In an interesting turn foreshadowing a coming change in its leadership, the National Labor Relations Board (NLRB) has withdrawn the rule it proposed in September 2019 to exclude student workers at private colleges and universities from coverage under the National Labor Relations Act (NLRA). The proposed rule would have excluded students whose studies included working as teaching or research assistants at private higher education institutions from the definition of “employees” under the NLRA.

“Employees” under the NLRA have protected rights to unionize and engage in collective bargaining. The proposed rule would have categorically excluded student workers from these protections.

The NLRB has repeatedly shifted its position on the status of student workers. However, since 2016, the Board has held that an employment relationship can exist under the NLRA between a private college or university and its employee, even when the employee is simultaneously a student. Columbia University, 364 NLRB No. 90. The proposed rule would have reversed Columbia University and, as a rule, would have placed the non-employee status of student workers beyond the reach of NLRB case decisions. With the withdrawal of the proposed rule, Columbia University will remain controlling precedent.

Further, following the expiration of NLRB Member William Emanuel’s term in August 2021, President Joe Biden will have the authority to establish a new (presumably Democratic) majority of the NLRB. Perhaps in light of that, the Board “decided to withdraw this rulemaking proceeding … to focus its time and resources on the adjudication of cases currently in progress.”

For more details on the Board’s action, see our article published by Jackson Lewis’ Higher Education Industry Team, or contact our attorneys in the Labor Relations Group or Higher Education Industry Team about the NLRA and its application to student workers.

With President Biden charting a fundamentally different course in labor relations, employers should monitor developments taking place. In less than three weeks, Washington saw President Biden’s firing of National Labor Relations Board (“NLRB”) General Counsel Peter Robb, removal of Robb’s Deputy General Counsel Alice Stock, and appointment of Peter Sung Ohr as acting General Counsel (seen as a step to creating a more union-friendly NLRB). Mr. Ohr promptly announced rescission of 10 individual policy directives issued by his predecessor.

On February 4, 2021, Congressional Democrats followed these actions by introducing  the Protecting the Right to Organize Act of 2021 (“PRO Act”), which is almost identical to a similar bill passed by the House last March. The 2021 version of the PRO Act retains many of the controversial and far reaching amendments to the National Labor Relations Act (“NLRA”).

Among the proposed amendments:

  • Joint Employer. The bill restores the controversial joint employer test set forth by the NLRB 2015 Browning-Ferris decision (362 NLRB 1599). Browning-Ferris expanded employer liability by broadly interpreting joint employer status to include situations involving “direct and indirect control” including “reserved authority” in contracts and conduct. The Trump NLRB reversed Browning-Ferris, codifying its decision in a formal rule (NLRB Rules & Regulations §103.40), which the PRO Act would nullify.
  • Adoption of the Independent Contractor “ABC” Test. Despite widespread criticism of California’s strict “ABC” test – which significantly expands the likelihood of independent contractors being deemed “employees” – the PRO Act incorporates the test into the NLRA. Under the Act, an individual would be classified as an “employee” unless: “(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact; (B) the service is performed outside the usual course of the business of the employer; and (C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”
  • Supervisory Status. The PRO Act would also expand coverage of the NLRA by changing the definition of “supervisor” under the NLRA, requiring putative supervisors to engage in supervisory duties for a “majority” of their time. The bill removes supervisory authority to assign work and direct employees responsibly as indicia of supervisory status.
  • NLRB Election Rule Rollback. The proposed law codifies the NLRB’s previous “micro-unit” rule (Specialty Healthcare, 357 NLRB 934 (2011)), statutorily establish “quickie” elections, allows the union to decide if the election will be manual or by mail ballot, among other far-reaching changes.
  • Preempt State “Right to Work” Laws. Although 27 states have adopted a “right to work” statute, the PRO Act pre-empts right to work laws by permitting contract terms requiring all employees to pay to the union fees for the cost of representation, collective bargaining, contract enforcement, and “related” expenditures.
  • Bar class action waivers in arbitration agreements. The bill would also bar class action arbitration waivers in mandatory arbitration agreements despite the Supreme Court’s ruling approving such clauses. See 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 (May 21, 2018).The Supreme Court ruled arbitration agreements providing for individualized proceedings as enforceable and are not barred under the NLRA. Subsequently, the NLRB broadly construed the Epic Systems cases, confirming that an employer may lawfully issue a new or revised mandatory arbitration agreement containing a class- and collective-action waiver specifying that employment disputes are to be resolved by individualized arbitration, even if it was in response to employees opting into a collective action (such as a wage lawsuit). See Cordúa Restaurants, Inc., 368 NLRB No. 43 (Aug. 14, 2019). The NLRB also concluded that the NLRA does not prohibit an employer from threatening to discharge an employee who refuses to sign such an agreement.
  • Compulsory Interest Arbitration. The Act mandates immediate collective bargaining for 90 days and, if no agreement is reached, requires binding interest arbitration of contract terms, thus directing an arbitrator to determine the terms of a two-year collective bargaining agreement.
  • Work Stoppages. The PRO Act bans employer lockouts and the permanent replacement of strikers while allowing intermittent strikes.
  • Enhanced Unfair Labor Practice Remedies. The bill allows “unfair labor practice” (ULP) claims to be brought as civil actions in court. It also adds fines and liquidated damages (into the six figures) as remedies for UPL, including imposing personal liability on corporate directors and officers

