Labor Relations Today

Labor Relations Today

Board Finds That Canvassers Are Employees, Reversing ALJ

Posted in NLRA, NLRB, NLRB Decisions

Further crystalizing the Board’s efforts to expand the definition of “employee” under the NLRA, the Board recently reversed an ALJ’s decision, holding that canvassers for a non-profit organization were employees, not independent contractors. In Sisters Camelot, 363 NLRB No. 13 (Sep. 25, 2015), a canvasser filed a charge alleging that he was terminated for engaging in protected concerted activities during an organizing drive by the Industrial Workers of the World (IWW).  The ALJ initially dismissed the Complaint, holding that the canvassers – who went door-to-door collecting donations for a non-profit organization without any direct supervision – were independent contracts, not employees.

In reversing the ALJ, the Board applied the 11-factor independent contract test laid out in recent cases, and held that, on balance, ten of the eleven factors favored employee status. Even though the canvassers were not required to report for work on any specific day, were not subject to in-person supervision, were able to work for other organizations, could quit or go inactive for any periods of time, and understood themselves to be independent contractors, the Board concluded overwhelmingly that the canvassers were employees. The Board held:

Critically, when the canvassers work for the Respondent, they do so at times and locations determined by the Respondent. Their compensation is nonnegotiable and strictly limited by the Respondent’s time and location restrictions. Canvassers must generally use the Respondent’s tools and instrumentalities, including materials and transportation. They have no proprietary interest in any part of the canvassing operations, including their raps. They must keep accurate and detailed records as part of the Respondent’s close scrutiny of their activities. If they do not comply with the Respondent’s directives, they may be subject to discipline. Canvassers are also well integrated into the Respondent’s organization and identify themselves as part of it. The Respondent provides training, and canvassers need not have any specialized education or prior experience. While the Respondent conducts other fundraising activities beyond neighborhood canvassing, it could not fulfill its charitable mission without the canvassers, who procure most of its operating funds. Finally, there is no evidence showing that the canvassers render services as part of an independent business.

Having reversed the ALJ on the issue of employee status, the Board then affirmed his contingent holding that the employer had violated the Act by its termination of the individual worker.

More resources and commentary:

“NLRB Calls Non-Profit Canvassers Employees, Not Contractors” – Law360 ($) []

More About the Protecting American Jobs Act (S. 2084)

Posted in Federal Court Litigation, House of Representatives, Legislation, NLRA, NLRB, NLRB Administration, NLRB Rule-Making, Senate

As noted yesterday, Senator Mike Lee (R-UT) has introduced a bill to curtail the authority of the National Labor Relations Board.  The Protecting American Jobs Act (S. 2084) — co-sponsored by Sens. Ted Cruz (R-TX) and Tom Cotton (R-AR) — is analogous to a House bill (H.R. 1893) introduced earlier in 2015, now with seventy Republican co-sponsors.  It would amend the NLRA to eliminate the authority and responsibility of the General Counsel to issue and prosecute complaints before the Board; and transfer adjudication from the Board to the federal courts.  Moreover, it would expressly clarify that the Board’s statutory rulemaking authority is limited to internal administration:

Such rulemaking authority shall be limited to rules concerning the internal functions of the Board. The Board shall not promulgate rules or regulations that affect the substantive or procedural rights of any person, employer, employee, or labor organization, including rules and regulations concerning unfair labor practices and representation elections.

More Resources and Commentary:

Quick Hits: Wednesday, September 30, 2015

Posted in Legislation, NLRB, NLRB Administration, Quick Hits, Representation Elections

Senate Bill To Curb NLRB: Following Dems introduction last week of the “WAGE Act” to radically expand NLRB powers to facilitate union organizing, on Monday, Sen. Mike Lee (R-UT) introduced a counter-measure to cut drastically the Board’s role and authority. The text of the Protecting American Jobs Act (S. 2084) is not yet available online, but Law360 ($) reports the bill “would allow the board to conduct investigations, but it would hand the power to hear labor disputes over to federal courts.

