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.

The National Labor Relation Board (NLRB) has implemented several parts of its new election rule. U.S. District Court Judge Ketanji Brown Jackson enjoined parts of the rule that, in her view, were not lawfully promulgated. AFL-CIO v. NLRB, No. 20-CV-0675 (D. D.C. May 30, 2020). For more on the ruling, see our post, District Court Hits “Pause” on New NLRB Election Rule. The entire rule was scheduled to go into effect on May 31.

The new rule aimed to reform the controversial Obama-era “quickie election” regulations. Among the reforms that the Court decided would not go into effect on May 31 are:

  • Expansion of the right to pre-election litigation of voter inclusion and eligibility issues
  • Increased amount of time prior to an election for communication with employees about election issues
  • Increased amount of time for employers to furnish a list of eligible voters to the union and NLRB Regional Office
  • Limit to who may serve as election observers (only bargaining unit members)
  • Delay of election certification where an appeal is pending

Rather than shelve the entire rule pending an appeal of the Judge’s ruling, the NLRB has implemented the remaining parts of the new rule unaffected by the Judge’s ruling. These include:

  • Scheduling the initial hearing date at least 14 business days (rather than eight calendar days) from the Notice of Hearing
  • Employer posting of the Notice of Petition within five business days (rather than two calendar days) after service of the Notice of Hearing.
  • Filing, by the employer, of the Statement of Position within eight business days (rather than the seven calendar days under the quickie election rule) after service of the Notice of Hearing
  • Establishment of a Statement of Position to be filed by the Petitioner in response to the issues raised in any Statement of Position
  • Allowing the parties to file post-hearing briefs
  • Ballot impoundment procedures when a request for review (appeal) is pending on the date the election is held

Critics say the Court’s Order prevents immediate application of reforms that would enhance employees’ rights to know who is eligible to vote before ballots are cast, allow more time for informed decision-making about union representation, and avoid procedural confusion caused by bargaining unit certifications while appeals of Regional Director rulings are pending.

The new election procedures are complex. Employers that receive election petitions are urged to contact counsel for guidance.

 

The United States District Court for the District of Columbia has blocked several of the provisions of the National Labor Relations Board’s (NLRB) new election rule. Judge Ketanji Brown Jackson court held that those aspects of the new rule were not lawfully promulgated, because the NLRB did not follow the public notice and comment procedure required to be used by federal agencies when promulgating substantive, as opposed to, procedural rules. The rule was slated to go into effect on May 31, 2020. The court wrote:

The Court . . . finds that the challenged portions of the regulation at issue are not procedural rules that are exempted from the notice-and-comment rulemaking requirements of the APA, see 5 U.S.C. § 553(b)(3)(A), and because each of these specific provisions was promulgated without notice-and-comment rulemaking, each one must be held unlawful and set aside, . . .

The court’s decision followed a challenge to the rule filed by the AFL-CIO. The AFL-CIO argued that the NLRB violated the Administrative Procedures Act (“APA”) by publishing its rule without, among other things, following the APA’s notice and comment rulemaking process. (The APA’s process generally takes longer than the procedure used by the NLRB in finalizing its new election rule.) The NLRB has characterized the changes as merely “procedural,” and thus not subject to the more onerous rulemaking process.

At the 11th hour on May 30, the court granted the AFL-CIO summary judgment on its Complaint for Declaratory and Injunctive Relief.  The court issued a brief Order which will be followed “soon” by a memorandum opinion.  In the Order, the court remanded the matter to the NLRB for reconsideration “in light of this Court’s ruling.”

While the court’s interim order does not make entirely clear which sections of the new rule are affected, it appears these aspects are included:

  • Enabling expanded pre-election litigation and resolution of election issues before employees vote
  • Increasing the time to an election
  • Slightly adding to the time for an employer to serve a list of eligible voters upon a petitioner
  • Clarifying the categories of employees eligible to serve as election observers
  • Allowing impoundment of ballots where there is an appeal of election details pending

It is not known whether other parts of the new rule will go into effect as scheduled on May 31 or will be delayed. It also is not known whether the NLRB will appeal or will initiate the full rule-making process.