 

The Pro Act poses numerous challenges for most employers, including some unionized employers. Its progress is bound to be a major political event. For more information on the bill, contact your Jackson Lewis attorney.

 

New National Labor Relations Board (NLRB or Board) Acting General Counsel Peter Sung Ohr has wasted no time. In a February 1, 2021, Memorandum, Ohr announced rescission of 10 individual policy directives issued by Peter Robb. President Joe Biden terminated Robb as NLRB General Counsel shortly after his inauguration.

Why this is important?

NLRB General Counsels use policy memoranda to instruct Board investigators and lawyers how to process certain cases, set enforcement priorities, and prepare cases to shape the Board’s position on critical labor law interpretations.

New General Counsel, New Direction

In the memorandum, Ohr rolled back Robb’s directives because they were 1) “inconsistent” with the Board’s goal of encouraging collective bargaining and protecting workers’ rights under the Act or 2) “no longer necessary.” Among the notable memoranda rescinded are:

  • Robb’s comprehensive direction for analysis of employer policies that could affect employee rights under the National Labor Relations Act following the Board’s decision in Boeing Co., 365 NLRB No. 154 (2017), which was much-lauded by employers. Ohr said the rescinded memorandum was not necessary as the NLRB has issued sufficient decisions providing guidance. Some speculate that this may be an encouragement to bring cases to the Board for possible reversal of Boeing.
  • A memorandum directing regions to bring cases to the Board involving “neutrality agreements” in which an employer allows organizing activities or negotiates terms of a collective bargaining agreement before the union is lawfully recognized. GC Robb’s intent was to encourage the Board to lower the threshold for finding unlawful support of the union.
  • Several directives that placed more stringent burdens on unions, including:
    • A memorandum requiring unions raising a “mere negligence” defense to a duty of fair representation charge to show they maintained  reasonable procedures to track grievances, and classifying a  failure to respond to a grievant’s inquiries as unlawful arbitrary conduct;
    • Guidance requiring regions to bring cases to the Board urging an easing the burden of proof on employees bringing cases alleging a violation of the union’s duty of fair representation;
    • A directive instructing Board regions to promote cases that would require unions to provide detailed explanations of membership dues and other obligations in fee objector cases.
  • A memorandum that placed additional limitations on how Board investigators may utilize audio recordings and other evidence.

At the end of his memorandum, Ohr noted he would issue future memorandum setting new policies “in the near future.” Ohr’s swift action signals a change in the agency’s strategy and priorities, which, albeit abrupt here, typically occurs during a transition to a new administration of a different political party.

Jackson Lewis attorneys are available to answer inquiries regarding this and other workplace developments.

