President to Nominate Republican Attorneys to Fill Labor Board Vacancies

Attorneys Marvin Kaplan and William Emanuel will be nominated by President Donald J. Trump to fill the two openings on the five-member National Labor Relations Board, according to the Daily Labor Report. Trump plans to nominate Kaplan and Emanuel by June, following completion of their FBI background checks.

If Kaplan and Emanuel are confirmed, the Board will have a 3-2 Republican majority. Emanuel is a labor attorney and Kaplan is counsel to the Commissioner of the Occupational Safety and Health Review Commission. For more, see Short List of Possible Trump NLRB Candidates Reported.

Following Senate confirmation of the new Board members, expect the Board to revisit and, perhaps, reverse its Obama-era rulings on class action waivers, joint employer, temporary workers, quickie elections, expansion of protected concerted activity (e.g., its impact on workplace policies), definition of appropriate bargaining units, the  status of college/university faculty and student athletes, among others.

In Fastest Elections, Union Victory Rate Soars

Unions fare better in the quickest elections under the National Labor Relations Board’s April 2015 “quickie” election rules, according to a Bloomberg BNA report. Unions have continued to win elections about 67 percent of the time overall since the implementation of the rules, according to the report. However, two years after the rules went into effect, in the fastest elections (i.e., those with less than two weeks between petition and the vote), the union “win rate” jumps to a staggering 82 percent.

The NLRB’s amendments to its election procedures have significantly reduced the average time between the filing of a representation petition by a union and the date of the election, from 39 days to 24 days, according to the report.

While advocates for management and labor disagree as to the intent and overall effect of the rules, the data makes clear unions fare better when employers have less time to discuss the possible effects of unionization with their employees. As the average time between petition and election falls, it is more important than ever for employers to educate supervisors about their rights and responsibilities in the event of a union organizing attempt and to create an environment where employees feel well-treated and therefore see no need for union representation.

 

 

 

NLRB Won’t Create Rule Extending to Nonunion Workers Right to Have Union Rep at Disciplinary Interview

The National Labor Relations Board has decided not to exercise its discretionary authority to engage in rulemaking at this time to reverse the Board’s decision in IBM Corp., 341 NLRB 1288 (2004), and extend Weingarten rights to nonunion employees. In Weingarten, the Supreme Court held that an employee has a right to re­quest the attendance of a union representative in any in­terview that he or she “reasonably fears may result in his discipline.”

The issue was before the Board as a result of a request by NLRB attorney Charles S. Strickler, Jr.

The Board’s action does not foreclose the possibility that it will reverse IBM Corp. if an appropriate case is presented to it.

Spending Bill Leaves NLRB Budget Unchanged From 2016, Nixes Electronic Voting

The National Labor Relations Board’s wish that its budget for fiscal year 2017 be increased over its FY 2016 budget apparently will not be granted.

According to Politico, at $274.2 million, Congress has left the NLRB’s budget unchanged from FY 2016. This is despite NLRB General Counsel Richard Griffin’s view, stated in a March 10, 2017, Memorandum to management personnel in the NLRB’s regional offices, that “years” of “flat fund[ing]” has had a “detrimental effect on the public.” Memorandum GC 17-02.

The NLRB had sought additional funding to “efficiently and effectively” process “comprehensive and complex cases” such as “nationwide efforts to improve the wages … of retail and fast food workers,” “expanded use of mandatory arbitration clauses in employment” agreements, and the expanded use of technology and social media by employees to discuss employment outside the workplace, among other things.

The spending bill also prohibits the NLRB from spending any money on issuing “any new administrative directive or regulation that would provide employees any means of voting through any electronic means in an election to determine a representative for the purposes of collective bargaining.”

Solicitor General Reviewing Government’s Position in Class Action Waivers Cases

Last week, the Supreme Court extended the deadline for initial briefs from April 28, 2017 to June 9, 2017 in three consolidated cases raising the issue whether arbitration agreements between individual employees and their employers that bar the employees from pursuing work-related claims on a collective or class basis are lawful under the National Labor Relations Act. Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP, et al. v. Morris, et al., No. 16-300; National Labor Relations Board v. Murphy Oil USA, Inc., et al., No. 16-307. The Court granted the extension pursuant to a request by the Acting Solicitor General of the United States.

