Management-Side Labor Law Attorney Peter Robb Nominated for NLRB General Counsel

As expected, Peter B. Robb has been nominated by President Donald Trump to become the National Labor Relations Board’s next General Counsel. Robb is a long-time management labor law attorney. If confirmed, Robb will succeed Richard F. Griffin, Jr., who has been GC since November 2013. Griffin’s term expires in November 2017. Among other responsibilities, the GC investigates and prosecutes unfair labor practice cases. Through the process of deciding which unfair labor practice cases should be litigated and potentially reach the five-member NLRB for decision, the GC controls which cases the Board prioritizes and pursues.

When a case reaches the NLRB for decision, the GC can ask the NLRB to change existing precedent. Robb has been critical of the Board’s “tenacity to find neutral policies … unlawful,” such as employers’ social media policies and values statements. Robb also has argued that the NLRB’s new “quickie” representation election procedures give unions “a distinct advantage” (e.g., by shortening the time in which an employer has to react to a union election petition). Further, he has signaled that he would seek to undo the Obama Board’s expansion of the Board’s “joint employer” doctrine.

Since Robb, if confirmed, will not take office until November, changes in Obama-Board precedent likely will not begin to happen until 2018.

Discharge of Employee Who Protested Illegal Policy By Himself Ran Afoul of NLRA, Federal Appeals Court Rules

An employee who was discharged after protesting an admittedly illegal policy was entitled to reinstatement and back pay despite having acted on his own, the federal appeals court in New York has ruled, enforcing a National Labor Relations Board order. National Labor Relations Board v. Long Island Ass’n for AIDS Care, Inc., No. 16-2325 (2d Cir. Aug. 31, 2017). The Court stressed that “even one individual employee” may not be required “to abide by unlawful restrictions as a condition of employment.”

Background

LIAAC provides HIV/AIDS prevention counseling and treatment. Marcus Acosta had been a community outreach specialist at LIAAC about one year when he was discharged.

Confidentiality was a high priority for LIAAC. It required all employees to sign a “Confidentiality Statement” at the time of hire. The Confidentiality Statement directed employees to keep information concerning clients and their medical conditions confidential and prohibited employees from disclosing information such as wages, salaries, and working conditions and from speaking to the media about LIAAC.

Acosta had signed the Confidentiality Statement without incident at the time of hire. During his employment, Acosta had performance problems and had several conflicts with his supervisors. Shortly after his one-year anniversary, LIAAC asked him to sign the Confidentiality Statement again. He signed it, but indicated on the document that he was doing so “under duress” in protest of the requirements to keep wages and working conditions confidential. He was discharged. Acosta then filed an unfair labor practice charge challenging the discharge under the National Labor Relations Act.

Unlawful Policies

The NLRB concluded LIAAC’s prohibitions on discussion of wages and working conditions and on speaking with the media were unlawful. These types of rules have long been held to violate employee rights under the NLRA. It ruled that LIAAC’s discharge of Acosta for protesting those prohibitions was unlawful and ordered that he be reinstated with back pay.

On appeal to the Second Circuit Court of Appeals, LIAAC claimed Acosta was discharged for insubordination, i.e., refusing to the sign the Confidentiality Statement without the “under duress” qualifier. It argued that, since he engaged in insubordination on his own, not with any other employee, he was not engaged in “concerted activity” protected by the NLRA, and therefore, LIAAC may discharge him.

The Court disagreed. It stated:

An employer may not require even one individual employee to abide by unlawful restrictions as a condition of employment. That the employees have not yet organized to protest the unlawful nature of the restriction at issue does not make it any less unlawful. The contrary rule urged by LIAAC, that an employee can be required to comply with by an unlawful policy and the employee is only protected from the unlawful policy if he or she actively organizes with other employees against it is illogical and untenable.

Lesson

The decision demonstrates the risks employers run when their personnel practices and policies are not carefully vetted to ensure legal compliance. It is critically important to ensure that employment policies are not only carefully and thoughtfully drafted to meet the needs of the business, but also that they are fully legally compliant.  Policies which are lawful and properly and uniformly applied go a long way toward substantially reducing the risk of liability from employment-based claims.  Had the policy here been lawful, the employer’s argument that the employee was lawfully discharged because he acted alone may have been accepted by the Court.

