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Labor & Collective Bargaining

Court Refuses to Restrain New NLRB Election Rules

A federal court in Washington, D.C. has refused to issue a temporary restraining order blocking the National Labor Relations Board’s (“NLRB’s”) new election rules.

On April 15, the day after the new rules went into effect, a union seeking to represent carpenters and laborers working for Baker DC LLC in the Washington, D.C. area filed an election petition with the NLRB. Baker filed a lawsuit to vacate and set aside the rules and asked the District Court to issue a temporary restraining order to halt the representation proceedings. Baker alleged that the NLRB exceeded its statutory authority as well as the Administrative Procedure Act in promulgating the rules. Baker also alleged the new rules, particularly the mandatory posting of a notice upon the receipt of a petition, violated the company’s right to refrain from certain speech and thus violated its due process rights. A few days after the complaint was filed, an amended complaint was filed on behalf of three employees, as well as Baker, alleging that the rules’ new requirement that Baker disclose certain employee personal contact information jeopardized the employees’ privacy rights.

The court refused to restrain the NLRB from proceeding under the new rules. It noted first that the company’s motion addressed only the NLRB’s notice posting requirement and the disclosure of the employee contact information. With respect to both mandates, the court found there was no showing of irreparable harm, an absolute requirement for a temporary restraining order. The court noted that there was nothing in the NLRB rules prohibiting the company from engaging in any speech it desired while the NLRB case proceeded. With respect to the employee contact information, the court noted that not only was the risk to the employees’ privacy merely speculative, but the NLRB’s rules prohibited the union from using the employee information for any purpose other than a representation proceeding. Further, in agreement with the NLRB, the court observed that even if the union prevailed in an election under the new rules, the employer could simply refuse to bargain, forcing the union to file an unfair labor practice charge and enabling Baker to contest in agency complaint proceedings the union’s representative status based on the allegedly flawed election rules, ultimately obtaining judicial review.

This is one of a number of cases challenging the NLRB election rules. The cases in Texas and in Washington, D.C. did not ask for restraining orders and will be decided on the merits of each case. In the meantime, the NLRB “quickie election” rules remain in effect.

Successor Employer Can Add Supervisor Duties to Jobs, NLRB General Counsel Found

The Division of Advice of the National Labor Relations Board’s Office of the General Counsel has determined that a “Burns” successor employer was permitted to add supervisory functions to job duties of the predecessor employer’s union-represented nurses because it timely informed the nurses and the union of its intention to do so. Chestnut Health and Rehabilitation Group d/b/a Blue Hills Health and Rehab., LLC, Case 01-CA-133937 (Mar. 6, 2015).

Under NLRB v. Burns Int’l Sec. Services, Inc., 406 U.S. 272 (1972), an employer is a successor if, in general, it continues the same business as its predecessor in the same manner and if a majority of its represented employees formerly worked for the predecessor. A successor employer is required to recognize and bargain with the union representing its employees, but usually may set its own initial terms and conditions of employment.

The successor employer in Chestnut Health assumed the operations of a nursing facility whose service employees and registered nurses were represented by separate unions. The service employees were hired, their union was recognized, and their collective bargaining agreement was adopted. The successor employer also hired the predecessor employer’s nurses, but told them their job would now include supervisory duties. (Under the successor employer’s business model, nurses independently disciplined and prepared performance reviews affecting pay increases and bonuses.) The successor employer told this to the union and the nurses weeks before employment was to begin, and it declined to recognize the union as the representative of the nurses because they were supervisors who are excluded from National Labor Relations Act coverage.

The nurses did not begin performing supervisory functions immediately. Answering a union inquiry, the employer said the nurses would soon participate in supervisory training. Nonetheless, the union filed an unfair labor practice charge alleging the employer unlawfully failed to recognize and bargain with the union. After conducting training, the employer instructed the nurses to commence performing responsibilities as supervisors.

During its investigation, the NLRB’s Regional Office determined the nurses were supervisors under the NLRA and submitted the case to the Division of Advice on whether to issue a complaint because the employer failed to bargain with the union as a Burns successor.