 

The National Labor Relations Board (NLRB) has established standards for its regional directors to weigh in on whether a representation election in which COVID-19 is a concern should be conducted by mail ballot or in-person (manual) ballot. Aspirus Keweenaw, 370 NLRB No. 45 (2020).

Chairman John F. Ring and Members Marvin E. Kaplan and William J. Emanuel joined in the majority decision. Member Lauren McFerran wrote a separate concurring opinion.

Although NLRB policy strongly favors in-person elections, during the pandemic, approximately 90% of NLRB representation elections conducted since March have been ordered by regional directors to be conducted by mail, according to the NLRB. For more on this issue, see our article, Plan Ahead, Employers: NLRB Ordering Mail Ballot Elections Because of COVID-19 Pandemic. (When those orders have been appealed to the NLRB, the NLRB has approved the decisions because of the risks associated with the pandemic.)

In Aspirus Keweenaw, the employer, located in Wisconsin, requested a manual ballot election. The Regional Director directed a mail ballot election “based on the extraordinary circumstances presented by the COVID-19 pandemic.” On appeal, the NLRB set forth six situations associated with the pandemic, and noted that, when one or more exists, a mail ballot election normally is more appropriate.

Employers have long disfavored mail ballot elections for a number of reasons, including that voter participation is lower than in connection with a manual ballot election. (Conventional wisdom is that higher voter participation favors the employer.) In Aspirus Keweenaw, the NLRB noted statistics that support employers’ participation concerns. Between October 1, 2019, and March 14, 2020, the NLRB had conducted 508 manual ballot elections, in which 85.2% of eligible voters cast a ballot and that, during the same time period, 48 mail ballot elections had been conducted in which only 55% of eligible voters cast a ballot. The NLRB further noted that, from March 15, 2020, through September 30, 2020, the NLRB conducted 46 manual ballot elections, in which 92.1% of eligible voters cast a ballot and 432 mail ballot elections in which only 72.4% of eligible voters cast a ballot.

The NLRB outlined the following six circumstances, which are to be applied retroactively:

  1. The NLRB office that will conduct the election is operating under “mandatory telework” status.
  2. Either the 14-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing, or the 14-day testing positivity rate in the county where the facility is located is 5 percent or higher.
  3. The proposed manual election site (almost always the employer’s facility) cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size.
  4. The employer fails or refuses to “unequivocally” commit to abide by the protocols contained in GC Memorandum 20-10. For more on those protocols, see our blog, NLRB General Counsel Issues Guidelines for In-Person Elections During COVID-19 Pandemic.
  5. There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status.
  6. Other similarly compelling circumstances.

The NLRB remanded the case to the Regional Director to reconsider her decision applying the guidelines in Aspirus Keweenaw.

The National Labor Relations Board (NLRB) has asked for the parties and amici to submit briefs answering four questions in a case involving a union’s display of a large inflatable rat, commonly called “Scabby the Rat,” and two large banners on public property near the entrance of a neutral employer’s site. International Union of Operating Engineers, Local Union No. 150 (Lippert Components, Inc.), 370 NLRB No. 40 (Oct. 27, 2020). NLRB Chairman John F. Ring and Members Marvin E. Kaplan and William J. Emanuel joined in issuing the “Notice and Invitation to File Briefs.” Member Lauren McFerran wrote a dissent.

The Notice and Invitation to File Briefs requests answers to the following questions:

  1. Should the NLRB adhere to, modify, or overrule existing precedent?
  2. If the NLRB should modify or overrule existing precedent regarding what conduct constitutes proscribed picketing under National Labor Relations Act (NLRA) Section 8(b)(4), what should that standard be?
  3. If the NLRB should modify or overrule existing precedent regarding its standard for determining what non-picketing conduct is otherwise unlawfully coercive under Section 8(b)(4), what should the standard be?
  4. Why would finding that the conduct at issue in the case violated the NLRA under any proposed standard not result in a violation of the union’s rights under the First Amendment to the United States Constitution?

