In two decisions issued on April 16, the National Labor Relations Board (NLRB) indicated its interest in reviewing two long-standing NLRB principles: mail ballot election procedures and employee interview safeguards.

In Western Wall Systems, LLC, Case 28-RC-247464 (Apr. 16, 2020), the NLRB stated that it is “open to addressing the criteria for mail balloting in a future appropriate proceeding.” In Kauai Veterans Express Co., 369 NLRB No. 59 (Apr. 16, 2020), the NLRB noted that it “would be willing to reconsider Johnnie’s Poultry” [146 NLRB 770 (1964)], in which it established standards for employers when interviewing employees.

For the NLRB to consider either or both of these principles, cases involving them must be presented to the NLRB in accordance with the agency’s procedural rules. If that happens, the NLRB is expected to establish more employer-friendly rules governing both.

Please watch this space for writeups on both cases.

 

The National Labor Relations Board (NLRB) continues to relax restrictions on rules requiring confidentiality of ongoing workplace investigations. Securitas Security Services USA, 369 NLRB No. 57 (Apr. 14, 2020).

Section 7 of the National Labor Relations Act (NLRA) protects employees’ rights to discuss workplace issues. This protection includes employee discussion of discipline, discrimination, harassment, and many other topics that are properly the subjects of workplace investigations that employers want to be kept confidential for obvious reasons.

In 2015, the NLRB issued a decision severely limiting work rules that mandate confidentiality of ongoing workplace investigations. In Banner Estrella Medical Center, 362 NLRB 1108, the NLRB held that investigation confidentiality rules would be lawful only if the employer could show a particularized legitimate, substantial business justification that outweighed employee Section 7 rights. Meeting this subjective standard proved difficult for employers.

The current NLRB has relaxed this strict standard. Overruling Banner Estrella Medical Center, the NLRB has held that investigative confi­dentiality rules are lawful Category 1 rules under The Boeing Company, 365 NLRB No. 154 (2017), where, by their terms, the rules apply for the duration of any investi­gation. Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019).

In Apogee Retail, the NLRB also provided that, where a rule does not, on its face, apply for the duration of any investigation, a determination is made whether one or more legitimate justifications exist for requiring confidentiality even after an investigation is over. If legitimate justifications exist, a determination is made whether those justifications outweigh the effect of requiring post-investigation confidentiality in employees’ exercise of their Section 7 rights.

The NLRB applied Apogee Retail in Securitas Security Services USA. The employer was charged with violating the NLRA by directing an individual employee to not discuss an internal investigation. Based on all of the facts, the NLRB decided that restriction was only for the duration of the investigation. The NLRB relied upon emails between the employee and a human resources manager, one of which said that “employees are barred from talking during the time of the investigation in any circumstance.”

Securitas and Apogee do have limitations that employers should understand. As noted in Securitas, employees still have Section 7 rights to discuss workplace issues that may be relevant to an investigation, and even the events at issue in the investigation. However, they may be restricted from discussing information they learned or provided during the course of the investigation.

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

 

 

 

With COVID-19 causing most states to require their citizens to stay at home, employers face a challenge: what to do about their backlog of arbitration cases?

For some cases, it may not matter when they are heard and decided. However, for others, such as those involving the potential for a backpay award, a sooner-than-later case resolution may be in the employer’s best interest. Further, waiting until after the stay-at-home orders are lifted may result in multiple arbitrations drawing employers away from running their businesses.

Enter virtual arbitrations. Offered by the American Arbitration Association (AAA) and the Federal Mediation and Conciliation Service (FMCS) in one form or another, they present the real potential for moving cases forward now. Of course, “it takes two to tango,” so the union generally has to agree with handling the arbitration virtually. In addition, the arbitrator must be comfortable with presiding over a virtual arbitration, which may require facility with programs such as Zoom or, possibly, WebEx. Fortunately, there are companies that are ready, willing, and able to provide their expertise.

Video hearings significantly decrease, or eliminate, travel costs, and provide greater flexibility in the timing and location of hearings. At the same time, conducting arbitrations by video conference may hamper the representatives’ and arbitrator’s ability to observe body language in connection with making credibility determinations, and can make reliance on multiple documents or exhibits cumbersome. Further, by limiting a participant’s view of the proceedings to what is seen on camera, video hearings also challenge policing of inappropriate off-camera conduct or witness coaching.

