Labor Relations Today

Labor Relations Today

District of Columbia Court of Appeals Orders Reinstatement of Striking Employees

Posted in Federal Court Litigation, NLRA

On November 13, 2015, the United States Court of Appeals for the District of Columbia Circuit (the “Court”) affirmed a National Labor Relations Board (the “Board”) order requiring a concrete company to reinstate striking workers. Spurlino Materials, LLC v. NLRB, Case Nos. 12-1034 and 12-1123 (D.C. Cir. Nov. 13, 2015).  The Court’s decision highlights the difference between economic and partial strikes (during which the striking employees run the risk of being replaced) and unfair labor practice strikes (which entitle the striking employees to reinstatement if they wish to return to work).

In 2006, a union was certified as the exclusive collective bargaining representative of the employer’s drivers and plant operators. Over the following years, the union and the employer engaged in several unsuccessful bargaining sessions.  In 2007, during the ongoing negotiations, the employer terminated a vocal union supporter.  The union challenged the termination as unlawful and, in 2009, the Board agreed and ordered the employer to reinstate the employee.  Rather than reinstate the employee, however, the employer appealed the Board’s decision in federal court.

While the appeal was pending, the union held an employee meeting to provide updates on both the contract negotiations and the status of the Seventh Circuit appeal. After explaining the difference between economic and unfair labor practice strikes, the union president recommended that, if the employees decided to strike, the strike should be over the employer’s unfair labor practices.  The employees voted unanimously to engage in an unfair labor practice strike and notified the employer of the same.  The employees also informed the employer that they would abide by a no-strike clause contained in a project labor agreement governing construction of a convention center.

Over the course of the strike, the employer continued its operations using employees from a sister company and replacement workers. Although the striking employees were willing to work on the convention center project, the employer did not assign them any such work.  After nine days, the striking employees notified the employer that they were prepared to end the strike and unconditionally return to work.  The employer, however, refused to reinstate the striking employees, claiming that it was under no obligation to do so because the strike was unprotected as an economic or partial strike.  After the union successfully pursued an unfair labor practice charge and the Board ordered the employer to reinstate the striking employees, the employer petitioned the Court for review.

The Court rejected each of the employer’s arguments. First, the Court agreed with the Board that the strike at issue was an unfair labor practice, not an economic, strike.  Under applicable precedent, if a strike has more than one cause, it still is considered an unfair labor practice strike if an unfair labor practice has “anything to do with causing” the strike.  In this case, there was substantial evidence, including the strike letter and testimony from striking employees, that the employees voted to strike because of the employer’s refusal to comply with a Board order and reinstate a union supporter.  The Court also concluded that the employees’ agreement to abide by a no-strike clause in the project labor agreement did not render their strike an unprotected partial strike.  The Court noted that the employer’s partial strike argument amounted to a “Catch-22” for the striking employees.  If they honored the no-strike clause, then they would be engaging in an unprotected partial strike; if they refused to perform work on the convention center, then they could be terminated for violating the no-strike clause.  Either way, the employees could lose their jobs.  Finally, the Court rejected the employer’s challenge to the Board’s finding that the employer and its sister company were a “single employer,” which could be held jointly and severally liable for any unfair labor practice committed by either one.  The Court, like the Board, concluded that the two companies had common majority ownership; common top-level decisionmaking; common operations and common control over labor relations.

NLRB Considers Whether to Overrule 11-Year Old Precedent Holding That Graduate Students Are Not Employees Under the NLRA

Posted in NLRA, NLRB, NLRB Decisions

Earlier this month, we posted about a Regional Director’s dismissal of a petition filed by an organizing committee of the United Auto Workers (UAW) seeking to represent various student assistants at Columbia University in New York.  The UAW has filed a request for review in that case which is currently pending before National Labor Relations Board (NLRB).  In a related matter involving a different educational institution, the NLRB is now considering whether to modify or overrule eleven-year old precedent holding that graduate students performing work related to their studies for educational institutions at which they are enrolled are not employees under the National Labor Relations Act (NLRA).

This matter stems from a petition also filed by the UAW in December 2014 seeking to represent a unit of students providing teaching and research-related services to The New School, a New York not-for-profit corporation which operates institutions for higher education in New York, New York.  The Regional Director administratively dismissed the petition in February 2015, finding that it sought an election among graduate students who could not be considered employees under the Act pursuant to the Board’s decision in Brown University, 342 NLRB 483 (2004).  In Brown, the NLRB held that graduate students enrolled at educational institutions who also performed work related to their studies were not “employees” under the NLRA because their relationship with the school was predominantly academic rather than economic.