Sen. Lee asserts:

For far too long the NLRB has acted as judge, jury, and executioner, for labor disputes in this country…. The havoc they have wrought by upsetting decades of established labor law has cost countless jobs. This common sense legislation would finally restore fairness and accountability to our nation’s labor laws.

Al Jazeera Digital Employees Vote: Al Jazeera America declined to voluntarily recognize the News Guild as the representative of its digital employees.  As a result, a mixed live / mail ballot election conducted by the NLRB began yesterday, with ballots to be counted on October 6, 2015.

Interesting Debate on the Gig Economy: The interfluidity blog posts a piece exploring antitrust elements of the classification of “independent contractors” in the new “gig economy,” asking:

Suppose the criteria for 1099 status really emphasized having multiple customers. For example, if you make money by offering people rides, the fact that you get to set your own schedule doesn’t cut it, if substantially all of your business comes from [one company]. To qualify as an independent contractor, if you do substantial business with a regular, repeat customer, you must have multiple customers in that line of business for whom you do substantial work. Otherwise, there is a strong presumption that you should be considered an employee of your customer.

The piece also suggests that contractors be guaranteed a minimum “unconditional basic income” in exchange for forgoing all the benefits of “employee” status.  The pro-union OnLabor blog argues, however, that this proposal would benefit capital and consumer competition, without a commensurate benefit to workers:

[B]eing an employee under current law is important for reasons that go beyond the right to earn a minimum income.  Being an employee entitles workers to safety and health guarantees, workers compensation, unemployment insurance, anti-discrimination protections, and the right to form unions and collectively bargain (which can translate into a host of additional protections and benefits, including a voice at work and protection against unjust discharge).  Interfluidity is right that a basic income can – if set sufficiently high enough – increase worker bargaining power by, e.g., raising the reservation wage. And this bargaining power can, in turn, be translated into lots of other things.  But the bargaining power that would flow from a basic income is unlikely to be a sufficient substitute for all the legal protections that come from being an employee under current law – especially given the dramatic political constraints on what the level of a basic income conceivable could be.

Senator Alexander Accuses NLRB, OSHA of Coordinated Effort to Change the Law

Posted in Joint Employer, Legislation, NLRA, NLRB, Senate

On September 23, 2015, Senator Lamar Alexander (R-Tenn.) stepped up his attacks on the National Labor Relations Board (“the Board”), accusing the Board of engaging in a coordinated effort with the Occupational Health and Safety Administration (“OSHA”) to change corporate liability laws.  During a hearing, Senator Alexander referred to news reports claiming that OSHA officials began instructing their regional directors to use the same “joint employer” standard that the Board adopted in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015) one day before the Board released its ruling.  Senator Alexander argued that OSHA has no business adopting the Board’s standards stating:

Since when did OSHA get in the business of trying to figure out if a franchisee and franchisor are joint employers or not?  Why does OSHA care about that?  Why isn’t OSHA interested in health and safety?

Senator Alexander recently introduced legislation to overturn the Board’s new “joint employer standard,” which he asserts “would make big businesses bigger and the middle class smaller by discouraging companies from franchising and contracting work to small businesses.”  The proposed legislation, “Protecting Local Business Opportunity Act,” would amend the National Labor Relations Act’s definition of “employer” to restore it to the pre-Browning-Ferris status.  Specifically, the proposed act provides:

Notwithstanding any other provision of this Act, two or more employer may be considered joint employers for purposes of this Act only if each share and exercises control over essential terms and conditions of employment and such control over these matters is actual, direct, and immediate.

As we previously reported, the Board’s new “joint employer” standard no longer requires that a “joint employer” both possess and exercise authority to control employees’ terms and conditions of employment.

NLRB Now Publishing Election Tallies Online

Posted in NLRB, NLRB Administration, Representation Elections

Without much fanfare on Tuesday, the National Labor Relations Board made the following announcement via Twitter:

There are currently 16,793 election results posted going back as far as 1994, but it is evident that the records for many of those years is incomplete (e.g., 1994, 1995, and 1996 each only have one result). However, the records for the last few years appear much more complete, and the data for each election is comprehensive as it identifies the city and state of the election; the employer; the election date; and the number of eligible voters, void ballots, votes for the union, votes against, and challenged ballots.