Regarding it takes two to tango, on April 1, 2020, the National Academy of Arbitrators (NAA) issued Opinion No. 26 responding to whether an arbitrator may order that a matter proceed by video hearing over another party’s objection, without violating the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes of the National Academy of Arbitrators.

Referencing the “fundamental importance” of parties’ “mutual consent” in agreeing to arbitrate, the NAA recognized that its position in Opinion No. 26 “concerns a possible exception” to that principle.

The NAA found that there could be circumstances where the need to “provide a fair and adequate hearing” and to “provide effective services to the parties” allows an arbitrator, “in exceptional circumstances,” to “order that a matter proceed by way of video hearing in whole or in part without mutual consent and over the objection of a party.”

The NAA also opined that where, “for example, a global pandemic makes it virtually impossible for an in-person hearing to be safely conducted, that factor may weigh in favor of the video hearing option, particularly if the hearing has been postponed previously, a party in opposition is non-responsive or declines to provide a reasonable explanation, and/or the case involves continuing liability or time sensitive matters.”

In making the decision whether to order a matter to proceed by video hearing, the NAA advised arbitrators to consider whether “the circumstances are so compelling as to override the usual presumption in favor of consensual scheduling practices.”

The NAA also cautioned that the arbitrator should be confident that they, as well as the parties, are familiar with the video hearing platform being used.

Virtual hearings are likely here to stay and there are good reasons for employers to investigate using them. While the NAA mentioned the current “context of the world-wide COVID-19 pandemic of 2019-20,” its opinion was not limited to that context. Instead, the NAA opinion “may have broader application in other circumstances.” The FMCS, which conducts labor-management arbitration hearings, reportedly lists more than 150 “video-capable” arbitrators, and now provides the parties an option to request a panel consisting only of those arbitrators.

Jackson Lewis attorneys are available to help assist with your company’s arbitration questions and proceedings.

The National Labor Relations Board (NLRB) has postponed until July 31, 2020, the effective date of its final rule modifying three aspects of its election procedures: its blocking charge policy, the voluntary recognition bar doctrine, and its rule regarding National Labor Relations Act (NLRA) Section 9(a) recognition in the construction industry.

According to the NLRB, the 60-day postponement is due to “the ongoing national emergency caused by the coronavirus ….” For more on the amendments read our blog, NLRB Issues Final Rule Changing Three Election Procedures.

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

 

 

The National Labor Relations Board (NLRB) has issued a Final Rule modifying three aspects of its election procedures: its blocking charge policy, the voluntary recognition bar doctrine, and its rule regarding National Labor Relations Act (NLRA) Section 9(a) recognition in the construction industry.

The NLRB issued a Notice of Proposed Rulemaking on August 12, 2019, and received approximately 80 comments from the public. The Final Rule was published April 1, 2020 and will be effective beginning May 30, 2020 (60 days after publication). The final rule contains some minor differences from the proposed rule.

Blocking Charge Policy

A “blocking charge” is an unfair labor practice charge alleging unlawful conduct which, if true, might interfere with employees’ ability to make a free and uncoerced choice of representative.

Currently, the NLRB suspends processing of an NLRB representation petition if a “blocking charge” is filed by the union that filed the representation petition. That means the election or results of the election can be delayed for months or years.

In refining the blocking charge policy, the NLRB noted in its Final Rule that, among other criticisms, “the potential for abuse and manipulation of that policy by incumbent unions seeking to avoid a challenge to their representative status.” The NLRB agreed with comments it received on the proposed rule “that the blocking-charge policy impedes, rather than protects, employee free choice.”

In its place, the NLRB will implement a “vote-and-impound” procedure, whereby petitions will continue to be processed, and elections held on the scheduled date. If the ULP charge is not resolved prior to the election, the ballots would be cast, but impounded until the ULP charge is resolved or withdrawn, or until 60 days pass without a ULP complaint issuing. (In general, a ULP complaint will issue when a determination is made, after the ULP charge is investigated, that there is reasonable cause to believe the ULP charge allegations.)