In March 2015, the Board granted the UAW’s request for review and remanded the case to the Regional Director for hearing. After a hearing, the Regional Director dismissed the petition in July 2015, again concluding:

I am constrained by Brown, which holds that graduate assistants are not “employees” within the meaning of Section 2(3) of the Act.  Because the Petitioner seeks to represent individuals employed in classifications which fall within the term “graduate assistants,” Brown is controlling, and therefore I am dismissing the petition.

The UAW again filed a request for review and urged the Board to overrule Brown, stating “The time has come to squarely overrule a decision that has no basis in the statute, precedent, logic, or experience.”  In October 2015, the Board granted the request for review in a 3-1 decision, finding that “it raises substantial issues warranting review.”

On November 18, 2015, both parties submitted briefs on review.  The New School’s brief defends Brown as sound law and argues that there is no reasoned justification to modify or overrule the Brown decision:

[T]he sole reason for the creation of these graduate assistant positions is, and was, to assist the graduate students in the attainment of their degree while at the same time providing them with a form of financial aid. Any effort to modify Brown is therefore necessarily misplaced, and flies in the face of the undisputed intent of The New School to assist students by both creating and fostering the growth of these graduate assistant positions.

The UAW’s brief again asked the Board to overrule Brown:

The Brown decision cannot be reconciled with the statute or precedent.  The assumptions upon which that decision is based are contradicted by experience and by academic studies.  The decision reflects a fundamental hostility to the process of collectively bargaining, speculating that bargaining will cause damage to relationships where there is no evidence or logic to support such fears.

The Board’s characterization of this case as raising “substantial issues warranting review” suggests that the Brown decision will be under scrutiny and will likely be modified or overruled.  If the Board chooses to overrule Brown, this case will be yet another example of the NLRB expanding its reach.

NAM Files Amicus Brief Challenging ALJ Decision Reinstating Racist Employee

Posted in Amici Briefs, NLRB, NLRB Decisions, Picket Line Activity, Unfair Labor Practices

On November 10, 2015, the National Labor Relations Board granted the National Association of Manufacturers’ motion to file an amicus brief in Cooper Tire & Rubber Co., Case No. 8-CA-87155, in which the employer is challenging an administrative law judge’s decision requiring the employer to reinstate an employee who made racist statements on the picket line. The case arose when the parties’ collective bargaining agreement expired and the employer locked out its employees and began using temporary replacements. Many of those temporary replacements were African American. When several vans of replacement workers drove past the pickets, a locked-out employee yelled several racist statements at the vans, including:

  • “Hey, did you bring enough KFC for everyone?” and
  • “I smell fried chicken and watermelon!”

The employer terminated the employee for those statements, and the union grieved and arbitrated the termination. Although an arbitrator upheld the termination, a NLRB administrative law judge found that the harassment policy did not justify the termination:

The employee’s] “KFC” and “fried chicken and watermelon” statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by [the employee] towards the replacement workers in the vans.

The judge further explained that the arbitrator’s ruling gave short-shrift to the protections that the Act grants to picket line conduct.  As such, the arbitrator’s decision affirming the termination was “clearly repugnant” to the Act. As a result of the ALJ’s findings, the employer was ordered to reinstate the employee.

In its amicus brief, NAM asserts that the ALJ decision:

cannot be allowed to stand. The Board must recognize the important purposes underlying federal anti-discrimination and anti-harassment statutes enacted by the United States Congress and acknowledge employers’ obligations—both legal and moral—to protect employees’ right to be free from discrimination and harassment in the workplace. Further, the Board should affirm its stance against racial discrimination and harassment, harmonize its interpretation of the Act with the clear federal policies prohibiting racism, and determine employees do not have any statutory right to engage in discriminatory and harassing conduct. For these reasons, which are discussed more fully below, the Board should overrule the ALJ Decision and determine that racist statements have no protection under the Act.

The parties have until November 24 to respond to NAM’s brief.

