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

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

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

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

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

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

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

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


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

The National Labor Relations Board has found the individuals who produce electronic content for viewing during professional basketball games are employees, rather than independent contractors. Minnesota Timberwolves Basketball, LP, 365 NLRB No. 124 (2017). The Board reversed the decision of an NLRB regional director and reinstated a representation petition filed by the International Alliance of Theatrical Stage Employees.  For more on this development, click here.

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

With the recent confirmation of Marvin Kaplan to the National Labor Relations Board, the Obama (pro-union) Board is officially transitioning into a Trump (pro-business) Board. With that, Republicans hope, will come a change in the Board’s jurisprudence with respect to labor-friendly rulings by the Obama Board.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Law

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

The Application

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

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

Not the perfect Hollywood ending.

Labor Law Lessons from Our Favorite Films: Dirty Dancing

There are films with clear labor law undertones, such as On The Waterfront and Norma Rae. The National Labor Relations Act and its teachings, however, lurk in other pop culture examples.

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

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

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

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

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

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

Labor law questions/lessons:

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

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

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

Breaking News: NLRB Chairman Miscimarra Declines Second Term

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

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

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

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

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







Management Labor Attorney Being Considered for NLRB General Counsel Nomination

Peter B. Robb, a management-side labor law attorney, reportedly is being considered to be the National Labor Relations Board’s next General Counsel. The four-year term for the current NLRB General Counsel, Democrat Richard F. Griffin, Jr., expires this November. Robb previously worked as an NLRB field attorney and as chief counsel to Republican NLRB Member Robert P. Hunter.

When President Donald Trump took office, the NLRB had two Democratic (former Chairman Mark Gaston Pearce and Lauren McFerran) and one Republican (current Chairman Philip Miscimarra) members, and two vacant seats. The Senate has confirmed Republican Marvin Kaplan to one of the two vacant seats, while management labor attorney William Emanuel awaits a confirmation hearing.

If, as expected, Emanuel also is confirmed, Robb’s nomination and confirmation would set the stage for the Board to reverse many of the pro-labor rulings issued by the Obama Board.

Robb has been critical of the Board’s “tenacity to find neutral policies…unlawful,” such as employers’ social media policies and values statements. Robb has also argued that the NLRB’s new “quickie” representation election procedures give unions “a distinct advantage” (for example, by shortening the timeframe in which an employer has to react to a union election petition), and signaled that he would seek to undo the Obama Board’s expansion of the Board’s “joint employer” doctrine. These issues have been a primary focus of Republicans in recent years.

The NLRB General Counsel controls which cases the Board prioritizes and pursues. Robb would be in position to bring appropriate “test cases” to the newly full Board to reverse those Obama-Board decisions that many business owners have argued go too far in favoring unions’ agenda.

Even if Robb is nominated and confirmed as General Counsel, he will not take office until after Griffin’s term expires, in November. After that, it likely will take many months for the appropriate cases to make their way to the NLRB for decision and for changes to be realized.









Senate Confirms Kaplan for Vacant Board Seat, Moving NLRB Closer to Pro-Business Majority

The United States Senate has narrowly confirmed former counsel to the Commissioner of the Occupational Safety and Health Review Commission Marvin Kaplan to one of two vacant seats on the National Labor Relations Board. Kaplan’s confirmations leaves one vacant seat on the five-member Board.

President Donald Trump has nominated management labor lawyer William Emanuel for the other open slot on the NLRB. If Emanuel is confirmed – the Senate HELP Committee approved his nomination on July 19 — Republicans will hold a 3-2 majority on the Board for the first time since 2010. (A vote on his nomination has not been scheduled.) A full Board is expected to reverse many of the pro-labor rulings by the Obama Board, including those 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, and the status of college/university faculty and student athletes, among others.


Missouri Law Prohibits Costly Public Project Labor Agreements

On May 30, 2017, Missouri Governor Eric Greitens signed legislation generally barring public entities from requiring job-specific union contracts called “project labor agreements” on public construction projects.  

The legislation, effective August 28, 2017, prohibits public entities from requiring contractors to enter into project labor agreements and from discriminating against, encouraging, or giving preferential treatment to union contractors, or those voluntarily adhering to union contracts.  

While the Missouri Senate and House were unable to pass legislation repealing the state’s “prevailing wage” law (which requires contractors to pay their employees a minimum amount in wages and benefits on certain publically funded projects, generally calculated based on local union contracts), Senate Bill 182 bars public entities from requiring contractors to become signatories to project-specific labor contracts that specify wages, benefits, and a broad scope of other union terms and conditions.  

Greitens, a Republican political newcomer, campaigned on a business-friendly platform. Greitens signed “right-to-work” legislation just weeks after taking office. Signing Senate Bill 182 is seen as another campaign promise fulfilled.  

At a signing ceremony with Wisconsin Republican Governor Scott Walker, Greitens said that project labor agreements “drive up the cost of construction projects” and, while it is the taxpayers who ultimately pay for these publically funded projects, “in the past, taxpayers got a raw deal.”  

The Missouri Senate and House are considering several bills that would partially or completely repeal the state’s prevailing wage law, but no such bill was able to reach the Governor’s desk. If one does, he is expected to sign it. Missouri legislators have been pushing for the repeal of prevailing wage for years, but the previous governor had vetoed every effort. 

The Governor’s supporters reiterate that these pieces of legislation are necessary to provide a level playing field for all contractors, union and non-union, and that local public entities will save money. Opponents argue that the Governor’s agenda will hurt local workers who risk losing work to “outside,” non-union contractors who can underbid contractors bound to union contracts.  

Senate Bill 182 provides a legal remedy for violations, including the recovery of attorney’s fees and referral to the local prosecuting attorney or circuit attorney for investigation. 

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