Voluntary Recognition Bar

The NLRA permits an employer to voluntarily recognize a union that has the support of the majority of the employer’s employees (instead of having been selected by a majority of the employees voting in an NLRB representation election). The NLRB’s “voluntary recognition bar” policy requires employees to wait a “reasonable period of time” (at least six months) after the date of the parties’ first bargaining session and no more than one year after that date before seeking to oust a union that had been voluntarily recognized as their bargaining representative.

Under the NLRB’s Final Rule, employees will have 45 days following an employer’s notice of voluntary recognition of a union in which to file a petition for an election to determine whether a majority of the employees wish to be represented could be filed and processed.

The new rule overrules the NLRB’s decision in Lamons Gasket Co., 357 NLRB 739 (2011), and reinstates its similar test set forth in Dana Corp., 351 NLRB 434 (2007).

The NLRB also decided that the employer and/or the union has to notify the NLRB that recognition has been granted and that the notice has to be posted in conspicuous places and has to be distributed to unit employees electronically if that is how the employer customarily communicates with its employees.

Section 9(a) Recognition in Construction Industry

Under Section 8(f) of the NLRA, an employer primarily engaged in the construction industry may enter into a collective bargaining relationship with a union without receiving proof of employees’ desire to unionize. As a result, that bargaining relationship cannot bar a petition for an NLRB election. Employees or other unions may file an election petition at any time during an 8(f) relationship. Further, either party to an 8(f) contract may terminate the collective bargaining relationship upon contract expiration. By contrast, in Section 9(a) relationships unions enjoy an ongoing presumption of majority support, even following contract expiration.

Under the NLRB Final Rule, and “[i]n the interest of restoring protection of employee free choice in the construction industry,” contract language claiming majority employee support creating (9)(a) recognition alone will no longer be able to convert an 8(f) relationship to a 9(a) relationship. Instead, “positive evidence of majority union employee support” will be required. The Rule overrules Staunton Fuel & Material, 335 NLRB 717 (2001), which held that parties’ contract language may be sufficient to prove and establish a binding 9(a) bargaining relationship.

Jackson Lewis attorneys are available to answer any questions.

 

 

The National Labor Relations Board (NLRB) has announced that it will resume conducting representation elections on April 6, 2020.

On March 19, 2020, because of the coronavirus (COVID-19) pandemic, the NLRB had ordered the temporary suspension of Board-conducted elections through April 3, 2020.

In the announcement, NLRB Chairman John F. Ring remarked that the NLRB’s General Counsel had advised the NLRB “that appropriate measures are available to permit elections to resume in a safe and effective manner ….”  Chairman Ring did not offer any specifics, noting that the manner of conducting elections safely and effectively “will be determined by the NLRB’s Regional Directors.”

 

Peter B. Robb, the General Counsel (GC) of the National Labor Relations Board (NLRB) has issued a Memorandum setting forth summaries of NLRB decisions about unionized employers’ duty to bargain in emergency situations. Memorandum GC 20-04 “Case Summaries Pertaining to the Duty to Bargain in Emergency Situations” (March 27, 2020). The Memorandum was issued in light of the many issues that have arisen about the rights and obligations of employers and labor organizations because of the coronavirus. According to the GC, those issues have arisen “in light of responsive measures taken by employers to contain the virus. Sometimes these measures have been taken out of prudence; other times they have been required by state, local or federal orders.”

Acknowledging that the virus presents “an unprecedented situation,” the Memorandum does not provide advice to unionized employers and unions. Instead, it is an attempt by the GC to educate them about NLRB decisions “in which the Board considered the duty to bargain during emergencies” that may be relevant to action they intend to take. The decisions involve both public emergencies and emergencies unique to a particular employer. The Memorandum covers only cases involving the duty to bargain. It does not deal with other NLRA issues that may arise in emergency situations.

The cases cited by the GC involved layoffs and/or facility closures arising out of, among other things, a flu prevention policy, weather emergencies, a sudden reduction in the employer’s business volume, materials (logs) shortages, and a credit line discontinuance. The decisions underscore that, in order to avoid a bargaining obligation, the employer must demonstrate that “economic exigencies compel[led] prompt action.” Bottom Line Enterprises, 302 NLRB 373, 374 (1991) and that the exception is limited to “extraordinary events which are an unforeseen occurrence, having a major economic effect requiring the company to take immediate action” RBE Electronics of S.D., 320 NLRB 80, 81 (1995). In some of the included decisions, even where the NLRB decided that the failure to bargain was lawful, it also found the employer had violated the law by not offering to bargain over the effects of the decision.

