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.”

Bright-line rule for NLRB dual-marked ballots

The NLRB has adopted a bright-line rule for dual-marked ballots in representation elections, holding that "where a ballot includes markings in more than one square or box, it is void." Providence Health & Services 369 NLRB No. 78 (05/13/2020) [PDF].

Pretty simple.

SCOTUS preview: Ministerial exception

[Video] I’m predicting a clear-cut victory for the schools in Our Lady of Guadalupe School v. Morrissey-Berru [Briefs].

Fifth grade teachers were fired, and claim violations of anti-discrimination laws. The schools argue that the 1st amendment “ministerial exception” allows them to decide who to hire and fire without any government interference.

The central issue is whether these teachers qualify as “ministers.”

Here’s hint at why I think the schools will win: I think there's already three Justices that are lined up in favor of the schools. Justice Alito and Kagan have made it very clear that all they care about is what this teacher is actually doing. They don't care about the titles or things like ordination and that sort of formal stuff. And Justice Thomas has said all he cares about is whether the school has a good faith belief that the teacher is helping to propagate the religion.

Employer waived its right to compel arbitration

[Video] We know that courts will enforce an arbitration clause in an employment agreement. We also know that active participation in a lawsuit can waive that right.

Here we have a case out of the District of Columbia. An ex-employee sued claiming employment discrimination and the employer filed a motion to dismiss, another motion to dismiss trying to move the case to the Philippines, filed an answer with 23 affirmative defenses, and agreed to a very lengthy discovery process.

Five months after the suit was filed the employer filed a motion to compel arbitration. And they had no explanation for that five month delay.

So the court held that this was a waiver. TRG Customer Solutions v. Smith (Dist of Columbia 04/30/2020) [PDF].

The court couldn't figure out whether this employer simply didn't realize until too late they had the right to arbitrate, or whether they simply waited until it was clear they couldn't get a dismissal. And the court talked about the problem of gamesmanship and manipulation.

In any event the employer waived its right to arbitrate, and this case is going to stay in court.

Employee? Or not?

[Video]

This video tells the stories of two people who sued claiming they were employees. They wanted to get paid minimum wage.

One was a juror who was paid $10 per day plus mileage.

The other was a man who chose to go to a drug and alcohol treatment center rather than jail. And the treatment center required him to work - for no pay at all.

They both lost. (No surprise.)

How then shall we live?

[Video] I usually have something dealing with employment law.

Today is different because today is different. My lovely wife has a few words to say on the topic of “How then shall we live?”

Remote arbitration hearings

[Video] Remote arbitration hearings could be your next best friend.

Video touches on security, control panel, controlling screen, private breakout rooms, exhibits, and witnesses.

SCOTUS age discrimination decision - video

[Video] A US Supreme Court age discrimination case holds that for federal employees, "any" discrimination can establish liability. However "but-for" causation required for a tangible remedy. Babb v. Wilkie (US Supreme Court 04/06/2020) (8-1) [PDF].

This decision was a victory for the employee, yet it was a hollow victory indeed.

Protocol for Remote Hearings

Here is my Protocol for Remote Hearings. You can also view and download a PDF.

     I have a Zoom Pro Level license, and am available to conduct remote arbitration hearings.

     This Protocol for Remote Hearings explains the use of Zoom for conducting a remote hearing. Once such a hearing is agreed upon, the arbitrator will issue precise instructions tailored to the specific case.

Cost: There is no added cost to the parties or to anyone participating in the hearing. Participants do not need to register with Zoom or to have a Zoom license.

Hardware: Use a PC, Mac, Linux, iOS, or Android. It is best to use a desktop, laptop, or tablet that has a webcam, and to have a DSL or good Wi-Fi connection. You can also use a smartphone or a voice-only telephone.

Initiating the hearing: The arbitrator will email a link to click in order to enter the hearing, along with a password. This will go to each person who will be attending the hearing – the advocates, each person on each side's team, and the witnesses.

When the hearing begins, each participant will be able to view all other participants, except for any participant using a voice-only telephone.

Physical locations: Participants can be anywhere: all together in one place, in separate places for the employer and union, each person in a separate place, or any combination of these.

Security: Participants will receive a password which should not be shared with others. Zoom meetings are encrypted. If the parties agree to have the arbitrator record the hearing, the recording will be saved on the arbitrator's local computer.

Private breakout rooms: The arbitrator will create a set of private breakout rooms – at least one for the Employer and one for the Union. During breaks, the arbitrator can assign each participant to a private breakout room where only those individuals can see each other and speak to each other.

Witnesses: If desired, each witness can be sequestered by having the arbitrator place each witness in a separate breakout room, and the arbitrator can bring the witness into the hearing when needed. The arbitrator will prepare special instructions for the witnesses.

Exhibits: Parties should agree on a method for submitting and exchanging exhibits, such as using a set of joint exhibits and emailing them to the arbitrator prior to the hearing. If a new exhibit needs to be introduced during the hearing, Zoom allows participants to transmit computer files to the other participants.

Recording: Parties should agree on whether or not the arbitrator will record the hearing. Any recording will be saved on the arbitrator's local computer (rather than in the cloud).

Pre-hearing practice: The arbitrator recommends that the parties participate in a complimentary practice session a week or two before the scheduled hearing to make sure everyone is familiar with the Zoom features.

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]

§1981 cases require but-for causation

[Video] Entertainment Studios Network (ESN), owned by an African-American, sued Comcast, a cable television conglomerate, claiming that Comcast's refusal to carry ESN's channels violated 42 USC §1981(a), which guarantees "[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." At the pleading stage, the case turned on which causation standard to use. The trial court ruled that the plaintiffs had to point to facts plausibly showing that racial animus was a "but for" cause of the defendant’s conduct. The 9th Circuit reversed, holding that a plaintiff must only plead facts plausibly showing that race played "some role" in the defendant’s decisionmaking process.

The US Supreme Court unanimously held that a §1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains constant over the life of the lawsuit. The Court said, "It is 'textbook tort law' that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but-for causation," and there is no exception for §1981. Although Congress in 1991 adopted a "motivating factor" causation test for Title VII cases, §1981 dates back to 1866 and has never said a word about motivating factors.

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.

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/