Employers Take Note: Public’s Approval of Unions Goes Up, Gallup Reports

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.

While only 22% of respondents believe unions will become stronger in the future and 46% believe they will become weaker, 39% of respondents would like unions in the United States to have more influence. This is the highest figure recorded in the 18 years Gallup has asked the question.

According to Gallup.com, the poll results are based on telephone interviews conducted among a random sample of 1,017 adults at least 18 years old, living in the 50 states and the District of Columbia. The margin of error is ±4%.

Employers should make note of this result. A likely significant reason for the decline in the number of unionized employees in the private sector (now at 6.6%) has been Americans’ negative view of unions. Indeed, unions know this. Not long ago, the AFL-CIO spent millions of dollars on an advertising campaign touting the slogan “Union Yes,” which was designed to promote a positive view of unions (hence, the “Yes”). Now that six out of 10 Americans view unions positively, a window has opened for unions to regain some of the strength they once had.

Seattle Ordinance Allowing Ride-Sharing Drivers to Unionize Temporarily Blocked by Ninth Circuit

The Ninth Circuit Court of Appeals has temporarily blocked enforcement of the City of Seattle’s Ordinance 124968, which grants certain collective bargaining rights to independent contractors who drive for ride-sharing companies like Uber.  

The Ordinance, which was effective in January 2016, allows eligible drivers to collectively bargain with the companies that contract with them. Legal challenges against the Ordinance were expected. 

The dispute has an extended procedural history. Soon after Teamsters Local 117 sought to represent certain drivers in collective bargaining, the U.S. Chamber of Commerce, and Chamber of Commerce members Uber Technologies, Inc. and Lyft, Inc. (collectively, the “Chamber”), sought to enjoin enforcement of the Ordinance in federal district court on the grounds that it is preempted by the National Labor Relations Act and otherwise violated federal anti-trust laws. The district court, recognizing the “novel” issues raised by the Ordinance and the Chamber’s challenge, preliminarily blocked enforcement of the Ordinance, finding the public would be “well-served by maintaining the status quo while the issues are given careful judicial consideration.” Thereafter, the court changed course and granted the City’s motion to dismiss, ruling the Ordinance was lawful and enforceable. Nonetheless, the court decided to keep in place its preliminary injunction, pending resolution of a “companion case” similarly challenging the Ordinance. 

Later, the district court denied the Chamber’s motion to keep the preliminary injunction in place until resolution of its appeal, finding the Chamber had failed to state a claim with respect to its challenges against the Ordinance, which demonstrated, it said, that the Chamber similarly failed to establish a “likelihood of success on the merits,” a necessary factor in seeking injunctive relief.  

The Chamber’s “emergency motion for injunctive relief pending appeal” was granted “temporarily” by the Ninth Circuit to give that court an “opportunity to consider the emergency motion.” A ruling is expected after September 7. 

In addition to the significant impact this case will have on ride-sharing operations in Seattle, this case will provide a roadmap for other states and localities that wish to regulate collective bargaining rights of their local ride-sharing operations, in addition to a broader range of services provided by independent contractors who otherwise are unable to collectively bargain under the protections of the National Labor Relations Act. 

This case is far from over, and, given the extensive impact the ruling will have, it may require the Supreme Court’s final word.

 

NLRB Finds Sports Team’s Electronic-Content Workers Employees Eligible To Unionize

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.

Bills in Congress Would Short-Cut ‘Quickie Election Rule,’ ‘Micro-Unit’ Reversals

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.

At the top of the “wish list for reversal” are the Board’s joint employer decision, its “quickie-election” rules, and its endorsement of “micro-units.”

Those doctrines, opponents argue, allow labor unions to ignore the wishes of union dissenters and gerrymander groups of employees who most support unionization to maximize the chances of unionization. Because shorter communications campaigns by employers reduce employers’ opportunity to effective communicate their “union-free” message to employees, unions win more often when elections are quicker.

At least some Republicans in Congress are not willing to wait for the Board to rule on appropriate test cases to reverse course.

The “Workforce Democracy and Fairness Act,” H.R. 2776, was introduced by Rep. Tim Walberg (R-Mich.) on June 6, 2017, and received prompt attention from the House Committee on Education and the Workforce. Ten other Republican Representatives have signed on as co-sponsors, and Sen. Lamar Alexander (R-Tenn) has introduced a virtually identical bill in the Senate (S. 1350).

