Labor Relations Today

Labor Relations Today

Board Rules Casino Violated Act By Barring Former Employee From Socializing In Nightclub

Posted in NLRB Decisions, Uncategorized

The National Labor Relations Board has held that a casino operator violated Section 8(a)(1) of the Act by forbidding a former employee from “socializing” at one of its nightclubs after she joined a Fair Labor Standards Act (FLSA) class action lawsuit.   In MEI-GSR Holdings, LLC dba Grand Sierra Resort & Casino, 365 NLRB No. 76 (May 16, 2017), the Board majority ruled:

[T]he relevant question under Section 8(a)(1) is not whether the Respondent affected Sargent’s wages, hours, or terms and conditions of employment, but whether (in the words of the Act) the Respondent has “interfere[d] with, restrain[ed], or coerce[d] employees in the exercise of the rights guaranteed in section 7.” As explained, the Respondent’s actions, taken in response to Sargent’s protected lawsuit, would have reasonably tended to interfere with employees’ exercise of their statutory rights.

The former employee at issue, Tiffany Sargent, worked for the casino for two weeks.  Following the conclusion of this very brief employment, she continued to hang out at one of the casino’s nightclubs. Approximately eighteen (18) months later, Ms. Sargent and another employee filed a class and collective FLSA action against the casino on behalf of themselves and similarly situated employees. A year after the filing of the suit, the casino began denying her access to the nightclub and expressly referring to the litigation.  The Board held:

The Respondent’s exclusion of Sargent, in response to her participation in protected concerted activity, would reasonably tend to chill employees from exercising their Section 7 rights. Upon observing or learning of this targeted action against the lead plaintiff in the FLSA lawsuit, the Respondent’s employees reasonably would conclude they, too, might be subject to reprisals and reasonably would be deterred from participating in a work-related lawsuit or other protected concerted activity.

Chairman Miscimarra filed a dissent, disagreeing that the ban, to the extent motivated by the pendency of non-NLRA litigation, violated the NLRA.  The dissent argued that there were other employees pursuing the FLSA action who were not similarly banned from the nightclub, and that the employer had many legitimate business interests which would justify its actions.  In sum, the Chairman concluded:

I do not believe that Congress, when enacting the NLRA, intended to guarantee that every former employee would have a right of access to the private property of his or her former employer whenever he or she joined other employees in a non-NLRA lawsuit against that former employer.

President Trump To Name Two Labor Attorneys To Fill National Labor Relations Board Vacancies

Posted in NLRB Administration, Obama Board Reversal, Presidential Appointments, Senate

Bloomberg reports that the Trump Administration plans to name attorneys Marvin Kaplan and William Emanuel to fill the two vacant member seats on the National Labor Relations Board.  According to the report, sources indicate that these two are currently under the routine FBI review process for executive branch nominees, and the administration expects to formally advance the nominations in June.  Per Bloomberg:

The administration hopes to have the new members confirmed by the Senate before the August recess, the sources said. Business lobbyists and other stakeholders have been prodding the White House to fill the seats, a move they say will help to peel back various Obama administration labor initiatives.

Regarding the presumptive nominees, the report notes:

Kaplan is an attorney for the Occupational Safety and Health Review Commission, an independent federal agency that hears cases involving alleged workplace safety violations and adjudicates disputes between the Labor Department and employers. He previously served as the Republican workforce policy counsel for the House Education and the Workforce Committee.

Emanuel is a management-side lawyer at Littler Mendelson, based in Los Angeles. He has worked with a wide range of business clients, including by challenging state laws allowing unions to enter employers’ private property, according to the firm.

Upon nomination and confirmation of these two members, as previously noted here, one should reasonably expect Chairman Miscimarra to pursue a fairly aggressive agenda during the remaining few months of his term to roll back the more extreme and overreaching decisions of the Obama Board.  Likely targets include:

Traditionally, the Board has avoided overturning precedent without three votes in favor, so the seating of a full Board would be critical to pursuit of such an agenda.  It will be interesting to see the extent to which this factors into the speed and substance of this confirmation process.

NLRB Denies Petition to Use Its Rulemaking Power to Extend Weingarten Rights to Nonunion Employees

Posted in NLRA, NLRB, NLRB Rule-Making, Weingarten Rights

On May 3, 2017, the National Labor Relations Board unanimously denied a petition filed by a former NLRB attorney asking the Board to grant nonunion employees the right to have a representative present during investigatory interviews that could reasonably result in discipline. The petition stems from a November 15, 2016 letter by Charles S. Strickler, Jr. requesting that the NLRB use its rulemaking power to reverse the Board’s decision in IBM Corp., 341 NLRB 1288 (2004), and extend Weingarten rights to nonunion employees.

