exclusive collective bargaining representative in the public sector, asserting that “the University and State of Minnesota [should] not appoint the Union to speak for her and not force her into an expressive association with it.”

The trial court denied the preliminary injunction, and the 8th Circuit affirmed in December 2018, having decided that Uradnik "cannot show a likelihood of success on the merits of her compelled speech argument."

The Supreme Court may or may not want to hear this case, so we'll just hide and watch.

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NLRB overrules 2014 case on how to decide who is an independent contractor

SuperShuttle DFW, Inc. (NLRB 01/25/2019) [PDF]

Part of a series - Employment Law Case of the Week - by Ross Runkel.

The NLRB announced on January 25 a return to its long-standing independent-contractor standard, reaffirming the Board’s adherence to the traditional common-law test. In doing so, the Board clarified the role entrepreneurial opportunity plays in its determination of independent-contractor status, as the D.C. Circuit has recognized.

The case, SuperShuttle DFW, Inc. (NLRB 01/25/2019) [PDF], involved shuttle-van-driver franchisees of SuperShuttle at Dallas-Fort Worth Airport. Applying its clarified standard, the Board concluded that the franchisees are not statutory employees under the National Labor Relations Act but rather independent contractors excluded from the Act’s coverage.

The Board found that the franchisees’ leasing or ownership of their work vans, their method of compensation, and their nearly unfettered control over their daily work schedules and working conditions provided the franchisees with significant entrepreneurial opportunity for economic gain. These factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, resulted in the Board’s finding that the franchisees are not employees under the Act. The decision affirms the Acting Regional Director’s finding that the franchisees are independent contractors.

This decision overrules FedEx Home Delivery, a 2014 NLRB decision that modified the applicable test for determining independent-contractor status by severely limiting the significance of a worker’s entrepreneurial opportunity for economic gain.

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented.

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