 

 

The Division of Judges of the National Labor Relations Board (NLRB) has announced it is going to resume holding unfair labor practice hearings beginning on June 1, 2020. The Division had postponed all hearings during May for COVID-19-related reasons.

It appears the NLRB expects to hold most hearings remotely, stating it “has . . . taken the necessary steps to acquire the licenses and equipment needed to conduct such hearings remotely using online videoconferencing technology.”

According to the NLRB’s press release, in order for a hearing to be postponed, a pre-hearing request for postponement will have to be made to the appropriate Deputy Chief Administrative Law Judge (ALJ) or Associate Chief ALJ. The Division of Judges will not take it upon itself to postpone scheduled hearings due to the COVID-19 pandemic.

The parties to the hearing also may request (by motion) or object to a particular type of hearing — videoconference or in-person.

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

 

The National Labor Relations Board (NLRB) has lifted its stay of a mail ballot election ordered by a Regional Director and denied the employer’s Request for Review of the Regional Director’s decision, based on the COVID-19 pandemic, to order a mail, rather than manual, ballot election. Atlas Pacific Engineering Company, 27-RC-258742 (May 8, 2020).

On May 1, 2020, the NLRB had granted the employer’s Emergency Motion to Stay the Election “to allow the Board time to fully consider the issues presented by the Regional Director’s direction of a mail ballot election.” Atlas Pacific Engineering Company, 27-RC-258742 (May 1, 2020). The employer also had filed a Request for Review (appeal) of the Regional Director’s decision.

In its May 8 decision, the NLRB relied on San Diego Gas & Electric, 325 NLRB 1143, 1145 (1998), where it held that, although manual ballot elections normally should be held, “there may be other relevant factors that the Regional Director may consider in making this decision” and that “extraordinary circumstances” could permit a Regional Director to exercise their discretion outside of the guidelines in that decision.

The NLRB once again noted its interest in “addressing the normal criteria for mail balloting in a future appropriate proceeding.” For more on this, see our blog post, NLRB Open to Changing Criteria for Mail Ballot Elections.

The employer was an essential business, so its employees were reporting for work during the COVID-19 pandemic. The employer had laid out a detailed plan for conducting a manual election in a safe manner.

In the NLRB’s view, the Regional Director’s main concern about conducting a manual ballot was NLRB employees’ safety. The NLRB acknowledged that it had “not previously found, under San Diego Gas & Electric, that internal Agency considerations constitute extraordinary circumstances that would warrant conducting a mail-ballot election outside of the guidelines specified therein.” The NLRB appeared to sidestep that issue, and decided that a mail-ballot election was warranted on other grounds:

the extraordinary federal, state, and local government directives that have limited nonessential travel, required the closure of nonessential businesses, and resulted in a determination that the regional office charged with conducting this election should remain on mandatory telework. Mandatory telework in the regional office is based on the Agency’s assessment of current Covid-19 pandemic conditions in the local area. Under all of the foregoing circumstances, we are satisfied that the Regional Director did not abuse her discretion in ordering a mail-ballot election here.

As we noted in our Special Report, Plan Ahead, Employers: NLRB Ordering Mail Ballot Elections Because of COVID-19 Pandemic, employers will have a difficult time convincing Regional Directors that NLRB representation elections during the COVID-19 pandemic should be by manual, rather than mail, balloting. Indeed, a review of the Regional Director Decisions and Directions of Election confirms that. Atlas Pacific Engineering Company appears to ensure that pattern will continue.

Please contact a Jackson Lewis attorney with any questions.

The National Labor Relations Board (NLRB) is beginning to address procedural disruptions arising due to the COVID-19 pandemic. On May 6, 2020, without a request from any party to a case, the NLRB “announce[d] . . . a temporary change in the Board’s standard notice-posting remedy to adapt to the ongoing Coronavirus pandemic.” The temporary change applies to both physical posting and e-distributing of the Notice to Employees in unfair labor practice cases. Danbury Ambulance Service, 368 NLRB No. 69 (May 6, 2020).