Weingarten rights stem from a Supreme Court decision in which the court held that union-represented employees have the right to a union representative during investigatory interviews. In 2000, a Democratic-controlled Board extended those same rights in a 3-2 decision to non-union employees in Epilepsy Foundation of Northeast OhioIn IBM Corp., a Republican-controlled Board reversed Epilepsy Foundation in another 3-2 decision. Despite expectations that the law would once again change under President Obama, the Board was never presented the issue, and thus IBM Corp. survived President Obama’s administration.

OSHA Rescinds Guidance Allowing Nonunion Employees to Select Union Representatives to Participate in OSHA Inspections

Posted in Department of Labor, Representation Elections, Unions

On April 25, 2017, the Occupational Safety and Health Administration’s Deputy Assistant Secretary released a memo withdrawing a 2013 interpretation that allowed nonunion employees to designate a union representative to participate in an OSHA inspection at their work site.

In 2013, despite OSHA’s own regulations requiring that the employee representative be an actual employee of the employer being inspected, OSHA issued a guidance memorandum stating that “there may be times when the presence of an employee representative who is not employed by that employer will allow a more effective inspection.” Under that interpretation, employees would be permitted to select a union representative to participate in an OSHA inspection despite the fact that that union representative was not an employee.

In withdrawing the 2013 Interpretation, the Deputy Assistant Secretary for OSHA simply stated that the 2013 Interpretation is “unnecessary” given the language of the OSH Act and OSHA’s regulations specifying the limited exception when non-employees are allowed to participate. Thus, although the April 25th memorandum is good news for employers, it does not shut the door entirely to union representatives’ participation in OSHA inspections. If non-union employees can show good cause and demonstrate that the non-employee union representative is “reasonably necessary” to the inspection, OSHA could still allow the union representative to participate. While that should be a tough standard for a union to meet, employers should nevertheless be prepared to counter any such argument that a union representative (or a subject matter expert provided by the union) is necessary.

National Labor Relations Board Says AT&T Privacy Rule Goes Too Far

Posted in NLRA, NLRB Decisions, Unfair Labor Practices, Workplace Rules

Last week a National Labor Relations Board (NLRB) administrative law judge ruled that AT&T Mobility interfered with employees’ labor rights with an overly broad privacy rule. The rule prohibited employees from recording any conversation without approval from the company’s legal department. In AT&T Mobility, LLC, NLRB Case No. 05-CA-178637 (April 25, 2017), the ALJ found that the rule set forth below violated Section 8(a)(1) of the National Labor Relations Act which prohibits employers from interfering with employees’ Section 7 rights:

Privacy of Communications

Employees may not record telephone or other conversations they have with their coworkers, managers or third parties unless such recordings are approved in advance by the Legal Department, required by the needs of the business, and fully comply with the law and any applicable company policy.

The rule was questioned by sales associate, Marcus Davis after he attended a termination notice meeting for another employee and recorded audio of the meeting without management’s prior knowledge. After the meeting, local area sales manager, Andrew Collings, contacted the human resources department for guidance. Collings then instructed the local store manager to retrieve the company owned phone, delete the 20 minute recording and coach Davis on the company policy. Davis challenged the rule and filed an unfair labor practice charge at the NLRB.

In defense of the rule, AT&T argued that the policy was in place to protect the privacy of customer information. The judge found that although AT&T has a pervasive and compelling interest in protecting customer information, when balanced against employees’ Section 7 rights, the rule is overbroad and in violation Section 8(a)(1) of the Act. Specifically, the judge noted that recent NLRB decisions had suggested that “protected conduct may include a number of things including recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions,” and there were narrower ways for the employer to protect its legitimate interests without interfering with these employee rights. The judge also found that the employee was illegally threatened with disciplinary action, possibly termination, if he violated the privacy rule.

Accordingly, AT&T was ordered to rescind the rule and refrain from any action that would limit the exercise of employees’ Section 7 rights. It remains to be seen whether the company will comply now, or contest the decision before the NLRB itself. The order fits into the trend of NLRB decisions the last few years finding against work rules prohibiting photography and other forms of recording in the workplace. It does not entirely prohibit all rules limiting workplace recordings, but does reject broad rules containing a blanket ban on all workplace recordings.

Cross-posted at McGuireWoods’ Password Protected Data Privacy & Security News & Trends blog.

President Trump Names Philip Miscimarra To Serve As National Labor Relations Board Chairman

Posted in NLRB Administration, NLRB Decisions, Presidential Appointments

Following up on his earlier announced intent, President Trump has named Acting Chairman Philip A. Miscimarra to serve as Chairman of the National Labor Relations Board.  Miscimarra has served as Acting Chairman since January 23, 2017, and had served as a Board Member since August 7, 2013. His 2013 nomination was approved unanimously by the Senate HELP Committee, and he was confirmed by the Senate on July 30, 2013.

