Tagged: Unions

Recent NLRB Decision Helps Employees, Hurts Unions

Recent NLRB Decision Helps Employees, Hurts Unions

On March 1, 2019, the National Labor Relations Board (NLRB) issued a decision in United Nurses and Allied Professionals (Kent Hosp.), 367 NLRB No. 94 (2019) addressing the rights of individuals in collective-bargaining units who are subject to union-security requirements and elect not to be union members. The Board held that unions cannot charge these individuals for lobbying activities because such activities are not needed for unions to perform their statutory representational duties (i.e., collective-bargaining, contract administration, and grievance adjustment). Additionally, the NLRB held that unions must provide these individuals with independent verification that the financial information it shares with them about union expenditures to justify their non-member charges has been properly audited. The decision came on the heels of a memorandum issued by the Board’s General Counsel, which addressed unions’ duties to notify employees in collective-bargaining units of their right to be non-members, pay reduced charges, and revoke dues authorization checkoffs on their specific anniversary and/or contract expiration dates. The union in Kent Hosp. represented a group of registered nurses. Some of those nurses resigned their union membership and objected to the union charging them for lobbying activities. Such individuals are sometimes referred to as Beck objectors in light...

U.S. Supreme Court Issues “Epic” Decision for Employers Upholding Arbitration Agreements and Class Action Waivers

U.S. Supreme Court Issues “Epic” Decision for Employers Upholding Arbitration Agreements and Class Action Waivers

On May 21, 2018, the United States Supreme Court resolved the split amongst several Federal Circuit Courts by finding the Federal Arbitration Act (FAA) enables employers enforce class action waivers in arbitration agreements with their employees notwithstanding employees’ rights under the National Labor Relations Act (NLRA) to engage in “concerted activity.” The Court’s 5-4 decision, with the majority opinion authored by Justice Gorsuch, was rendered in In Epic Systems Corp. v. Lewis and companion cases Ernst & Young LLP et al. v. Stephen Morris et al. and National Labor Relations Board v. Murphy Oil, Inc. (all decided simultaneously). The Court ruled that Congress did not intend the NLRA to provide for class and collective actions, and although the NLRA provides employees the right to organize and bargain collectively, the statute does not dictate how claims must be adjudicated. Accordingly, the Court determined that the NLRA cannot be interpreted to provide employees with an implicit right to class and collective actions in contravention of the FAA, which explicitly confers upon employers and employees the ability to arbitrate and determine their chosen arbitration procedure. Instead, these laws must be interpreted consistently. The three companion cases involve employees challenging arbitration agreements containing class and...

NLRB Vacates Recent Joint Employer Decision

NLRB Vacates Recent Joint Employer Decision

On February 26, 2018, the National Labor Relations Board (NLRB) rescinded its recent 3-2 decision in Hy-Brand Indus. Contractors, Ltd., 365 NLRB No. 156 (2017), which had restored the traditional standard for determining when multiple entities are joint employers under the National Labor Relations Act (NLRA). The Board’s action stemmed from a determination by the NLRB’s Designated Agency Ethics Official that one of the Board Members who voted in favor of the Hy-Brand decision should not have participated in that decision. The vacatur of the Hy-Brand decision is a setback for the business community. As we previously reported, the Hy-Brand decision overruled the NLRB’s controversial joint employer decision in Browning-Ferris Indus. of Cal., Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) and restored the decades-old standard that required an entity to actually exercise direct and immediate control over another entity’s essential employment conditions and terms to be a joint employer. In Browning-Ferris, the Board decided that two or more entities could be jointly liable under the NLRA if one of the entities merely reserves the right to indirectly control essential employment conditions and terms of another entity. Once again, this funky joint employer standard as set forth in Browning-Ferris...

President Trump Nominates Fifth Board Member to Round Out NLRB

President Trump Nominates Fifth Board Member to Round Out NLRB

Earlier this month, President Donald Trump nominated management-side labor attorney, John F. Ring, to the National Labor Relations Board (NLRB). This is a significant nomination because, if Mr. Ring receives Senate approval, the Board will once again be poised to revisit pro-union actions that the NLRB took under the prior administration. This is good news for the business community. Last month, a fully-constituted five member Board took several actions that began a much anticipated releveling of the playing field between Big Labor and Corporate America in the aftermath of profound pro-union actions. Last month’s actions included decisions restoring traditional standards for deciding what constitutes an “appropriate collective bargaining unit” and when two or more entities are “joint employers.” These changes were welcomed by the business community because they provide a more balanced approach to deciding these issues. Shortly after the NLRB’s actions last month, the term of then-Chairman Philip A. Miscimarra expired, leaving one seat at the Board open and the NLRB presumably split two-to-two on a host of additional controversial pro-union actions taken by the Board under the prior administration. (Those actions include the propriety of the NLRB’s “quickie” election rule and a decision giving employees a presumptive right to use their employers’...

