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.

 

The National Labor Relations Board Union (NLRBU), which represents the employees of the National Labor Relations Board (NLRB), wants NLRB General Counsel (GC) Peter Robb to rescind his guidelines about how to conduct representation elections in-person during the COVID-19 pandemic.

The alternative is to conduct such elections by mail ballot. Most NLRB elections during the pandemic have been conducted by mail ballot. Employers disfavor mail ballot elections. For more on the GC’s guidelines, see our blog, NLRB General Counsel Issues Guidelines for In-Person Elections During COVID-19 Pandemic.

According to Bloomberg Law, the NLRBU’s objection to the guidelines is contained in a press statement issued by NLRBU President Burt Pearlstone. Pearlstone said the GC’s protocols “will expose NLRB employees to Covid-19, particularly in the many parts of the country that are reeling from record-breaking Covid-19 numbers.”

The NLRB sought input from the NLRBU during the preparation of the guidelines. However, NLRBU representatives said the GC “refused all the significant proposals the union put forth.” The NLRB has disputed that claim.

Conventional wisdom among management labor attorneys is the guidelines likely will not result in any significant increase in in-person voting during the pandemic. The guidelines are not mandatory and NLRB Regional Directors expressly retain discretion about what method of balloting is best in each case. Further, the guidelines are the GC’s; the five-member NLRB retains the ultimate authority to approve them, in whole or in part, and to decide how its elections are to be conducted.

Please contact a Jackson Lewis attorney with any questions.

In an effort increase the use of the in-person or manual ballot method for conducting secret ballot elections, the National Labor Relations Board (NLRB or Board) General Counsel (GC) has issued comprehensive “suggestions” for conducting manual elections safely during the COVID-19 pandemic. Memorandum GC 20-10 “Suggested Manual Election Protocols” (July 6, 2020). These guidelines were developed in collaboration with NLRB Regional Directors (RDs) and others.

The NLRB conducts secret ballot elections among employees to determine whether they desire union representation. The RDs order the elections be held in-person or, where circumstances warrant, by mail balloting. The NLRB prefers manual balloting. Employers also prefer manual voting because it maximizes employee participation and minimizes the possibility of voting improprieties. (For an extensive discussion of manual ballot elections and concerns about mail balloting, see our article, Plan Ahead Employers: NLRB Ordering Mail Ballot Elections Because of COVID-19 Concerns.)

Concerns about conducting in-person elections safely during the COVID-19 pandemic has resulted in RDs ordering mail ballot elections in almost all recent cases. The RDs’ authority to do this is unchanged. The introduction to the protocols observes:

[RDs] will continue to make . . . decisions [about in what manner elections are conducted] on a case-by-case basis, considering numerous variables, including, but not limited to, the safety of Board agents and participants when conducting the election, the size of the proposed bargaining unit, the location of the election, the staff required to operate the election, and the status of pandemic outbreak in the election locality.

NLRB elections must be conducted in strict privacy, out-of-sight and earshot of all supervisors and union officials. The suggested protocols are extensive and add significant burdens on employers, particularly given the six-foot social distancing requirement. These suggestions include (but are not limited to):

  • –           A larger than usual voting area, spacious enough for social distancing between Board agents, voters, observers, and separate tables.
  • –           Plexiglass barriers between voters, agents, and observers.
  • –           Floor markings to enforce distancing and traffic flow, with separate entrances and exits for voters.
  • –           Consistent cleaning of the voting area according to established CDC hygiene and safety standards.
  • –           Inspecting the voting area by videoconference hours before the election.
  • –           Staggering voter releases from their assigned work to avoid overcrowding in the voting area.
  • –           Requiring that employers certify the number of individuals who have been in the facility in the preceding 14 days who have tested positive for COVID-19, or been told to assume they are positive, or are awaiting test results, or have symptoms or been in contact with someone who had tested positive in the previous 14 days. The certification must be provided between 24 and 48 hours before the election.
  • –           Requiring that every non-voter who will be in the voting room (observers, union and employer representatives, and employees witnessing the vote count) certify in advance that they meet the above standards.

RDs have the ultimate authority and discretion to decide how elections will be conducted and are not required to direct manual ballot elections despite the new protocols. Thus, the NLRB can ignore the protocols or establish substitute or additional protocols. The NLRB also may decide that all elections be conducted by mail ballot for the foreseeable future.

Please contact a Jackson Lewis attorney with any questions about this development or the NLRB.