While the Division of Advice decided the employer was a Burns successor that must recognize the union as the representative of its employees, it also found that the employer may set initial employment terms for the nurses. Here, part of those initial terms included supervisory duties, which resulted in the formerly represented nurses being ineligible to be represented by a union. Thus, a potential successor employer may add supervisor duties to the work of employees of a predecessor employer it intends to hire by clearly and timely (in Chestnut Health, the successor did so in the first communication with the nurses and weeks before employment) informing the union and the employees that such duties will be part of the future employment terms.

Secondarily, the Division noted an exception to an employer’s right to set initial terms and conditions of employment. When it is “perfectly clear” the successor will retain all of the employees and (1) it has not clearly informed employees that it will institute different terms and conditions of employment, or (2) it has mislead employees to believe that there would not be changes, it loses the right to set the initial terms and conditions of employment. Spruce Up Corp., 209 NLRB 194 (1974). Here, the Division found the employer was not a “perfectly clear” successor because it provided clear notice to the employees and the union of the new conditions of employment. Consequently, the successor employer had the right to set the initial terms and conditions of employment of the nurses, including adding supervisory duties to their job.

It is uncertain how long a successor may have the opportunity to set initial terms and conditions. The Division also noted the General Counsel has opined that the Board should reconsider Spruce Up and return to what the General Counsel says is the plain language of the “perfectly clear” caveat in Burns: whenever it is “perfectly clear” that a successor plans to retain the predecessor’s workforce, regardless of what it has communicated to employees, the successor must bargain with the union before setting the initial terms and conditions of employment. If a complaint had issued here, the General Counsel could have litigated that position before the Board. However, employers are forewarned that the General Counsel likely is looking for a vehicle to attack Spruce Up and urge its reconsideration before the Board.

Board Orders Conditional Reinstatement of Undocumented Workers

The National Labor Relations Board has held on remand from a federal appeals court that “conditional reinstatement is an appropriate remedy where an employer knowingly employed individuals who lack authorization to work in the United States and then discharged them in violation of the N[ational] L[abor] R[elations] A[ct].”  Mezonos Maven Bakery, Inc., 362 NLRB No. 41 (Mar. 27, 2015).

Relying on the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Board originally held that back pay to undocumented workers was not an appropriate remedy for the employees’ unlawful termination for engaging in protected concerted activity.  However, the Board did not address the possibility of ordering the workers’conditional reinstatement.  Several of the former Mezonos undocumented workers appealed. While the U.S. Court of Appeals for the Second Circuit in New York affirmed the Board’s conclusion on back pay, it “remanded the case to the Board for consideration of issues relating to petitioners’ request for conditional reinstatement.”  Palma v. NLRB, 723 F.3d 176 (2d Cir. 2013). (Palma was one of five former Mezonos employees who petitioned the court for review.)

In Sure-Tan, Inc. v. NLRB, 467 U.S. 884 (1984), the Supreme Court held that the NLRB could grant a conditional reinstatement remedy for undocumented workers discharged unlawfully under the NLRA, without running afoul of the Immigration and Nationality Act (INA). [INA was later superseded by the Immigration Reform and Control Act of 1986 (IRCA), but the Board subsequently reaffirmed the propriety of conditional reinstatement in cases involving undocumented workers under IRCA. See A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995)].

On remand, the Board granted conditional reinstatement to Palma and his co-petitioners, relying on Sure-Tan. The Board concluded “conditional reinstatement is the only means available to the Board to provide relief to the discriminatees and the principal means of deterring future unfair labor practices,” because a later Supreme Court decision barred it from awarding back pay to undocumented employees. Hoffman Plastics. 

The Board ordered full reinstatement of the discriminatees to their former positions or “substantially equivalent positions, without prejudice to seniority or other rights and privileges,” provided they were able to complete I-9 forms and present the required documentation to the company “within a reasonable time.”  While the Board inferred from an earlier case that holding a position open for a period as long as four (4) years might be a reasonable, it refused to define that phrase.

The Board also refused to provide guidance on whether an employee who presented fraudulent documents in violation of IRCA is eligible for conditional reinstatement.  The answers to these questions will have to await future cases.