His current term expires on December 16, 2017. Based on his numerous dissents filed during the previous administration, one might reasonably expect Chairman Miscimarra to pursue a fairly aggressive agenda this year of rolling back the more extreme and overreaching Obama Board decisions. Likely targets include:

Of course, significant obstacles loom in the way of such an agenda — chiefly in the current composition of the Board. There remain on the Board two Democrats, appointed by President Obama, whose terms do not end until 2018 & 2019; and, two vacancies in the traditional Republican seats to be filled by President Trump. There is no current sense that nominations, let alone confirmations, are imminent. Moreover, Democrat appointee Richard Griffin, the former General Counsel for the International Union of Operating Engineers, remains the Board General Counsel until the later of his resignation or expiration of his term in November 2017.

In a Board press release, Miscimarra said of his appointment:

It is a great honor to be named NLRB Chairman by the President…. The Board has the important responsibility of applying the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country. I remain committed to these efforts.

NLRB General Counsel Takes a Stand: College Scholarship Football Players Are Employees Under the NLRA

Posted in Division of Advice, NLRB

In a memorandum issued on January 31, 2017, the National Labor Relations Board’s General Counsel, Richard Griffin, provided a “guide for employers, labor unions, and employees that summarizes Board law regarding NLRA employee status in the university setting and explains how the Office of the General Counsel will apply these representational decisions in the unfair labor practice arena.” As we suspected last Fall, the General Counsel considers “scholarship football players at NCAA Division I Football Bowl Subdivision (“FBS”) private colleges and universities…employees under the NLRA, and therefore…entitled to the protections of Section 7 of the Act.”

Noting that the Board did not reach the question of whether scholarship football players are NLRA employees in its Northwestern decision, the General Counsel stated that:

it is important that [scholarship football players] know whether the Act’s protections extends to them, i.e., whether if they engage in concerted activity for mutual aid and protection, such activity is protected by the NLRA.

Relying upon the Board’s decisions in Boston Medical Center and Columbia University, the General Counsel concluded:

it is clear from the evidentiary record established in Northwestern University that scholarship football players at Northwestern and other Division I FBS private colleges and universities are employees under the NLRA because they perform services for their colleges and the NCAA, subject to their control, in return for compensation.

Because the General Counsel believes that “FBS scholarship football players clearly satisfy the broad Section 2(3) definition of employee and the common-law test,” they “should be protected by Section 7 when they act concertedly to speak out about aspects of their terms and conditions of employment.”

This includes, for example, any actions to: advocate for greater protections against concussive head trauma and unsafe practice methods, reform NCAA rules so that football players can share in the profit derived from their talents, or self-organize, regardless of whether the Board ultimately certifies the bargaining unit.

Although the General Counsel has taken the position that scholarship football players are employees under the Act, the General Counsel’s memo does not have the effect of “law.” Rather, the question of whether scholarship football players are employees under the NLRA is still undecided, and only the members of the NLRB can decide that question. In the meantime, private universities can expect that any unfair labor practice charge asserting that their scholarship football players are employees will be paid special attention by the current General Counsel. That being said, Mr. Griffin’s term as General Counsel ends in November of this year, at which point President Trump will have the opportunity to appoint a new General Counsel.

Confirmation Expected For Secretary of Labor Nominee Following Committee Hearing

Posted in Department of Labor, Presidential Appointments, Senate

Following the withdrawal of previous nominee Andy Puzder, the President quickly named former National Labor Relations Board Member and current law professor Alex Acosta to serve as Secretary of Labor.  On Wednesday, March 22, 2017, the Senate Health, Education, Labor & Pensions (HELP) Committee held a hearing on his nomination.  In commencing the hearing, Committee Chairman, Sen. Lamar Alexander (R-TN) stated:

The issue for workers today is not whether they belong to a union. It is whether they have the skills to adapt to the changing marketplace and to find and keep a job—to be accurate, to create and keep a job.  My generation found jobs.  This generation is more likely to have to create their own jobs.

Acosta, who has been confirmed by the Senate for three previous positions, has been viewed far more favorably by opponents of the administration than the previous nominee.  AFL-CIO President Richard Trumka has said:

Alexander Acosta’s nomination deserves serious consideration. In one day, we’ve gone from a fast-food CEO who routinely violates labor law to a public servant with experience enforcing it.

Still, Mr. Acosta faces unsurprising partisan opposition. Sen. Elizabeth Warren (D-MA), an early opponent of any and all Trump administration action, was fiercely critical of the nominee.  Sens. Patty Murray (D-MA) and Tim Kaine (D-VA) similarly raised several concerns about his tenure as a United States Attorney during the initial hearing.