NLRB Subpoenas: When Defective Service Is Still Effective Service

Posted in Federal Court Litigation, NLRB, Subpoenas

A recent decision by the Ninth Circuit Court of Appeals in NLRB v. Fresh and Easy Neighborhood Market, Inc., Case No. 12-55828 (Nov. 13, 2015), emphasizes the importance of exhausting administrative remedies before the NLRB when challenging subpoenas, even when the subpoena was not properly served. In Fresh and Easy, an unfair labor practice case, the union served a subpoena on the employer but did not serve a copy on the employer’s attorney as required by the NLRB’s Rules and Regulations. The employer, however, did email a copy of the subpoena to its attorney, but the attorney overlooked the email and never filed a petition to revoke. Although the employer did raise an issue with the union’s subpoena at the hearing, the administrative law judge declined to to entertain the employer’s arguments in the absence of a petition to revoke. When the employer refused to comply with the improperly served subpoena, the NLRB and the union filed an action in federal court to enforce the subpoena.

While the Ninth Circuit agreed that the subpoena was not properly served, it agreed with the district court’s order requiring compliance with the subpoena:

Although the Union was obliged to serve the subpoena on Fresh & Easy’s counsel of record, we agree with the Board’s conclusion that “failure to serve counsel does not constitute grounds for revoking a subpoena, absent a showing of prejudice.” … In its proceedings before the ALJ and before the Board on appeal, Fresh & Easy “failed to establish or even allege that it suffered any prejudice from the [union’s] failure to serve the subpoena on the [employer’s] counsel.” … Without prejudice, the defective service did not invalidate the subpoena ab initio, and Fresh & Easy was required to bring any challenge to the subpoena through a petition to revoke….

In explaining its ruling, the Ninth Circuit stated that it could not “create a rule that would allow a lawyer with actual notice of a subpoena to take no action, in hope that the charging party will not seek enforcement, and make objections only if enforcement proceedings ensue.”

Employer Had No Duty to Bargain Over Use of GPS Tracking Device

Posted in Division of Advice, Duty to Bargain, NLRB Decisions, Unfair Labor Practices

The NLRB’s Division of Advice recommended dismissal of an unfair labor practice charge alleging that an employer violated Section 8(a)(5) of the National Labor Relations Act by using a GPS tracking device to investigate an employee without first bargaining with the union. The Division of Advice’s sensible conclusion was based on the specific facts of the case, as normally employers would have an obligation to bargain about the use of GPS tracking devices to monitor its employees.

In Shore Point Distribution Co., NLRB Case 22-CA-151053 (Div. of Advice October 15, 2015), the union was aware of and had no objection to the employer’s practice of retaining a private investigator to follow employees suspected of stealing time and using any results obtained through the investigator’s personal observations for disciplinary purposes. When the employer became concerned that one of its employees was stealing time, it hired an investigator to follow the employee. To facilitate the investigation, the employer placed a GPS tracking device on the employee’s truck during the days he was being followed for the sole purpose of ensuring that the private investigator could both maintain and regain visual contact if he lost the employee.

In recommending dismissal, the Division of Advice noted that employers have a duty to bargain over a unilateral change in terms and conditions of employment, but only if that change is a “material, substantial, and significant one.” For example, the Board has held that an employer’s substitution of timeclocks for manual notations to record work time was not a material, substantial, and significant change in the employees’ terms and conditions of employment because the rule itself that employees must record their time in and out remained unchanged. Similarly, Division of Advice had previously concluded that an employer that videotaped an employee suspected of workers compensation fraud had no duty to bargain over the use of the video camera because the employer had a practice of investigating such fraud using personal observation, and following the unilateral change, it merely obtained the same type of information through additional electronic means. As such, the unilateral change in those cases did not result “in more stringent requirements or would likely impact employment security.” Given those decisions, the Division of Advice concluded that the employer in Shore Point similarly had no duty to bargain over the use of the GPS tracker in this particular instance:

the Employer has an established practice, to which the Union does not object, of retaining an investigator to follow employees suspected of stealing time. The information obtained by the GPS device was used in conjunction with the Private Investigator’s personal observations and provides the same information that he could obtain by following the suspect Employee’s truck. Indeed, on the one occasion that the Private Investigator apparently relied on the GPS, he used it only to help track the Employee when he lost sight of the truck in order to continue his personal observations. … [T]he GPS device in this case merely provided a mechanical method to assist in the enforcement of an established policy.