Board Attorneys’ ‘Progressive’ View of Union’s Alleged ‘Regressive’ Bargaining Sends Parties Back to Negotiating Table

The National Labor Relations Board’s General Counsel’s Office, Division of Advice, has ordered dismissal of an unfair labor practice charge alleging bad faith “regressive” bargaining by a union. In this case, after the employees rejected decisively the employer’s final offer, the union bargaining team resumed negotiations with new demands and proposed modifications of previously agreed-upon items. Amalgamated Transit Union Local 1433, 28-CB-127045 (Nov. 19, 2014, released Jan. 9, 2015).

The Division determines whether to issue administrative complaints on alleged unfair labor practices referred to it by Board regional offices in selected cases. During negotiations for a new collective bargaining agreement, the parties reached tentative agreement on many issues, but several items were still unresolved when the employer presented its best and final offer. The union negotiators, while not agreeing to the offer, put it to a vote of the employer’s employees. The employees overwhelmingly rejected the offer and voted to authorize a strike, if necessary.

When the parties returned to the bargaining table, the union presented a revised proposal that was more favorable to the employees. Not only did this proposal add new demands to the open issues, but it also modified a number of proposals the parties had agreed upon prior to the employees’ rejection of the final offer. The employer filed an unfair labor practice charge against the union alleging the union had unlawfully bargained regressively when it made new proposals containing increased demands regarding already agreed-upon issues and open proposals.

The Division noted that withdrawal of tentatively agreed-upon contract proposals could demonstrate bad-faith bargaining and substituting prior proposals with less advantageous ones (regressive proposals), could be viewed as unlawful if doing so was intended to frustrate the possibility of agreement. The Division concluded the union’s actions did not constitute bad-faith bargaining and that no complaint should be issued because the union’s actions occurred only after the employees overwhelmingly rejected the employer’s final offer and authorized a strike.

The Division also stated the union’s new demands, many of which addressed specific employee objections to the employer’s final offer, “… were not so ‘harsh, vindictive or otherwise unreasonable’ as to suggest they were offered in bad faith.” The Division further held the new and modified proposals reflected a strengthened bargaining position and thus a legitimate reason existed to seek improved terms the employees and the union could accept, thus, enhancing the possibility of reaching an agreement. Finally, the Division likened the union’s actions to those of an employer which, having weathered a strike, may lawfully return to the bargaining table with changed and more favorable (less conciliatory) contract terms.

This determination may facilitate a union negotiation strategy whereby rejection of an employer’s final offer, coupled with a strike authorization vote, will allow a union to reopen items previously agreed upon and increase its contract demands. The prospect may be particularly appealing where the union believes the employer cannot easily withstand a strike.

NLRB’s “Quickie Election” Rules Effective Today

The National Labor Relations Board’s new “quickie election” rules go into effect today. (Two lawsuits challenging the rules are still pending.)

Read here for more information on the rules and their impact on your organization.

To learn more about the rules and other important NLRB developments, attend Jackson Lewis’ seminar, “Surveying the New Labor Law Landscape: A Rocky Road Ahead,” being held in more than 45 locations across the country. To register, click here.

NLRB Expands Scope of Union Representatives’ Permissible Conduct during Investigatory Interviews under Weingarten

In a 2-to-1 decision, a three-member panel of the National Labor Relations Board has held it was unlawful for an employer to threaten a union steward with suspension for showing an employee, during the employer’s investigative interview about a violation of company procedure, the steward’s answer to a question asked by the interviewer, which was written in the steward’s notebook, so that the employee could read it to the interviewer. The assistance provided by the steward here was consistent with the U.S. Supreme Court’s decision in NLRB v. J. Weingarten, 420 U.S. 251 (1975), the National Labor Relations Board has held. Howard Industries, Inc., 362 NLRB No. 35 (Mar. 23, 2015).

The employer’s HR Generalist was questioning the employee about the violation of procedure when the steward raised a notebook in front of the employee and drew the employee’s attention to a section of the notebook which related to the interviewer’s question. The section contained his transcript of the employee’s statement to the steward in which the employee had asserted he lacked training in the procedure.

As the employee began to read what was written in the notebook, the interviewer directed the steward to close the notebook. The steward refused, stating it was being used “as a tool” to represent the employee. The interviewer then told the steward to “get the notebook out of there before I suspend you.” The steward complied.