As noted by the NLRB, the standard notice-posting provision requires posting copies of the notice within 14 days after the notice is served on the party (union or employer) responsible for posting. That practice has to be temporarily changed because the remedy would be hollow if the individuals to whom the notice is directed (employees or bargaining unit members) are not in the workplace to read the notice.

The Board detailed the changes as follows:

    • For an employer that has closed due to the pandemic or does not have a substantial complement of employees at its facility, elimination from the notice-posting remedy of the requirement that the notice be posted within 14 days after service by the Region.
    • Instead, the notice must be posted within 14 days after the employer that has closed due to the pandemic reopens and a “substantial complement” of employees have returned to work.
    • Any pandemic-related delay in the physical posting of paper notices will also apply to electronic distribution of the notice.
    • These changes do not apply to employers whose facilities remain open and staffed by a substantial complement of employees despite the pandemic.

It appears that this temporary change affects notices arising from settlements and where posting follows litigation of a ULP case.

The Board did not modify existing case law defining what constitutes a “substantial complement” of employees. In general, the Board finds an existing complement of employees substantial and representative when at least 30 percent of the eventual employee complement is employed in 50 percent of the anticipated job classifications – but this may vary. It is anticipated that Board regions will investigate that issue when negotiating settlements and notices. Every case is different; a particularized analysis will be required to make a “substantial complement” determination.

Because a decision to settle an unfair labor practice charge may be affected by the timing of the posting/distribution, it is important that employers consider its potential impact prior to settling.

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

According to an analysis by Bloomberg Law Daily Labor Report, the Teamsters Union lost almost 65,000 members in 2019, the largest decline in the union’s membership in 20 years. The Service Employees International Union (SEIU) added almost 45,000 members.

The analysis was based on a review of recently released annual LM-2 reports filed by unions with the U.S. Department of Labor. (The LM-2 reports contain detailed financial and other information about the union and can be accessed on the DOL’s website. For most unions, the deadline for filing the financial reports is March 30, but the DOL has said the deadline will be extended if a union has a reason related to COVID-19.)

Besides the SEIU, the Laborers International Union, and the American Federation of State, County and Municipal Employees (AFSCME) also added members; whereas the United Food and Commercial Workers Union, the United Steelworkers Union, and the American Federation of Government Employees lost members.

Union representation in the private sector in 2019 was at 6.2%, an all-time low.

Despite these statistics, it is important that employers not ignore the threat of successful union organizing. Union membership may have decreased, but unions are still winning most representation elections at the National Labor Relations Board (NLRB). In 2019, according to NLRB records, unions filed 995 representation petitions and won 745 elections, an enviable 75% winning percentage.

Please contact a Jackson Lewis attorney with any questions.

In an unpublished decision, the National Labor Relations Board (NLRB) has denied an acute- care hospital’s request to stay a representation election based on the COVID-19 pandemic. Crozer-Chester Medical Center, Case 04-RC-257107 (Apr. 23, 2020).

The union’s representation petition was filed on February 28, 2020. The union, which did not represent any of the other employees in the hospital, sought to represent separate units of all unrepresented technical and professional employees employed at the hospital. The hospital argued that only the union that represented the other hospital employees should be permitted to represent the unrepresented employees. After a hearing, the Acting Regional Director for NLRB region four issued a Decision and Direction of Election on March 23 in favor of the union.

In his Decision and Direction of Election, the Acting Regional Director wrote that the details of the election, including the date, would be determined by the regional office “after consultation with the parties.” The union requested a mail ballot election; the employer opposed the union’s request. However, the Acting Regional Director agreed with the union. (NLRB elections were suspended at the time but were reinstated as of the week of April 6.)