NLRB Regional Director Dismisses Petition by Union Seeking to Represent University Student Teaching and Research Assistants

Posted in Bush Board Reversal, NLRA, NLRB Decisions, Representation Elections

On October 30, 2015, the Regional Director for Region 2 of the National Labor Relations Board dismissed a petition filed by an organizing committee of the United Auto Workers (UAW) seeking to represent various student assistants at Columbia University in New York.  In Columbia University, Case No. 02-RC-143012, the Union sought to represent a unit of

[a]ll student employees who provide instructional services, including graduate and undergraduate Teaching Assistants…; [a]ll Graduate Research Assistants… and [a]ll Departmental Research Assistants…

Earlier in the year, the Regional Director administratively dismissed the petition, based on the Board’s ruling in Brown University, 342 NLRB 483 (2004), holding that graduate student assistants are not “employees” under the NLRA.  The Board, however, granted the Union’s request for review and remanded the case to the Region for a hearing.  Following twelve (12) days of hearing, and full briefing, the Regional Director has once again ruled against the Union and dismissed the petition, relying on Brown:

I have considered the arguments presented by the parties. I conclude that I am constrained by Brown, which holds that graduate assistants are not “employees” within the meaning of Section 2(3) of the Act. Because the Petitioner seeks to represent individuals employed in classifications which fall within the term, “graduate assistants,” Brown is controlling, and therefore I am dismissing the petition.

This is far from the last we will hear of this issue, however.  This is the second time in recent days that Region 2 has twice dismissed a union petition seeking to represent student assistants.  On October 21, 2015, the Board granted a request for review in the other case, The New School, Case No. 02-RC-143009.  One should expect a request for review to be filed in this case as well, and it is very possible that the Board has been actively looking to overturn Brown to provide collective-bargaining rights to university student teaching assistants.

Until the novel New Y0rk University decision, 332 NLRB 1205 (2000), decades-old Board law held that these types of assistants were students and not “employees” within the meaning of the Act.  The Brown decision restored that long-standing precedent.  In connection with its 2014 consideration of the Northwestern University football players’ petition, the Board issued an invitation for amicus briefs which expressly asked:

Insofar as the Board’s decision in Brown University, 342 NLRB 483 (2004), may be applicable to this case, should the Board adhere to, modify, or overrule the test of employee status applied in that case, and if so, on what basis?

In dismissing the petition of the football players in that widely followed case, the Board specifically indicated that it took no position on whether or not Brown was correctly decided. These provide pretty clear signs that the issue is squarely in the Board’s sights.  Likewise, if it was not, there would be little reason to grant review of these recent RD decisions. The detailed decisions following remand and hearing in The New School and Columbia University cases thoroughly outline the manner in which the substantial evidence led the RD to conclude the graduate student assistants’ functions are closely related to their education and the school’s academic mission. These cases remain ones for all employers — but particularly those in higher education — to follow through early 2016.

Photo Identification Required: Administrative Law Judge Finds Union’s Rule on Resignations Facially Lawful

Posted in NLRA, NLRB, Unions

On October 26, 2015, Administrative Law Judge David I. Goldman (“ALJ Goldman”) held that a union did not violate federal labor law by maintaining a rule requiring that members wishing to resign or to revoke a dues check-off do so in person at a union hall with a photo ID and a written request.  Local 58, Int’l Brotherhood of Elec. Workers, ALJ No. 07-CB-149555 (Oct. 26, 2015).

Citing a history of members losing their membership through fraudulently submitted paperwork, on October 1, 2014, the union announced a policy providing that any member desiring to opt out of membership or dues deduction must bring a written request and picture identification to a local union hall.  The policy also stated that any member who believes that appearing in person poses an undue hardship could contact the union hall to make other arrangements to verify his/her identity.  The National Labor Relations Board’s (the “Board”) General Counsel alleged that his policy was unlawful on its face, “without regard to motive, enforcement, application, or any record evidence that an employee’s failure to comply with the policy has consequences of any kind.”  According to the General Counsel, the National Labor Relations Act (the “Act”) prohibits a union from prescribing any particular method for resigning membership or for revoking a dues check-off authorization.

ALJ Goldman disagreed with the General Counsel’s position.  ALJ Goldman observed that “only where the rule on its face squarely abridges resignation in a manner that has unequivocally been found to be unlawful to enforce, will the Board find a violation of [the Act] based on maintenance of the rule.”  According to ALJ Goldman, the Board has found resignation rules facially invalid only where such rules prohibited resignation at certain times (i.e., during a strike), required payment of fines, dues, or levies to affect resignation, or permitted the union to retain control over an employee after resignation.  This rule, on the other hand, merely prescribed a manner and place for resignation but did not restrict a member’s ability to resign.