NLRB Gives Employers Several Reasons to Be Jolly This Holiday Season

NLRB Gives Employers Several Reasons to Be Jolly This Holiday Season

December 2017 has been one for the labor law community to remember. We have seen a wintry flurry of actions by the newly-constituted National Labor Relations Board (NLRB), which has begun a much anticipated releveling of the playing field between Big Labor and Corporate America in the aftermath of profound pro-union actions under the prior administration. On the heels of an instructive and potentially predictive memorandum issued by the Board’s new General Counsel, the NLRB raised questions about the 2014 “quickie” election rule and issued a number of decisions setting forth more neutral standards for analyzing significant legal issues under the National Labor Relations Act (NLRA), including: an administrative law judge’s ability to accept a charged party’s proposed settlement terms; when multiple employers should be deemed “joint employers” under the NLRA; an employer’s ability to take unilateral action consistent with its past practices; the legality of workplace rules that do not expressly prohibit concerted activities protected by the NLRA; and appropriate collective bargaining units. New NLRB General Counsel’s First Memorandum On December 1, 2017, the NLRB’s new General Counsel, Peter B. Robb, issued a memorandum leaving little doubt that he has a very different view of the NLRA than his predecessor on several key...

Senate Approves Trump’s Pick for NLRB General Counsel

Senate Approves Trump’s Pick for NLRB General Counsel

This week, the United States Senate approved President Donald Trump’s nomination of Peter B. Robb to be the next General Counsel of the National Labor Relations Board. The move is a key step toward releveling the playing field between Big Labor and Corporate America in the aftermath of profound pro-union actions by the prior administration, including its NLRB General Counsel. The job of General Counsel is a significant one at the Board. The General Counsel is responsible for investigating and prosecuting unfair labor practice cases and supervising the regional offices in their processing of cases. As a result, the General Counsel has control over the types of cases and legal theories that make their way to the NLRB for decisions. The prior General Counsel, Richard F. Griffin, Jr., interpreted the National Labor Relations Act in ways that subjected employers to labor law liabilities where none historically existed. This included arguing that individuals better classified as college students and independent contractors were statutory employees, neutral workplace policies were unlawful, and distinct entities in a business relationships were joint employers. Griffin’s term expired last month and Jennifer A. Abruzzo, the NLRB’s Deputy General Counsel, has been serving as the Acting General Counsel since that time....

NLRB Regional Director Continues Board’s Expansion in Higher Ed

NLRB Regional Director Continues Board’s Expansion in Higher Ed

A National Labor Relations Board (NLRB) regional director has decided that student resident advisors (“RAs”) are statutory employees under the National Labor Relations Act (NLRA). In George Washington Univ., the regional director ordered that an election take place May 3rd, so that the student RAs can decide whether to unionize through a secret ballot process. The decision is the latest in a string that expands the NLRA’s reach at colleges and universities, and comes on the heels of a memorandum authored by the Board’s general counsel that broadly interprets those decisions. Facts George Washington University requires all undergraduate students to live in residence halls until their senior year as part of the “student experience.” The university staffs its residence halls with student RAs whose role is to assist other students living in the residence halls and build relationships with and among them. The student RAs have wide discretion in performing their role, including the activities they choose to build relationships. Very few student RAs serve in the role for more than a year. There are, of course, parameters around being a student RA. They must be full-time undergraduate students who have completed at least one year of studies and are in...

USDOL New Persuader Rule Permanently Enjoined 0

USDOL New Persuader Rule Permanently Enjoined

We are pleased to report that a federal court in Nat’l Fed’n of Indep. Bus. v. Perez issued a nationwide injunction permanently enjoining the United States Department of Labor’s new persuader rule last week. The decision is a major victory for the business community because the new rule placed employers’ abilities to freely seek labor counsel in jeopardy by expanding their obligations to publicly disclose arrangements into which they entered with the labor consultants, including their attorneys.

Department of Labor’s New “Persuader” Rule Requires Employers and Labor Relations Consultants to Publicly Disclose Arrangements 0

Department of Labor’s New “Persuader” Rule Requires Employers and Labor Relations Consultants to Publicly Disclose Arrangements

On March 24, the United States Department of Labor (“DOL”) published a final rule imposing new reporting requirements under the Labor-Management Reporting and Disclosure Act (“LMRDA”) that could impede employers’ communications with their workers about unions. The rule will take effect on April 25, and will cover arrangements, agreements, and payments between employers and their labor relations consultants – including their attorneys – beginning July 1, 2016.

The Walls Have Ears: NLRB Invalidates Employer’s Prohibition on Recording in the Workplace 0

The Walls Have Ears: NLRB Invalidates Employer’s Prohibition on Recording in the Workplace

Whole Foods Markets received the proverbial ugly holiday sweater in the form of a December 24, 2015, 2-1 decision by the National Labor Relations Board that declared its policy prohibiting recording in the workplace unlawful. The decision in the cases Whole Foods Markets, Inc. and United Food and Commercial Workers Local 919 and Workers Organizing Committee of Chicago, focused on two rules contained in Whole Foods’ General Information Guide. The first prohibited the recording of meetings, with the laudable, express goals of encouraging “open communication, free expression of ideas, spontaneous and honest dialogue and an atmosphere of trust.” The only exceptions were when the recording was approved by management or all parties to the conversation consented. The second rule also prohibited the use of a recording device in order to “eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.” Seems fair, right? Not according to the NLRB.