The NLRB concluded the employer had violated the NLRA by threatening to suspend the steward. Under Weingarten, a union-represented employee may request the presence of a union representative at an investigatory interview the employee reasonably believes may result in disciplinary action. If a representative participating in the interview is acting within the ambit of Weingarten, providing proper assistance, the representative’s activity is protected under the NLRA. However, the precise role of union representatives in investigatory interviews under Weingarten is not well-defined and has been the subject of several NLRB decisions.

In Howard Industries, the Board majority concluded the steward could use the notebook to “remind[] [the employee] of his lack-of-training defense.”   The NLRB held the steward’s conduct was protected under the NLRA and the interviewer’s threat of suspension was unlawful.

In a dissenting opinion, Member Philip Miscimarra – quoting from the NLRB’s brief in Weingarten – said that while a union representative may provide assistance during an investigatory interview, the employer “is free to insist that he is only interested, at that time, in hearing the employee’s own account of the matter under investigation.” As the steward did not explain the purpose of the notebook, Member Miscimarra said it reasonably appeared to the interviewer that the employee was reading from a script.

While the Board’s decision does not go so far as to permit union representatives to script employee answers during investigatory interviews, employers need to proceed with caution. Interviewers should specifically state that responses should be in the employee’s own words and that a scripted response will not be accepted. Also, if the steward wishes to remind the employee, orally or in writing, of additional facts or explanations, he may do so, but the steward does not have to be permitted to answer the question for the employee. Of course, the employee’s failure to mention a significant defense to his actions until he is prompted by the steward likely will have a negative effect on his credibility in the eyes of the employer.

NLRB’s Renewed Focus On Immigration Issues Affects Complaint Cases

The General Counsel of the National Labor Relations Board has instructed agency regional directors and other officials charged with investigating unfair labor practice charges to consider whether the immigration status of affected employees may affect the Board’s ability to proceed in litigation and fashion effective remedies.

On February 27, 2015, General Counsel Robert F. Griffin, Jr., issued a Memorandum (GC-15-03) providing updated procedures to be applied when immigration status issues may affect NLRB investigations and proceedings. The new procedures require Regions to contact the NLRB’s Division of Operations-Management at any point in the proceedings if they believe that someone’s immigration status may impair the Region’s ability to litigate or remedy a potential unfair labor practice. Operations-Management will assist Regions with possible interagency collaboration, consult on possible remedies, and provide NLRB-wide coordination.

Undocumented workers are “employees” within the meaning of the National Labor Relations Act, and their immigration status is not relevant to an unfair labor practice investigation. Consequently, Regions will not investigate nor determine a worker’s immigration status during such an investigation. However, action taken by an employer to comply with immigration laws may be a defense to an alleged violation of the NLRA and a Region may investigate appropriate facts bearing on the employer’s motivation.

The Memorandum counsels that interagency coordination may be appropriate if immigration status could impact a charge’s investigation or remedy. The potential discriminatee or witness may be eligible for a U or T visa, or deferred action from or assistance by the Departments of Justice or Homeland Security to permit an investigation to continue or for an appropriate remedy to be determined and enforced.

While undocumented workers are not eligible for back pay and reinstatement under the NLRA, the General Counsel urged the Regions to consider alternative remedies such as enhanced notice requirements, training of employees and supervisors regarding employee rights and employer responsibilities under the law, a bargaining order, union access to employee contact information, reimbursement of organizing or bargaining expenses, and other appropriate remedies. Further, Regions are encouraged to seek a Formal Board Settlement, which is a Board Order (and is often accompanied by a federal court judgment) in connection with which the General Counsel can seek judicial relief in the event of non-compliance with the settlement by the employer.

Enhanced remedies in the event of a violation of the NLRA are only one of the negative implications of an inaccurate initial determination. Please consult experienced counsel if you have any questions.

House Joins Senate in Symbolic ‘Disapproval’ of Quickie Election Rule; Presidential Veto All but Certain

The House of Representatives voted 232-186 on March 19th to disapprove the new NLRB election rules slated to go into effect on April 14th. The Senate passed a similar resolution of disapproval on March 4th.

Under the Congressional Review Act, Congress has the authority to “disapprove” (and thus nullify) an agency rule. However, as with any bill passed by Congress, resolutions of disapproval must be signed by the President to be enacted. The President has the authority to veto the resolution.  For more on disapproval resolutions, see our post, “Congress Reviews NLRB Quickie Election Rule.”