The Senate HELP Committee has scheduled a hearing for Thursday, March 30, 2017, at which it is expected they will approve of Mr. Acosta’s nomination and send it to the broader Senate for confirmation.

 

Supreme Court Affirms Invalidation of Most of Lafe Solomon’s Tenure as Acting General Counsel

Posted in Federal Court Litigation, NLRB Administration, Presidential Appointments, SCOTUS, White House

The Supreme Court has settled the question surrounding the validity of acting NLRB general counsel Lafe Solomon’s official actions.  Yesterday, in National Labor Relations Board v. SW General, Inc., 580 U.S. –, Case Nos. 14-1107, 14-1121 (Mar. 21, 2017), the Court affirmed the D.C. Circuit’s opinion that Solomon’s continued service in his acting capacity, after President Obama nominated him to permanent status, violated the Federal Vacancies Reform Act (“FVRA”).

The FVRA grants the President limited authority to appoint acting officials to temporarily perform the functions of a vacant office without first obtaining otherwise required Senate approval.  The FVRA prohibits persons from serving as acting officers if the President has nominated them to fill the vacant office permanently.

In June 2010, the NLRB’s general counsel—who had been serving with Senate confirmation—resigned.  President Obama directed Solomon to serve temporarily as the NLRB’s acting general counsel, citing the FVRA as the basis for the appointment.  On January 5, 2011, he nominated Solomon to serve as the NLRB’s general counsel on a permanent basis, but the Senate did not act on the nomination during the 112th Congress, and returned the nomination to the President when the legislative session expired.  President Obama resubmitted Solomon’s name for consideration in the spring of 2013 but the nomination suffered the same fate.  The President ultimately withdrew Solomon’s nomination and put forward a new candidate, whom the Senate confirmed on October 29, 2013.  Throughout this entire period, Solomon served as the NLRB’s acting general counsel.

Solomon’s nomination to permanent status, the Court concluded by a 6-2 margin, rendered him ineligible to serve in acting status.  The consequence?  While most actions taken in violation of the FVRA are void ab initio, a statutory exception for the NLRB general counsel caused the D.C. Circuit to opine that such actions are voidable, not void.  The Supreme Court recognized the D.C. Circuit’s conclusion in this regard, but declined to consider the issue further because the NLRB did not seek certiorari on the issue.  Another possible development is that the current General Counsel, Richard Griffin, an appointee of President Obama and philosophical ally of Mr. Solomon, could attempt to “ratify” all decisions made by the GC during the period in question — as the Board attempted following the Supreme Court’s Noel Canning decision. This effort itself would be subject to further legal challenge, perhaps complicated further by the unsettled state of the Board’s current and near future composition and political balance.

In the meantime, parties who found themselves the subject of complaints issued during Mr. Solomon’s invalid tenure, or who currently face Board proceedings based, in any part, upon purported precedent from that era, should certainly review all legal options in light of this SCOTUS ruling.

 

Court of Appeals Again Rejects National Labor Relations Board, Finds FedEx Ground Drivers Are Independent Contractors

Posted in Federal Court Litigation, NLRB Decisions

The U.S. Court of Appeals for the D.C. Circuit in a published opinion earlier this month emphasized that it means what it says.  In 2009, the Court held in FedEx I that single-route FedEx drivers in Wilmington, Massachusetts are independent contractors, not employees, and therefore not entitled to the NLRA’s protections.

Five years later, despite this ruling, the NLRB held “on a materially indistinguishable factual record” that single-route FedEx drivers in Hartford, Connecticut are nevertheless statutorily protected employees.  The NLRB acknowledged that FedEx I was “virtually identical” but nevertheless “declined to adopt” the Court’s 2009 interpretation of the NLRA.  The NLRB principally disagreed with the emphasis the D.C. Circuit placed on “entrepreneurial opportunity” as a factor in determining whether a worker is an employee or an independent contractor.  In the NLRB’s view, the D.C. Circuit placed undue weight on that single factor, rather than weighing it as part of a broader consideration.

On review, the D.C. Circuit chastised the NLRB because the question presented “was already asked and answered in FedEx I.”  The Court explained that “[i]t is as clear as clear can be that the same issue presented in a later case in the same court should lead to the same result.”  The NLRB chose not to seek Supreme Court review of FedEx I and cannot get a second bite at the apple merely by asking a different panel of the appeals court to reconsider its 2009 FedEx I ruling.

This case represents not only a long-awaited win for FedEx, but also a broader rejection of the NLRB’s efforts to reverse case law by way of the “try, try again” tactic.  Absent Supreme Court review, the D.C. Circuit’s legal pronouncements in FedEx I will govern the independent contractor status of single-route FedEx drivers.