Raising the possibility the government may decide to change its position on whether such agreements are unlawful, in his request, the Acting Solicitor General wrote, “[T]he current briefing schedule is no longer adequate for the government [because] . . . [t]he Acting Solicitor General is engaged in a process of reviewing the position of the United States in these cases” and that he “must . . . consult with new leadership within the government.”

Senate Approves Acosta To Head DOL

Alexander Acosta was confirmed on Thursday to serve as President Donald J. Trump’s Secretary of Labor.  Acosta was approved by a vote of 60-38, according to Employment Law360.

Acosta has held several government positions, having been an NLRB Member, head of the Department of Justice’s Civil Rights Division, and United States Attorney in South Florida.  Most recently, he has been dean of Florida International University Law School for the past eight years.

NLRB Ruling on Joint Employers Should be Reversed, Congressional Republicans Urge

Two years after the National Labor Relations Board’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), which overturned 30 years of precedent, 57 members of Congress, mostly Republicans, supported by business owner advocacy group Workforce Fairness Institute, are urging the Subcommittee on Labor, HHS & Education Committee on Appropriations “to include a one-year hold on the NLRB’s harmful and confusing definition of joint employers [in Browning-Ferris] in the FY18 Labor, Health and Human Services, Education, and Related Agencies Appropriations legislation.” In a letter dated April 5, 2017, to the subcommittee Chairman and Ranking Member, the 57 legislators cited a report by the U.S. Chamber of Commerce that warned the decision will result in decreased business values, increased operational and legal costs, less growth, and fewer jobs.

The NLRB had ruled a company could be held liable for the management and actions of workers employed by another employer, even if the company does not directly control those employees. For example, under the Browning-Ferris standard, liability for actions taken by individual franchisees could be imputed to franchisors even if they do not directly supervise or control the franchisee’s employees. Similar liability could be imposed upon contractors in connection with a subcontractor’s employees.

Browning-Ferris has been appealed to the U.S. Court of Appeals for the D.C. Circuit; a decision should be issued during 2017.

A one-year hold on the NLRB joint employers standard likely will require the support of 60 Senators in order to avoid a filibuster, a difficult task in the current Congress. More likely is reversal of Browning-Ferris by a fully constituted NLRB with a 3-2 pro-business majority after the two existing vacancies are filled by President Donald Trump’s nominees.

Jackson Lewis attorneys are available to answer questions about this and other legal developments.

Miscimarra Named NLRB Chairman

The National Labor Relations Board has announced that Republican Philip A. Miscimarra has been named NLRB Chairman by President Donald J. Trump.  Miscimarra had been designated Acting Chairman by President Trump on January 23, 2017. Miscimarra has served as a Board Member since August 7, 2013, and is the sole Republican Member currently serving on the Board.

The Board currently has three Members, including Democrats Mark Gaston Pearce, and Lauren McFerran. Two Board seats are vacant; President Trump is expected to nominate pro-business members to fill them.

NLRB Denies Petitions to Revoke Subpoenas Based on Mere Allegation of Joint Employer Status

The National Labor Relations Board has denied petitions to revoke subpoenas that were issued by an NLRB Regional Director to two companies seeking information about a possible joint employer relationship between the two employers. The subpoenas arose out of the investigation of several unfair labor practice charges filed by a union against the companies, alleging they were joint employers (as well as alter egos and a single employer).

In the unpublished Order, Members Mark Gaston Pearce and Lauren McFerran enforced the subpoenas despite the union’s failure to articulate any facts about the joint employer allegations. RPT Communications LLC, SK Cabling Systems LLC, TekSystems Management, Inc. and Richardson Telecommunications Service, Inc. as Alter Egos/Single Employers and as a Joint Employer and Communications Workers of America, No. 29-CA-182088 (Mar. 16, 2017).