 

 

 

The legal saga of the National Labor Relations Board’s (NLRB) new election rule took another turn on July 1 when a federal judge found the rule was a proper exercise of statutory interpretation.* 

The entire new rule was scheduled to go into effect on May 31, but U.S. District Court Judge Ketanji Brown Jackson issued an 11th hour abbreviated Order on May 30 in a challenge by the AFL-CIO invalidating parts of the rule. The parts that were not invalidated went into effect on May 31.  

The NLRB promulgated the new rule using an expedited method, as opposed to under the Administrative Procedures Act (APA), a time-consuming process that involves providing advance notice to the public and a comment period. The Judge held that the invalidated parts of the new election rule should have been subject to the full APA notice-and-comment procedure, and thus, could not go into effect. 

The Court followed up with a fuller explanation in a Memorandum Opinion on June 7. In her May 30 order, the Judge had addressed only one count of the AFL-CIO’s suit, granting the union summary judgment. There were three other counts, seeking to overturn the entire new rule. The AFL-CIO argued (among other things) that the rule in its entirety was “arbitrary and capricious” – contending that it was not based on reason or facts, but was simply a rejection of the existing procedures. The Judge’s May 30 and June 7 rulings did not involve these other counts because she interpreted the AFL-CIO’s complaint to say that if the Court granted summary judgment on the one count, there was no need for her to rule on the remaining three. 

The AFL-CIO asked the Court to reconsider, saying the Judge had misinterpreted their pleadings, and she should have ruled on all the counts.  

Judge Jackson agreed. On July 1, 2020, she issued an additional decision, granting summary judgment to the NLRB on the remaining three counts. The Judge explained that the Court cannot substitute its judgment for that of the NLRB. However, the NLRB “must show that there are good reasons for the new policy” and not “simply disregard facts” underlying the prior rules “without offering a reasoned explanation.” The Court found the NLRB met this standard. In sum, the NLRB assessed the facts underlying the prior rule, but now considered how the prior election procedures addressed “certainty and finality, uniformity and transparency, [and] fair and accurate voting” in Board elections. These are policy considerations which are properly within the NLRB’s discretion. 

Judge Jackson also rejected the AFL-CIO’s contention that the NLRB had no authority to impound ballots and delay a vote count until any pending reviews of a pre-election ruling were resolved. The Judge said the NLRB’s rule did not contradict the statute, but was a proper exercise of statutory interpretation. 

It is not known if the AFL-CIO plans to appeal. The NLRB has stated it intends to appeal the Court’s May 30th ruling.

 

 

 

National Labor Relations Board (NLRB) General Counsel Peter Robb appears to want NLRB Regional Directors to give more consideration to holding manual, rather than mail, ballot elections than they have during the COVID-19 pandemic.

According to Employment Law360, during a National Employment Law Council webinar, Robb announced he will post on the NLRB’s website his “‘suggested protocols’ for employers and unions to follow before the regional directors who process election petitions will call for in-person votes.’”

Robb said he expects to post the protocols by July 3. He acknowledged that, no matter what his protocols contain, it is up to the NLRB to decide what are “‘sufficient safety measures to run manual elections.’”

During April through June 2020, almost 100% of the NLRB elections conducted have been by mail ballot, even where both the union and the employer wanted a manual ballot election.

Typically, manual ballot elections are conducted on the employer’s premises. In order to vote, employees must be handed a ballot by an NLRB agent who is on the premises to conduct and supervise the election. Regional Directors have uniformly decided that this procedure may subject the agent and employees to the risk of contracting COVID-19. Several of the Regional Directors’ decisions have been appealed to the NLRB. In all cases, the NLRB has decided there was no abuse of discretion in ordering a mail ballot election. For more on manual and mail ballot elections during the pandemic, see our Special Report, Plan Ahead, Employers: NLRB Ordering Mail Ballot Elections Because of COVID-19 Pandemic.

We will monitor developments and provide updates. Please contact a Jackson Lewis attorney if you have any questions.

The National Labor Relations Board (NLRB) has explained the “past practice” analysis it applies in determining whether a unionized employer’s unilateral actions constitute an unlawful change under the NLRB’s decision in Raytheon Network Centric Systems, 365 NLRB No. 161 (2017). ABF Freight System, Inc., 369 NLRB No. 107 (June 19, 2020).

An employer violates the National Labor Relations Act (NLRA), the NLRB explains, “if it makes a material, substantial, and significant change regarding a mandatory subject of bargaining without first providing the union notice and a meaningful opportunity to bargain about the change to agreement or impasse, absent a valid defense.” An employer can defend itself by showing the change was not material, substantial, and significant; that its “actions did not materially vary in kind or degree from the parties’ past practice.”