Unions have displayed large (10-feet high or more) Scabby the Rats alongside large banners on public property as part of numerous “secondary” protests aimed at businesses doing business with employers with whom the unions have labor disputes. The unions’ goals have been to pressure the secondary employers to cease doing business with the primary employers to pressure the primary employer to (for example) change its labor relations practices. In general, secondary picketing or other actions are illegal under the NLRA; primary actions are not.

Under existing precedent, such displays outside neutral employers’ facilities, even when accompanied by requests that the public not patronize the neutral employer, have been determined to be lawful under the NLRA. The NLRB has decided the stationary banners or a 16-foot inflatable rat did not constitute unlawful “secondary” picketing or otherwise coercive secondary conduct that did not directly disrupt or threaten to disrupt the neutral employer’s operations. Eliasson & Knuth, 355 NLRB 797 2010); Brendan Regional Medical Center, 356 NLRB 1290 (2011). These precedents could be overruled based on the answers the NLRB receives to its questions.

Briefs by amici may not exceed 25 pages and must be filed with the NLRB in Washington, D.C., on or before December 28, 2020.

Please contact a Jackson Lewis attorney with any questions about this case, filing a brief, or the NLRB.

 

The National Labor Relations Board (NLRB) upheld an administrative law judge’s (ALJ) ruling directing that an unfair labor practice trial be conducted by videoconference because of the COVID-19 pandemic. William Beaumont Hospital, 370 NLRB No. 9 (Aug. 13, 2020). This decision may have broad effect even after COVID-19 concerns have passed.

In-person testimony has been the standard for NLRB proceedings. In the past, in relatively rare instances, the NLRB has permitted remote testimony in representation case (cases involving elections) hearings, but telephone or video testimony in an unfair labor practice trial (one in which it is alleged a party violated the [National Labor Relations Act (NLRA)] has been infrequent (although NLRB rules permit it under “compelling circumstances”).

Representation case hearings are considered by the NLRB to be non-adversarial – for the purpose of “fact-gathering.” On the other hand, unfair labor practice trials require a careful assessment of conflicting evidence and testimony by the ALJ. It often is said the NLRB does not make “credibility resolutions” in representation case hearings, while assessing witness credibility is essential in an unfair labor practice trial. Viewing testimony in-person best allows the judge to observe witnesses’ demeanor, as well as anything within view of the witness, including counsel and the parties.

In today’s pandemic era, representation case hearings are routinely conducted remotely. However, the concerns over video unfair labor practice trials remain. Prior to a trial recently scheduled to be heard by videoconference, an employer requested a delay to allow an in-person proceeding. The employer cited an NLRB rule providing parties have “the right to appear at a hearing in person, by counsel, or by other representative.” Further, the company cited a litany of concerns arising from the use of video, involving credibility, technological issues, sharing and reviewing evidence, difficulties in cross-examination, and more.

The ALJ denied the request and the employer appealed to the NLRB, which upheld the ALJ.

In William Beaumont, the NLRB held that, although COVID-19 concerns were somewhat reduced, it is within the ALJ’s discretion to rule that the pandemic still amounted to “compelling circumstances” allowing use of video. Further, the ALJ did not abuse his discretion by not delaying the trial, because, at this time, the delay could be “indefinite.” Finally, the NLRB held that the employer’s concerns were speculative – and that each issue could be addressed at trial, before the ALJ, or by post-decision appeals. Significantly, the NLRB held the “right to appear” cited by the employer merely means “the right to appear at a hearing at all, not the right to be physically present.”

This decision likely will be cited to support videoconference unfair labor practice trials for the duration of the COVID-19 pandemic. However, the decision’s broad reading of ALJs’ discretion may augur greater use of video trials, even post-pandemic.

Please contact a Jackson Lewis attorney with any questions.

 

The National Labor Relations Board (NLRB) has ruled that Browning-Ferris Industries is not a joint employer of employees of one of its contractors. Browning-Ferris Industries of California, Inc., 369 NLRB No. 139 (July 29, 2020) (B-F II).