Quick Hits: Tuesday, September 22, 2015

Posted in NLRA, NLRB, Quick Hits, Unions, White House

Walker Out:  Wisconsin Governor Scott Walker (R) announced yesterday that he was withdrawing from the race for the GOP’s 2016 nomination for the presidency.  Walker, who famously clashed with labor unions in his home state, last week unveiled an outline of his policy proposals on labor law reform. They included: eliminating the NLRB; passing a national Right-To-Work law; and, prohibiting federal public employee unions. The AFL-CIO was obviously pleased with his exit.

Sixth Circuit Upholds NLRB Jurisdiction Over Indian Tribes: Denying a petition for re-hearing by the Little River Band of Ottawa Indians, the Court of Appeals for the Sixth Circuit upheld its June 1, 2015 panel decision.  In that decision, the majority criticized the principles on which it based its decision, and opined it would decline jurisdiction if “writing on a clean slate.” Nevertheless, it felt bound by precedent to rule against the tribe. The full panel of the Court appears to agree:

The petition … was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.

@LRToday Tweets of Interest: From our Timeline — are you following us?

Quick Hits: Monday, September 21, 2015

Posted in Beyond EFCA: Labor's Agenda, Media Round-Up, NLRA, NLRB Decisions, Quick Hits

ICYMI — Dems Intro “WAGE” Act: We reported last week on the drastic legislative proposal introduced to increase NLRB penalties against employers, to facilitate union organizing. In addition to our summary piece and this document including proposed changes to the NLRA in redline, we provided links to some additional resources and coverage. Add to those, this Washington Examiner piece and this EPI post promoting the bill.

Three For The Road: Law360 ($) today summarizes three notable NLRB decisions issued during former Member Harry Johnson’s final days on the job. Lest they be lost in the overshadowing of the Board’s major Browning-Ferris decision, the piece highlights:

  • GVS Properties, 362 NLRB No. 194, Case No. 29-CA-077359 (Aug. 27 2015), wherein the Board ruled that an employer “which purchased several properties in New York City and was legally obligated to retain building service workers, qualified as a successor employer that had to bargain with a union that represented workers at those properties.”
  • Lincoln Lutherine of Racine, 362 NLRB No. 188, Case No. 30-CA-111099 (Aug. 27, 2015), which we discussed here, wherein the Board cast aside 50 years of precedent to require employers to continue union dues checkoff payments following contract expiration.
  • On Assignment Staffing Services, Inc., 362 NLRB No. 189, 32-CA-095025 (Aug. 27, 2015), in which the Board “declared that mandatory arbitration agreements that require workers to waive their right to pursue class or collective action claims violated federal labor law.”

Joint Employer Impact: And businesses of all types are still struggling to determine how the Board’s recent Browning-Ferris decision, with its amorphous, results-driven “standard,” will impact popular business models.  Former NLRB Member Marshall Babson took to the New York Times Opinion Pages to criticize “[This] Impractical and Dangerous Ruling.”  SHRM notes that the “NLRB’s New Joint Employer Test May Impact OSHA” obligations as well.  Finally, this analysis by CIO looks at “How ‘joint employer’ ruling impacts IT outsourcing customers.”

More About the Workplace Action for a Growing Economy (WAGE) Act (S. 2402)

Posted in Beyond EFCA: Labor's Agenda, Legislation, Legislative Strategy, NLRA, Remedies, Unions

Here is the text of the bill.

Here is our red-lined version of the NLRA incorporating the revisions proposed by the bill.

Here is the AFL-CIO blog post urging its passage.

Here is Richard Trumka’s blog piece in The Hill today.

Here is a Fact Sheet provided by Rep. Susan Davis (D-CA).

Collected media coverage:

Democrats Introduce Bill To Increase Dramatically NLRA Penalties Against Employers

Posted in Beyond EFCA: Labor's Agenda, EFCA, Legislation, NLRA, Remedies, Representation Elections, Unions

On Thursday, September 17, 2015, Senator Patty Murray (D-WA) and Representative Bobby Scott (D-WA) introduced the Workplace Action for a Growing Economy (WAGE) Act (S. 2042).  The bill, promoting collective-bargaining and labor unions by drastically enhancing penalties against employers under the National Labor Relations Act, is being proposed primarily as an election season litmus test, with virtually no chance of becoming law any time soon. Nevertheless the bill contains a number of proposals employers must track, particularly in the unlikely case there winds up being any serious policy discussion on the measure at all.