H.R. 2776 would undo many key aspects of the “quickie election” rules, including:

  1. Requiring any pre-election hearing be held at least 14 days after the filing of a petition (instead of the average 8-10 days before a hearing under the current rules);
  2. Requiring all relevant and material issues that may moot or impact the election are resolved prior to the holding of the election. (Under current rules, most issues cannot be litigated until after the election); and
  3. Ensuring that an election is not held sooner than 35 days after the filing of a petition. (Elections are currently held in about 23 days, and sometimes as quick as 11 days, after petition is filed).

H.R. 2776 also would change how the Board analyzes a petitioned-for bargaining unit:

  1. The Board must determine “the” appropriate unit (rather than evaluate whether a proposed unit is “an” [one of possibly two or more] appropriate unit);
  2. The bargaining unit must include all employees with a “sufficient” community of interest, according to eight factors, and the burden is on the requesting party to demonstrate that certain employees should be excluded based on having sufficiently distinct interests; and
  3. Accretions (additions to an existing bargaining unit) must have an “overwhelming” community of interest before they are added.

While unions may “campaign” long before a petition is filed, and may directly ask employees whether they support unionization (which is illegal for employers to do), employers benefit from a longer campaign period to explain its message and perspective on unionization. By emphasizing the importance of inclusion of employees in the bargaining unit, the proposals would prevent unions from carving out dissenters based on slight differences in their particular work, conditions, or environment.

One way or another, expect to see significant changes in the NLRB’s jurisprudence.

Missouri Labor Unions One Step Closer to Overturning State’s Right-to-Work Law

After an expansive campaign that reportedly has cost millions of dollars, Missouri AFL-CIO President Mike Louis claims to have more than enough signatures to put Missouri’s recently enacted “right-to-work” law to a vote next year.

By successfully getting this issue on the ballot, labor unions have effectively stayed the right-to-work law’s impending August 28, 2017 effective date for more than a year, and put the future of the law in question. The referendum asks whether the people wish to adopt the right-to-work legislation (or reject it with a “no” vote). Union activists delivered the signatures to the Secretary of State on August 18.

Labor supporters also are pursuing a constitutional amendment initiative that would provide employees a constitutional right to negotiate and collectively bargain.

Labor Law Lessons from Our Favorite Films: Dirty Dancing (Weingarten Rights – Nobody Puts Weingarten In The Corner)

As noted in our previous post about Dirty Dancing, as part of its investigation into thefts of guests’ property, the resort owner interviewed staff dance instructor, Johnny Castle (Johnny denies involvement in the burglaries), to determine whether he had an alibi for the evening when Moe Pressman’s wallet was stolen. We now know that Castle responded that he was in his room reading all evening. The resort owner’s grandson, Neil Kellerman, found this explanation implausible as there were no books in Castle’s room. However, the movie may have ended differently if Johnny had availed himself of rights afforded to him by the Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 251, 257 (1975), and its progeny.

For purposes of this analysis, assume that: (1) Johnny was a member of a union (he said his uncle was able to secure him an apprenticeship with a painting union); and (2) Weingarten rights existed in 1963 (as noted above, Weingarten was decided in 1975).

The Law

In Weingarten, the Supreme Court held an employee who reasonably believes an investigatory interview will result in disciplinary action against him or her has the right, upon request, to be accompanied at that interview by a union representative, usually a co-worker/steward. See Weingarten, 420 U.S. at 257. The Weingarten right does not prevent an employer from opting not to proceed with the interview and instead simply taking disciplinary action without hearing the employee’s explanation.

The Application

Clearly, Johnny’s explanation that he was reading in his room on the night in question, at best, was dubious and, in reality, false. In fact, Johnny’s lackluster explanation was the prime motivation behind the resort’s decision to terminate his employment (which arguably sets in motion the chain of events that puts Baby in a corner).

In an alternate scene, however, Johnny triggers his Weingarten rights by requesting that a representative be present when he is interviewed by Neil Kellerman. In response, Kellerman’s decides not to conduct an interview and simply takes disciplinary action without hearing Johnny’s explanations. Accordingly, based exclusively on Moe Pressman’s wife’s false account of the incident, Johnny is summarily terminated and escorted off the property. Baby never has the opportunity to tell  the resort’s owner that Johnny was innocent because she was with Johnny the entire night the wallet was stolen. Instead of a final scene where Johnny utters “Nobody puts Baby in the corner..,”  the movie fast-forwards to a regional office of the National Labor Relations Board where Johnny is seen filing an unfair labor practice charge based upon the events described in last week’s post.