The NLRB held that the Obama-era NLRB’s 2015 decision that overruled 30 years of NLRB precedent on the standard for determining whether two unrelated employers are the joint employers of one of those employer’s employees [Browning-Ferris Industries of California, Inc., 362 NLRB 1599 (2015) (B-F I)] should not have been applied to Browning-Ferris. The NLRB found “retroactive application … of the new joint-employer standard in this case would be mani­festly unjust.”

Case History

This case has a long and complicated history that began in 2013. In general, in the early stages of B-F I, in connection with a union organizing drive, Browning-Ferris was found to be a joint employer of the employees of a contractor, Leadpoint. The union won the election. Because Browning-Ferris was a joint employer of the employees, the union’s victory meant the company had an obligation to bargain under the National Labor Relations Act (NLRA) with the union. When the joint-employer issue reached the NLRB, it announced the new standard, which was significantly more union-friendly than the old standard. For more on that standard, see Labor Board Sets New Standard for Determining Joint Employer Status.

B-F II was issued in connection with a “test-of-certification” proceeding, whereby an employer (here, Browning-Ferris) that believes the NLRB issued an incorrect decision may refuse to bargain with its employees’ union. Through a circuitous route, the appeal is presented to a U.S. Court of Appeals, which decides whether to enforce the NLRB’s decision. Here, the Court remanded the case to the NLRB to clarify certain issues raised by its new standard. The NLRB then issued B-F II.

Retroactivity

The NLRB maintains a presumption that its new decisions will be applied retroactively. However, the presumption does not apply “where retroactivity will have ill effects that outweigh the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles.” In other words, the NLRB will apply a new rule “to the parties in the case in which the new rule is announced and to parties in other cases pending at the time so long as [retroactivity] does not work a manifest injustice.”

Further, the NLRB explained, with respect to “manifest injustice,” it “typically consid­ers the reliance of the parties on preexisting law, the effect of retroactivity on accomplishment of the purposes of the Act, and any particular injustice arising from retroactive application.”

B-F II

Noting the previous standard had been in effect for at least 30 years and employers had relied upon it, the NLRB decided in B-F II the presumption was “significantly outweighed by its potential ill effects.” The current NLRB decided B-F I should not have been applied retroactively to find that Browning-Ferris was a joint employer of Leadpoint’s employees.

Accordingly, the NLRB amended the election result (Certification of Representative) and removed Browning-Ferris as a joint employer of Leadpoint’s employees.

On a side note, the decision was signed by NLRB Chairman John Ring and Member Marvin Kaplan. Member William Emanuel was a member of the panel, but did not participate in the decision on the merits, the NLRB noted. (Presumably, he participated in discussions about the case with Ring and Kaplan, but left final decision-making to them.) The NLRB did so because, without Member Emanuel as a member of the panel, the NLRB would not have had a quorum (three members) to decide the case. However, Member Emanuel could not participate in the decision on the merits because the NLRB’s Inspector General determined in 2018 that he had a conflict because his former firm represented Leadpoint prior to his becoming an NLRB member.

***

This decision does not affect the NLRB’s joint-employer rule, which was effective on April 28, 2020. That rule “reinstated and clarified the joint-employer standard in place prior to” B-F I. For more on the final rule, see Labor Board Issues Final Rule for Determining Joint-Employer Status.

If you have any questions about this decision or the NLRB, please contact a Jackson Lewis attorney.

The early evidence is in, and the results are clear. National Labor Relations Board (NLRB) Regional Directors decidedly have not embraced the General Counsel’s (GC) guidelines on conducting manual ballot (in-person) elections during the COVID-19 pandemic. Memorandum GC 20-10 “Suggested Manual Election Protocols” (July 6, 2020). For more on the guidelines, see our blog, NLRB General Counsel Issues Guidelines for In-Person Elections During COVID-19 Pandemic.

According to the NLRB’s website, as of July 24, 22 “Decisions and Directions of Election” (DDE) had been issued since July 6, 2020, the date on which the GC’s memo was issued. [There actually appears to be only 21. A hyperlink for the Garda CL Atlantic, Inc. decision takes the reader/researcher to a DDE associated with a different employer – Russell Reid Waste Hauling; the Russell Reid Waste Hauling DDE has a separate entry in the list of regional election decisions.]