We’ve provided a red-lined version of the National Labor Relations Act including the bill’s proposed revisions here. In sum, the WAGE Act would amend relevant portions of the NLRA to:

  • Provide treble damages in cases of economic loss to employees (without any offset for interim earnings);
  • Provide concurrent private civil causes of action for individual employees to pursue in the federal courts;
  • Allow private litigants to obtain relief as under the civil rights acts, including attorneys fees;
  • Provide civil penalties up to $100,000 against employers who commit unfair labor practice charges resulting in economic loss to employees;
  • Provide civil penalties for up to $100,000 personally against officers or directors of an employer;
  • Expressly expand the Board’s “joint employer” standard for enforcing joint and several liability against multiple parties;
  • Expressly protect the right of unauthorized immigrant workers to collect these remedies;
  • Require the Board to pursue, and federal courts to grant, preliminary injunctions in a broad variety of cases;
  • Provide bargaining orders as the standard remedy for any election objections, if majority authorization card status can be established at any time within a year preceding an election;
  • Require all employers to post a Notice of employee rights under the NLRA, and advise new employees of the same;
  • Make Board Orders self-enforcing

Both in the aggregate, and some individually, these represent fairly radical increases in the exposure employers would face when unions seek to organize their workplaces. Perhaps notably, it also seeks to amend the law legislatively in ways which have been inappropriately pursued by executive and administrative fiat the past few years.  For instance, the Notice posting provisions resemble significantly the attempted 2011 rulemaking by the Board, which was subsequently invalidated by the federal courts. The effort to include express expansion of joint employment liability beyond even the Board’s recent radical departures from longstanding precedent raises provides another example.

Many other provisions of the bill are outright retreads or subtle re-packaging of provisions proposed without any success during the repeated failure to pass the Employee Free Choice Act (EFCA) last decade.  The treble damages provision, for one, was central to one of EFCA’s “three legs.” The WAGE Act includes that proposal “on steroids.”  Current financial remedies available to the National Labor Relations Board in economic loss cases are primarily designed as “make whole” remedies – to put a wronged employee in the financial position he or she would have been in, absent any unlawful activity causing a loss.  This proposal, purportedly for deterrent effect, would provide an economic windfall via the treble damages provision, not to mention the right to pursue concurrent civil litigation outside the Board.  Because the bill expressly forbids offsetting interim earnings, an employee terminated by an employer may be entitled to three times the amount of his or her compensation from that employer – even if he or she had obtained a higher paying job the next day.

Of course, the central feature of EFCA was card-check certification – whereby a union would be certified as an exclusive bargaining representative based solely on signatures collected by the union rather than the more accurate reflection of employee support captured in a secret ballot election. The WAGE Act would provide a significant back-door approach to this scheme, by allowing the Board to issue a bargaining order against an employer for any run-of-the-mill election objection.  So long as the union could subsequently prove it had signatures from a majority of employees at some point prior – regardless of how collected – the union could be certified without a re-run election.  For decades, the Board has reserved this type of remedy for only the most egregious examples of employer misconduct during union organizing efforts.  Under this bill, it would become the norm, and allow the Board to force union representation upon employees who have voted against union representation after becoming more informed about the issue.

All of this begs the question – why would Democrats, who enjoyed a legislative majority supporting an otherwise very labor-friendly White House for most of the last four years, wait until 2015, when they’ve lost that majority to propose these measures?  The AFL-CIO, which coordinated a publicity blitz (blog posts, Richard Trumka contribution to The Hill, etc.) with yesterday’s introduction of the bill, is not being coy about its true intent.  In a Guardian piece today, entitled “New pro-union bill to serve as litmus test for 2016 presidential candidates,” the coalition’s Director for Government Relations explains the strategy:

Having this legislation really puts [politicians] to a test – we want to make sure that our elected officials have something concrete to point to, to embrace, to explain to the public and to the press, and that’s really why we are doing this now.