Not the perfect Hollywood ending.

Labor Law Lessons from Our Favorite Films: Dirty Dancing

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.

Thirty years ago, the romantic drama, Dirty Dancing premiered. The plot centers around the relationship between Baby (Frances) Housman (coincidentally, named after the first female Secretary of Labor) and Johnny Castle, a staff dance instructor, during the summer of 1963 at Kellerman’s, a fictitious Catskills resort.

When brazen thieves start stealing money and jewelry from guests all across the Catskills, one of the resort’s guests who had a previous relationship with Johnny reports Johnny as a burglary culprit to Kellerman’s management in retaliation.

Johnny denies involvement in the burglaries (more on Weingarten rights in a later post) and Baby even pleads to the resort’s owner to consider an elderly couple as possible suspects. When that fails, Baby provides a critical alibi for Johnny (that she was with him on the night of the burglary). Johnny is terminated anyway.

However, in a critical plot twist, Baby was right — the elderly couple were the culprits. However, Johnny delivers bittersweet news:

Frances “Baby” Houseman: They fired you anyway because of me!

Johnny Castle: And if I leave quietly, I’ll get my summer bonus.

Labor law questions/lessons:

Did Kellerman’s violate the NLRA by keeping Johnny from engaging in protected concerted activity under the NLRA by threatening to withdraw a benefit (his summer bonus) in exchange for his silence? Johnny could argue that he reasonably feared he would face reprisal if he shared his concerns with his coworkers about how Kellerman’s addressed false accusations. In defense, Kellerman’s could assert that Johnny’s scenario amounts to nothing more than his individualized gripe (i.e., his discipline does not involve other employees) and does not qualify as concerted activity. Kellerman’s also could defend by arguing that at the time he was told to keep quiet, he already had been terminated, and thus, was no longer an employee under the NLRA. However, Section 2(3) of the NLRA defines “employee” to include those who have been terminated as a result of an unfair labor practice. Under the current state of the law, the National Labor Relations Board likely would side with Johnny on that issue.

Kellerman’s is not out of options in defending against Johnny’s claim, however. Under the Wright Line theory (the case is from 1980, but we need to suspend reality just a little bit here), Kellerman’s would not be liable if it could show it would have terminated Johnny regardless of whether he engaged in protected concerted activity. Here, Kellerman’s could argue that romantic relationships between staff and guests are prohibited. Of course, Johnny would have the opportunity to rebut that explanation as pretextual, perhaps by showing that other staff members engaged in similar activity, but were not disciplined.

Under a pro-employee, Kennedy-era NLRB, odds would be on Johnny in this dispute. However, under the soon-to-be newly composed Trump-era NLRB, the odds certainly shift in Kellerman’s favor. Stay tuned — Johnny (and his union) may have other unfair labor practices for us to consider in the coming weeks.

Breaking News: NLRB Chairman Miscimarra Declines Second Term

Reportedly citing personal reasons, National Labor Relations Board Chairman Philip Miscimarra has declined consideration for a second term on the Board. Miscimarra’s term expires on December 16, 2017, and the Board is facing a slashed budget.

Miscimarra, seen as pro-business, has become known for his numerous strong dissents in opposition to labor-friendly decisions by the Obama Board.

During the past several years, business leaders have been stung by Board decisions that, among other things, have dramatically expanded the scope of the joint employer doctrine and found a host of common work rules unlawful.

Miscimarra repeatedly has written scathing dissents to those pro-labor rulings. Many Board observers have predicted that those dissents will provide a framework which President Donald Trump’s Board may follow to overturn many of those Obama-era decisions.

The NLRB currently has two vacancies, although one of Trump’s two nominees – both Republicans — has been confirmed by the Senate, while the other awaits hearing in the United States Senate.  That nominee, William Emanuel ,also is expected to be confirmed, giving the Board a 3-2 Republican majority until December, when Miscimarra’s term ends.  It is expected that Trump will nominate a Republican to fill that seat as well.

 

 

 

 

 

 

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