Other possible defenses to the duty to bargain may exist that are beyond the scope of the GC’s Memorandum. Please contact a Jackson Lewis attorney with any questions about those defenses, the Memorandum or any other NLRB issues.

The National Labor Relations Board (NLRB) has delayed implementation of its new representation case rules to June 1, 2020. (For more on the new rule, which was supposed to be effective on April 16, 2020, see Labor Board: Upcoming New Election Rule Relieves Employers of Many Burdens of Quickie Election Rule.)

The NLRB previously announced suspension of all representation elections, including mail ballot elections, through April 3, 2020. The NLRB could extend the suspension if necessary.

The NLRB’s 45-day delay, contained in its Notice of Extension of the Effective Date of Defendant National Labor Relations Board’s Representation-Case Procedures Rule, was in response to a March 18 request by Judge Ketanji Brown Jackson (of the U.S. District Court for the District of Columbia), who is hearing a lawsuit filed by the AFL-CIO to block the new rule.

Jackson Lewis attorneys are available to advise clients on National Labor Relations Act compliance and strategy.

 

 

Considering the COVID-19 pandemic, the National Labor Relations Board (NLRB) has announced the suspension of all representation elections, including mail ballot elections, through April 3, 2020. The NLRB could extend the suspension if necessary.

The NLRB indicated the health and safety of its employees, as well as members of the public involved in the election process, necessitated this significant action.

It also reasoned that several Regional Offices have closed, and thus, it is not “possible to effectively conduct elections at this time.”

The suspension of representation elections is the NLRB’s most recent step to handle the effects of COVID-19 within the agency. The NLRB directed agency-wide telework on March 16, 2020, and has closed five Regional Offices – two on March 10 and three others on March 15 – due to possible COVID-19 exposure.

The NLRB has not told employers the dates on which their postponed elections will be rescheduled. It is likely (but not required) the local regional office will contact the parties seeking to reschedule to a mutually agreeable date. However, if the parties cannot agree, the regional director has the discretion to reschedule the date unilaterally.

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

Pursuant to a controversial new rule passed by the U.S. Department of Labor (DOL), “Labor Organization Annual Financial Reports for Trusts in Which a Labor Organization Is Interested,” unions must disclose how certain union-controlled trusts spend and invest their funds.

The rule requires unions with revenue in excess of $250,000 to file annual reports (Form T-1), disclosing “assets, liabilities, receipts and disbursements” of training and strike funds and other trusts whose board members they appoint or whose funds they mostly contribute.

The rule will take effect on April 5, 2020, but unions’ obligations to file will not begin until after the end of their first fiscal year following the rule’s effective date.

The T-1 requires disclosure of loans made to officers or employees, details about disbursements, and the identification of people receiving more than $10,000 from the trust.

The rule is part of the DOL’s continuing effort to foster the reporting requirements of the Labor-Management Reporting and Disclosure Act. The rule does not apply to certain trusts, including political action committees or other political organizations that already disclose their spending; credit unions; and retirement funds falling under the Employee Retirement Income Security Act (ERISA).

The DOL has indicated that the rule is designed to provide union members and others with information relating to trust funds that unions historically have used for a variety of purposes, such as to fund apprenticeship programs, strike funds, redevelopment or investment groups, training funds, building funds, and educational funds. Proponents of the rule believe it will increase financial transparency and expose potential union corruption, including union leader self-dealing. Opponents have expressed skepticism of government intervention in private affairs.

For employers, the rule may result in unsuccessful union organizing when corrupt practices by a union are exposed. (Employers can use the information the rule will make available to educate employees on the facts regarding the risks associated with union representation.) For employees, the rule provides union members with the opportunity to inspect union finances, and thus, make a more informed decision about who they want as their union leaders.

Please contact a Jackson Lewis attorney with questions about this or other labor and collective bargaining issues.