While even the AFL-CIO concedes this bill has absolutely no chance of being enacted into law this year, or next, the proposal should provide employers with a very clear vision of the Democrats’ potential 2017 labor agenda.

National Labor Relations Board Declines to Order Make-Whole Remedy in Twenty Year Old Dues Check-Off Dispute

Posted in NLRA, NLRB, NLRB Decisions, Remedies

On September 10, 2015, the National Labor Relations Board (the “Board”) ended a twenty (20) year old dispute over union dues deductions. Hacienda Hotel, Inc. Gaming Corp., 363 NLRB No. 7 (Sept. 10, 2015). The Board adopted the Ninth Circuit Court of Appeals’ (the “Ninth Circuit”) ruling that the employer violated the National Labor Relations Act (the “NLRA”) by unilaterally terminating dues check-offs in 1995 after the expiration of union contracts but, citing “the unique circumstances of this case,” declined requiring the employer to reimburse the unions for any dues it failed to check-off (with compound interest).

The collective bargaining agreements at issue expired in 1994; and, in June 1995, the employer ceased the automatic deduction of union dues from employees’ paychecks. The unions filed charges with the Board alleging that the employer violated the NLRA by acting unilaterally without first bargaining to an impasse. In July 2000, relying on Bethlehem Steel Co., 136 NLRB 1500 (1962) (which the Board recently overruled), the Board concluded that the employer did not violate the NLRA. On appeal, the Ninth Circuit vacated the Board’s decision and remanded the case to the Board either to “articulate a reasoned explanation for its [Bethlehem Steel] rule or adopt a different rule with a reasoned explanation to support it.” The second time around, the Board again held that the employer did not violate the NLRA but on different grounds. The Board reasoned that the collective bargaining agreements between the employer and the unions contained explicit language through which the unions waived any right to the continuation of dues check-offs after the expiration of the agreements. The unions appealed to the Ninth Circuit, which once more vacated the Board’s decision. On remand, the Board dismissed the unions’ charges for a third time, “unanimously agree[ing] that its decisionmaking practices required it to apply existing precedent in Bethlehem Steel….” On September 13, 2011, the Ninth Circuit yet again vacated the Board’s decision. This time, the appellate court concluded “that a third remand would be futile” and ruled on the merits that the employer violated the NLRA by ceasing dues check-off unilaterally without bargaining to impasse. The Ninth Circuit remanded the case to the Board to determine the appropriate relief.

The Board unanimously adopted the Ninth Circuit’s ruling on the merits and ordered the employer to cease and desist “the activity found unlawful by the court and to post a remedial notice.” Acting through Members Miscimarra and McFerran, the Board majority, however, declined to order the employer to make the unions whole through reimbursement of any dues it failed to check-off. The majority concluded that, although “[i]n cases involving [an employer’s] failure to honor a dues-checkoff arrangement, the Board has ordered [the employer] to reimburse the union for any dues [the employer] failed to check off[,]” the unusual circumstances of this case did not warrant this remedy. Specifically, the majority reasoned that the employer rightfully relied on Bethlehem Steel in unilaterally ceasing dues check-offs in 1995 and “could not have foreseen the protracted litigation of this issue before the Board and the Ninth Circuit, culminating in a decision by the court finding, contrary to Bethlehem Steel,” that the employer violated the NLRA.

Member Hirozawa concurred in the Board’s adoption of the Ninth Circuit’s ruling but dissented from the majority’s decision not to order the make-whole remedy. According to Member Hirozawa, in fashioning its remedy, the majority failed to 1) “determine what relief is warranted” as the Ninth Circuit instructed and 2) consider the effects of the employer’s unlawful conduct on the unions and their members. Member Hirozawa concluded his dissent stating:

“It is one thing to fashion relief to remedy the effects of a violation. It is another to substitute our judgment for the court’s as to whether the violation should have been found in the first place. In my view, the Board should just answer the question that the court of appeals has posed and order the standard [make-whole] remedy found first by the court, and now by the Board.”