The charges, alleging violations of several sections of the National Labor Relations Act, referred to the employers as alter egos, a single employer, and joint employers, but did not contain any additional information. The NLRB rejected the petitioners’ claim that the subpoenas did not seek information relevant to the matters under investigation. The Board held the subpoenas “lie well within the scope of the Board’s broad investigative authority, which extends not only to the substantive allegations of a charge, but to ‘any matter under investigation or in question’ in the proceeding. . . nothing in Sec. 11 of the Act or Sec. 102.31(b) of the Board’s Rules can be read to impose a requirement that the Regional Director articulate ‘an objective factual basis’ in order to compel the production of information that is necessary to investigate a pending unfair labor practice charge.”

Acting Chairman Phillip A. Miscimarra dissented, writing that a subpoena seeking documents pertaining to an alleged joint-employer or single-employer status of a charged party “requires more . . . than merely stating the name of a possible single or joint employer on the face of the charge.” In particular, the General Counsel must be able to articulate “an objective factual basis supporting such an inquiry.” He found the General Counsel had failed to do so with respect to the possible joint employer and single employer relationship between the petitioners.

Lessons

  • In 2015, the NLRB in Browning-Ferris Industries of California, 362 NLRB No. 186, set a new union-friendly standard for determining joint employer status under the NLRA. Beyond simply broadening the standard for finding two or more employers to be joint employers, Browning-Ferris has emboldened unions to liberally allege that employers are joint employers, and as a result, to require alleged joint employers to comply with burdensome subpoenas seeking information to support that often speculative allegation.
  • There is a substantial possibility that a five-member NLRB, which includes two likely business-friendly members to be appointed by President Donald Trump, will overturn Browning-Ferris. Miscimarra’s dissent also is a window into how a fully-constituted NLRB may rule on similar petitions to revoke in the future. The future Board may refuse to enforce subpoenas where the General Counsel has not articulated an objective factual basis supporting the subpoena’s inquiry.

President Trump has not indicated when he will nominate new Board members, although the names of several possible nominees have become public.

 

 

Unions Winning More Elections, But Organizing Fewer New Workers

Unions won 72% of all representation elections conducted by the National Labor Relations Board in 2016, and 74% when the election involved a small unit of 49 workers or less, according to a Bloomberg BNA report based on NLRB data. These percentages are a four-year high for unions. At the same time, fewer workers were organized — 57,800 (lowest in four years), down from 63,300 new members in 2015.

The number of NLRB-conducted elections also slipped, from 1,626 in 2015 to 1,381 in 2016. Unions also continue to lose members by decertification elections. Between 2012 and 2016, the NLRB conducted 970 decertification elections. Unions lost over 60% (596 of 970) of them.

As the statistics about the number of workers organized and elections held in 2016 suggest, unions are focusing on organizing smaller bargaining units, which generally are easier to organize. As reported by Bloomberg BNA, Maria Sommer, an organizing director with the Steelworkers Union, “credit[s] an approach of focusing on smaller units of workers . . .,” among other factors. This strategy has been made fruitful, in large part, by a union-friendly NLRB decision – Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011) — that endorses union organizing of identifiable “micro-units.” This and the difficulties countering a union organizing drive that are posed by NLRB’s “quickie-election” rules, have created significant challenges for employers.

The Teamsters Union has said it is focusing on “internal organizing” designed to “retain[] employees in bargaining units by communicating and educating them about the benefits . . . [of unionization].” However, that strategy may not be working. Between 2012 and 2016, the Teamsters Union was involved in 231 decertification elections and lost 155 – a 67% loss rate. (On the flip side, the Teamsters were involved in more NLRB-conducted elections in 2016 than any other union and won just under 63% of them.) Overall, unions lost 61.4% of all decertification elections held during that time.

The NLRB’s won-loss statistics do not take into account situations where unions filed petitions for elections at the NLRB, but withdrew before the election, or where unions were unable to garner enough employee support to file petitions at all with the NLRB.

Help may be on the way for employers. There are two vacancies on the NLRB that almost assuredly will be filled by President Donald J. Trump with pro-business members. This will create a 3-2 pro-business NLRB majority, perhaps paving the way for a decision, given the appropriate case, overruling Specialty Healthcare. However, the appointment process will take time, and, even following confirmation, change at the NLRB will not be automatic. This means that, as always, employers should focus on their best defense to union organizing — creating an issue-free workplace where employees feel listened-to and well-treated and see no need for union representation.

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