Not all of the remaining DDEs listed as of the afternoon of July 24 involved disputes over whether a mail ballot or manual ballot election should take place; however, most did. In almost all of those, the employer cited the GC’s Memorandum in support of the employer’s position that a manual ballot election should take place. Nevertheless, the Regional Directors unanimously directed mail ballot elections. This was the case even where employers committed to implementing all of the General Counsel’s suggested procedures. Russell Reid Waste Hauling & Disposal Service Co., Inc., No. 22-RC-261504 (July 22, 2020). At least one RD even criticized the Memorandum, noting that it “does not provide an enforcement mechanism for any of its suggestions other than canceling an election, which would delay resolution of the question concerning representation.” Transdev Services, Inc., 07-RD-255421 and 07-RC-261835 (July 22, 2020). The NLRB employees union has vigorously objected to the holding of manual ballot elections during the COVID-19 pandemic.

The credibility of Memorandum GC 20-10 also was not boosted by the NLRB’s unpublished decision in Brink’s Global Services, Inc., 29-RC-260969 (July 14, 2020). In that case, the Regional Director directed a mail ballot election. The employer filed a request for review (appeal) of that decision, which the NLRB denied. The NLRB’s less-than-ringing endorsement of the Memorandum held:

“In finding that a mail-ballot election is warranted in this case, we rely on the extraordinary circumstances resulting from the Covid-19 pandemic. The Board will continue to consider whether manual elections should be directed based on the circumstances then prevailing in the region charged with conducting the election, including the applicability to such a determination of the suggested protocols set forth in GC Memorandum 20-10. Under the circumstances present in this case, however, we are satisfied that the Regional Director did not abuse her discretion in ordering a mail-ballot election here.” (Emphasis added.)

It remains to be seen whether Memorandum GC 20-10 affects any Regional Director DDEs during the COVID-19 pandemic.

Please contact a Jackson Lewis attorney if you have any questions.

Continuing its reshaping of its election rules, policies, and procedures, the National Labor Relations Board (NLRB) has proposed two new amendments to the policies and procedures governing its elections. The changes will be published on July 29, 2020, in a Notice of Proposed Rulemaking (NPRM) in the Federal Register.

Under the so-called 2014 “quickie election rules” promulgated by the Obama-era NLRB, employers were required to provide unions that filed petitions to represent their employees available personal email addresses and available home and personal cell phone numbers of eligible voters. (Employers had been required to provide employee names and addresses since 1966.) The proposed rule provides that this requirement be eliminated. The NLRB states that the proposed rule “will advance important employee privacy interests that the current rules do not sufficiently protect.”

Long-standing NLRB policy does not provide for absentee ballots, even for employees who are on military leave. The NLRB proposes to provide absentee ballots for employees on military leave and to create a procedure to do so “without impeding the expeditious resolution of representation elections.”

Public comments must be submitted within 60 days of the NPRM’s publication in the Federal Register. Comments may be submitted electronically at www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001. The NLRB recommends that comments be submitted electronically or by mail rather than by hand delivery because of the COVID-19 pandemic.

Jackson Lewis attorneys are available to discuss the proposed amendments and the comment process, and, if engaged, to provide legal advice to your organization concerning this process.

 

The Senate plans to vote during the last week in July on the nomination of Lauren McFerran to the National Labor Relations Board (NLRB), according to Employment Law360.

Currently, the five-member NLRB has two vacancies. McFerran, a Democrat, served on the NLRB from December 17, 2014, to December 16, 2019.

The three current NLRB members, John Ring, Marvin Kaplan, and William Emanuel, are Republicans. Since December 2019, they have issued several unanimous decisions overturning Obama-era NLRB holdings.

Kaplan’s term is set to expire in August 2020. On June 3, the U.S. Senate Committee on Health, Education, Labor and Pensions voted to advance Kaplan’s renomination and McFerran’s nomination to a full Senate vote.

McFerran’s expected confirmation should have no effect on the NLRB’s dismantling of the Obama-era NLRB’s pro-union decision-making.