Although President Barack Obama has not taken action as of this writing, it is virtually certain that he will veto the measure. Given the almost-party line plurality of the votes in Congress, it appears that that resolution’s proponents would not muster the two-thirds vote necessary to override any veto.

There are two pending court challenges to the Board’s rule, filed by several business groups; one in federal district court in Washington D.C., and the other in federal court for the Western District of Texas. However, neither court has indicated whether hearings will be held or a decision will be issued before the rules become effective.

Thus, it appears the new rules will go into effect as scheduled.

The NLRB is scheduling outreach events for labor practitioners in the weeks prior to the rules’ effective date. We will monitor and report updates as warranted. In addition, Jackson Lewis will be offering a complimentary webinar about the new rules after April 14, as well as in-person seminars across the country on the rules and other recent NLRB developments.

Under What Circumstances Can An Employer Restrict Employees from Using Its Email System? The Answer Will Have to Wait

In Purple Communications, the National Labor Relations Board held that, absent “special circumstances” justifying specific restrictions, federal labor law requires employers to permit employees who have been provided access to their employer’s email system to use that system for union and other protected communications on non-working time. Purple Communications, Inc. 361 NLRB No. 126 (Dec. 11, 2014).

The employer’s rule in Purple Communications did not grant such access explicitly. However, instead of finding the rule violated the National Labor Relations Act, the NLRB remanded the case to its Administrative Law Judge to permit the employer to present evidence of special circumstances justifying the rule’s access restrictions. This set the stage for a decision explaining what the Board meant by “special circumstances.”

After the remand, however, the employer notified the ALJ that it would not contend that special circumstances existed to justify restrictions in its policy. Therefore, the Board likely will issue an Order finding the employer’s policy violated the NLRA; and, more important, the ALJ will not issue a supplemental decision providing insight into the meaning of special circumstances. Additional guidance on what constitutes special circumstances in the email policy context will have to wait until the next email case reaches the Board.

Congressmen Ask NLRB General Counsel to Explain ‘Joint-Employer’ Comments

Three Republican Congressmen – Senators Lamar Alexander (R-Tenn.) and Ron Johnson (R-Wis.), and Representative John Kline (R-Minn.) — have requested National Labor Relations Board General Counsel Richard Griffin to explain joint-employer comments he made at an October 24, 2014 labor conference urging the NLRB to adopt a more liberal joint-employer standard. Griffin has issued several unfair labor practice complaints against a national food chain, stating, “in that area we have a problem, legally, for our theory to hold franchisors as joint-employers.”

In a letter, the legislators complained to Griffin that he “appear[s] to be pursuing joint-employer cases knowing your legal theory is problematic.”  They note that two months after he made his comments, the General Counsel issued several complaints against a national franchisor, claiming it is a joint-employer.

They also asked Griffin to answer a number of questions and to produce several documents:

  1. Did any developments occur in the law between your comments on October 24, 2014, and the filing of complaints on December 19, 2014, that named a franchisor as a joint-employer?
  2. If not, please explain your comments made at the October 24, 2014, labor conference.
  3. Produce all documents and communications between the Office of General Counsel and the Board referring or relating to the joint-employer standard from November 4, 2013, to present.
  4. Produce all documents and communications between the Office of General Counsel and any other federal agency about the joint-employer standard from November 4, 2013, to present.

The authors set a deadline of March 19, 2015, to provide the answers to those questions.

As we have previously written, the Board has before it the case of Browning Ferris Industries, No. 32-RC-109684, in which it solicited briefs from non-parties. Many expect the Board to change its analysis for determining whether two entities are joint-employers, and therefore, are liable for each other’s unlawful conduct under the National Labor Relations Act.

The General Counsel is urging the Board to abandon the current “direct control” joint-employer standard and replace it with a “totality of the circumstances” test. Direct control requires that a putative joint-employer have control over terms and conditions of employment of the subject employees. This includes hiring and firing, setting work hours, determining compensation and benefits, and exercising day-to-day supervision. Instead, the General Counsel has urged that the Board consider an easier standard to meet – one based on whether an alleged joint-employer exercises either direct or indirect control over the subject employees who work for another employer, and to consider even whether the alleged joint-employer has “unexercised potential to control working conditions” of those employees.

We will keep you apprised of additional developments in this important area.