On April 7, 2020, the hospital filed an appeal (request for review) of the unit determination and the decision to hold a mail ballot election. In that appeal, the employer also requested the election be stayed pending the NLRB’s decision on the unit determination portion of the appeal. The hospital argued that the COVID-19 pandemic was “an extraordinary circumstance justifying a stay of the election” and that the hospital “expects a huge influx of sick patients in the coming days and weeks.” More specifically, among others, the hospital argued that its operations and human resources personnel should not be focused on an election campaign during a national emergency; that an election would be unfair to the voters, who, as healthcare employees, should not have their attention diverted by an election campaign; and that the hospital should not be deprived of its right under Section 8(c) of the NLRA to effectively express its views to its employees regarding unionization.

The NLRB denied the appeal of the Acting Regional Director’s unit determination and mail ballot election order. It also refused to stay the election. In denying the stay, the NLRB “acknowledge[d] that . . . conducting an election [at an acute-care hospital] during the COVID-19 pandemic raises significant challenges for the employees, the Petitioner, and the employees, as well as for Regional personnel.” Nevertheless, the NLRB denied the appeal based on its “general obligation … to maintain operations to the extent that it is safe and feasible to do so.” The NLRB acknowledged that there might be circumstances justifying the postponement of an election but decided that those circumstances were not present in this case.

Takeaway

Regarding the NLRB’s refusal to stay the election, it appears the decision was the result of the employer’s failure to provide arguments sufficient to convince the NLRB that a postponement was warranted. Although doing so may be difficult, employers should not give up hope — a more specific argument, perhaps supported by statistics, may yield a different result.

 

The National Labor Relations Board (NLRB) has ruled an employer does not have a duty to provide a union with relevant information that contains confidential material if the union has refused the employer’s offer to bargain over ways to protect its legitimate confidentiality interests. Oncor Electric Delivery, LLC, 369 NLRB No. 40 (Mar. 6, 2020).

Historically, the NLRB has ruled that the employer’s confidentiality interest in requested information should be balanced against the union’s need for the information, and that, as a part of this test, the employer must bargain with the union toward an accommodation or compromise that will give the union the information it needs while also serving the employer’s confidentiality interests. Oncor Electric Delivery provides employers some clarity on this balancing principle and shows that, to get the information it wants, the union has to fulfill its responsibility in bargaining over the accommodation.

In Oncor Electric Delivery, the employer, an electricity provider for the Dallas, Texas, area, employed electrical service workers who were represented by the IBEW. The collective bargaining agreement allowed the employer to assign work normally done by employees in the bargaining unit to non-bargaining unit employees, as long as the assignment did not reduce the “regular work hours” of bargaining unit employees. On at least two occasions, the employer assigned storm damage assessment to non-unit employees, resulting in the union filing grievances claiming this violated the contract. The union then filed a number of information requests, including one for copies of all “work orders” for storm evaluation work during a period of about 18 months. The requested information was deemed by the NLRB to be relevant to the union’s role as employee representative.

Significantly, the employer did not refuse to disclose the work orders. Instead, the employer told the union there were about 120,000 work orders and all of them contained confidential customer information that would have to be redacted. The employer estimated it would take about a month to copy and redact the documents at a cost of $16,000. The employer offered to copy and redact the documents if the union paid for it to do so.

For four months, the union did not respond. When it did, the union said it was willing to enter into a confidentiality agreement. The employer asked the union to prepare a draft confidentiality agreement for its consideration. The union did not respond.

Recognizing the employer had a “legitimate and substantial” interest in protecting the confidentiality of the customer information, the NLRB noted the employer’s own confidentiality policies considered the information confidential. In addition, Texas utility law required the employer to keep the customer information confidential. The NLRB ruled the employer did not violate the law — although the union did not receive the requested information — because the employer satisfied all of its legal obligations when it (1) first proposed the redaction at the union’s expense and (2) later said it would consider a confidentiality agreement if the union would draft one for consideration. The NLRB decided the union’s failure to respond to either of these employer responses “shut down” the required bargaining process. The NLRB ruled the union’s failure to obtain the requested information was its own fault for not bargaining over the employer proposals, which were offered to satisfy legitimate confidentiality interests.