In ABF, the collective-bargaining agreement between the employer and the union that represented the employees contained the following Article 26:

Section 2. Use of Video Cameras for Discipline and Dis­charge

The Employer shall not install or use video cam­eras in areas of the Employer’s premises that vio­late the employee’s right to privacy such as in bathrooms or places where employees change clothing or provide drug or alcohol testing speci­mens.

The employer previously had installed cameras throughout the facility without objection. However, in 2013, the union objected to the employer installing cameras in the break/locker rooms, and the employer removed them.

In 2017, the employer installed cameras in its break/locker rooms without giving the union an opportunity to bargain. In response, the union filed an unfair labor practice charge alleging the failure to bargain on this violated the NLRA. The NLRB’s General Counsel issued an unfair labor practice complaint. After a trial, an Administrative Law Judge (ALJ), focusing on Article 26, Section 2, decided the employer did not violate the NLRA because it had acted in accordance with an established past practice of installing cameras anywhere on its premises, except personal privacy spaces. (The ALJ decided the break/locker rooms were not personal privacy spaces, despite record evidence showing employees changed clothes there.)

The General Counsel appealed to the NLRB and the NLRB reversed the ALJ’s decision. The ALJ relied primarily on Raytheon, and, to a lesser degree, a subsequent decision, Mike-Sell’s Potato Chip Co., 368 NLRB No. 145 (2019). Those decisions provide:

  • To determine whether there was an established past practice, the Board will compare the challenged action to the employer’s past actions.
  • The party asserting the past practice has the burden of proving employees would reasonably consider the action at issue to be consistent with what it has done in the past.
  • A past practice finding does not depend on the language of a collective-bargaining agreement.
  • Instead, a past practice analysis simply evaluates whether the employer’s action varied in kind and degree from what had been customary in the past.

Applying those principles, the NLRB rejected the ALJ’s reliance on the contract language to make a past practice determination. It found the installation of the cameras in the break/locker rooms was materially different from the employer’s installations in other parts of its facility. The earlier installations focused on the employees’ work on the employer’s dock, whereas the break/locker rooms installations focused on “the recreational and changing areas.” The NLRB concluded that employees would reasonably consider the change departed from the employer’s past practice. (The NLRB also noted the employer’s aborted 2013 attempt to install cameras in the break/locker rooms.)

Raytheon created leeway for unionized employers to make certain changes without offering to bargain with the union. ABF provides a guide for employers to determine what changes are sanctioned by Raytheon.

U.S. District Court Judge Ketanji Brown Jackson of the District of Columbia has issued a detailed memorandum opinion explaining the reasoning behind her May 30, 2020 order granting summary judgment invalidating portions of the National Labor Relations Board’s (NLRB) revised rules for representation case elections. AFL-CIO v. NLRB, No. 20-CV-0675 (June 7, 2020)

The key issue in the case concerned whether the 2019 election rule amendments promulgated by the NLRB were “substantive” rules affecting individuals’ rights or were merely “procedural.” Under the Administrative Procedures Act, a “substantive” rule can be amended only through a time-consuming process of published notice, public comment, and agency review before the new rule can be implemented. “Procedural” rules can be promulgated more efficiently, without the notice-and-comment period.

The new election rule amendments the NLRB hoped to promulgate in full primarily altered certain timelines and enabled resolution of significant issues affecting voter eligibility and unit configuration before employees cast votes (as opposed to after, which is how the 2014 rules handled the issue). The NLRB characterized all amendments as merely procedural changes to promote finality and more efficient resolution in the election process. As such, the NLRB declined to utilize the lengthy notice-and-comment process.

The AFL-CIO asserted that certain portions of the new election rule substantively affected employee rights, and thus were invalid due to the failure to use the notice-and-comment procedure.

Although Judge Jackson acknowledged the legal distinction between “substantive” and “procedural” rules is a “very murky area,” she granted the AFL-CIO summary judgment. The Judge held that sections of the new rule were “substantive,” repeatedly stating (among other things) that the rules could affect the process of unionization.

Having ruled parts of the rule unlawful, the Judge remanded the rule to the NLRB. The Board could have decided to shelve the new rule in its entirety, but it chose to implement those parts not found to be unlawful. For a more detailed review of the sections of the new rule that the Judge found to be unlawful and those that were not invalidated by her ruling, see Despite Court Ruling, NLRB Implements Much of New Election Rule.

The NLRB has stated that it intends to file an appeal with the U.S. Circuit Court of Appeals in Washington, D.C. We will continue to monitor and report on developments.