Takeaways

  • Employers should review their confidentiality policies to ensure compliance with federal law and are broad enough to encompass all information the employer believes should be kept confidential.
  • Employers also should be aware of state and federal laws that require confidentiality, for example, such as those dealing with employee medical records.
  • Employers should act consistently with any claims that information is confidential.
  • When a union makes a request for such confidential information and it is relevant to an ongoing dispute, to a mandatory subject of bargaining, or to an argument made by the employer in negotiations, the employer should not simply refuse to provide the information. Instead, identify its confidentiality interest, propose reasonable arrangements, and express a willingness to discuss them.

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

A union’s dues check off authorization card that unduly restricted an employee’s right to resign union membership violates Section 8(b)(1)(A) of the National Labor Relations Act (NLRA), the National Labor Relations Board’s (NLRB) Division of Advice has decided. Laborers’ Local 980 (Tutor-Perini Corp.), No. 05-CB-229670 (issued July 29, 2019, released Apr. 10, 2020).

The Division of Advice has instructed NLRB Region 5 to issue a complaint against the union. A part of the NLRB’s Office of the General Counsel, the Division of Advice provides guidance to the NLRB’s regional offices on difficult and novel issues arising in the processing of unfair labor practice charges.

Section 8(b)(1)(A) of the NLRA provides that a union commits an unfair labor practice if it “restrain[s] or coerce[s] employees in the exercise” of their Section 7 rights, which includes refraining from joining or assisting unions. In Pattern Makers’ League v. NLRB, 473 U.S. 95 (1985), the U.S. Supreme Court upheld the NLRB’s interpretation of 8(b)(1)(A) as prohibiting union internal rules restricting a member’s right to resign.

Laborer’s Local 980 arose in Virginia, a right-to-work state prohibiting union security agreements between employers and unions that compel employees to join a union. The union’s authorization card said that an employee could revoke the dues check off authorization only during a short window period (beginning 20 days before each anniversary of the collective bargaining agreement and ending 10 days before each anniversary of the collective bargaining agreement). Moreover, the authorization card said, “For the effective period of this checkoff authorization … I hereby waive any right I may have to resign my union membership.” Thus, the card effectively waived the employee’s right to resign in perpetuity, subject only to the short window periods.

An employee filed an unfair labor practice charge against the union alleging violation of Section 8(b)(1)(A) by maintaining the provision.

As the Division of Advice noted, resigning union membership and revoking a dues check off authorization are different. Employees may want to resign union membership and free themselves of the obligations it imposes (such as compliance with the union’s constitution and bylaws or be fined), while still wanting to continue financial support of the union.

Section 302(c)(4) of the NLRA permits check off authorizations that are irrevocable for one year. That section, as interpreted by the NLRB, allows a union to impose window period requirements at the end of that one-year period and to reject revocation outside of those window periods. This statutory latitude permitting waiver does not apply to other Section 7 rights, such as resigning union membership. The Division of Advice said:

In short, the Union cannot bootstrap the resignation waiver into its dues checkoff authorization, and thereby make resignation subject to the checkoff’s revocation window period, without violating the voluntariness principle regarding union membership.

Therefore, it concluded, “[T]he Union violated Section 8(b)(1)(A) by maintaining the [authorization] provision because it unlawfully requires unit employees to agree to an undue restriction on their right to resign union membership, and imposes the restriction when they may only want to waive their distinct right to cease dues check off.”

Takeaway

This decision is significant to unionized and non-union employers. For unionized employers, the union may use the cards to restrain employees who wish to work during a strike from resigning membership to avoid union fines. For non-union employers, the union may attempt to obtain similar cards during a union campaign, thus coercing employees into believing they must support the union.

Please contact a Jackson Lewis attorney with questions about this or other NLRB questions.