In rendering his decision, ALJ Goldman noted that the General Counsel’s challenge was based on the text of the union rule alone, without any evidence that the union actually applied the rule to prevent any member from resigning.  ALJ Goldman thus concluded that, although such application of the rule may not survive scrutiny, “the mere maintenance of this policy does not violate the Act on its face, under existing Board precedent.”


House Bill Aims To Reverse NLRB’s Expanded “Joint Employer” Definition

Posted in House of Representatives, Joint Employer, Legislation, NLRA, NLRB

On October 28, 2015, the House Committee on Education and the Workforce met to mark up the Protecting Local Business Opportunity Act (H.R. 3459)—a bill designed to curtail the National Labor Relations Board’s recent expansion of “joint employer” under the National Labor Relations Act (“NLRA”).

As previously discussed, the NLRB’s Browning Ferris Industries decision dramatically expanded the definition of “joint employer”. Specifically, the Board held that entities do not have to exercise “direct and immediate control” over the terms and conditions of employment to be considered “joint employers”, opening the door for possible suits against franchisors and contractors.  The new supposed ‘standard’ adds uncertainty and raises more questions than it answers for employers and employees alike.

In an attempt to restore the traditional definition of “joint employer” under Federal labor laws, the House bill limits the term to those entities that have “actual, direct, and immediate control” over an employee. The bill advanced out of committee by a 21-15, with all Republicans voting in favor and all Democrats voting against the bill.

Fifth Circuit Reverses Board Decision on Lawfulness of Arbitration Agreements Once Again

Posted in NLRA, NLRB, NLRB Decisions, Uncategorized, Unfair Labor Practices

In Murphy Oil USA, Inc. v. National Labor Relations Board, a three-judge panel of the United States Court of Appeals for the Fifth Circuit again held, contrary to the NLRB, that an employer does not commit an unfair labor practice by requiring its employees to sign arbitration agreements.  In doing so, the Fifth Circuit followed its earlier decision in D.R. Horton, which rejected a similar ruling from the NLRB.

In the underlying Board decision, the NLRB disregarded the Fifth Circuit’s D.R. Horton decision and held that the employer violated § 8(a)(1) of the National Labor Relations Act by enforcing agreements that required employees to resolve all employment-related claims through arbitration.  As in D.R. Horton, the Fifth Circuit again reversed, finding that an employer commits no unfair labor practice by requiring employees to relinquish their right to pursue class or collective claims in all forums by signing arbitration agreements.  However, the Fifth Circuit denied the employer’s request to hold the Board in contempt for disregarding its precedent, stating that the Board may not have known that Fifth Circuit law would control on petition for review.  The Fifth Circuit stated, “We do not celebrate the Board’s failure to follow our D.R. Horton reasoning, but neither do we condemn its nonacquiescence.”

The Board had also found that the employer’s arbitration agreement and revised arbitration agreement violated § 8(a)(1) of the NLRA because employees could reasonably believe the agreements precluded the filing of Board charges. The Fifth Circuit partially enforced this ruling.

The original arbitration agreement provided that “any and all disputes or claims [employees] may have . . . which relate in any manner . . . to . . . employment” must be resolved by individual arbitration and that employees “waive their right to . . . be a party to any group, class or collective action claim in . . . any other forum.” The Fifth Circuit enforced the Board’s ruling that this broad language created the reasonable impression that an employee waived administrative rights.

The employer issued the revised arbitration agreement after the Board’s decision in D.R. Horton, adding the following clause:  “nothing in this Agreement precludes [employees] . . . from participating in proceedings to adjudicate unfair labor practice[] charges before the [Board].”  The Board found that this modification did nothing to correct the unlawfulness of the agreement because it left the entirety of the original agreement intact.  The Fifth Circuit reversed, holding that, reading the revised arbitration agreement as a whole, “it would be unreasonable for an employee to construe the Revised Arbitration Agreement as prohibiting the filing of Board charges when the agreement says the opposite.”

The Fifth Circuit also rejected the Board’s finding that the employer violated § 8(a)(1) of the NLRA by filing a motion to dismiss and compel arbitration in response to claims filed by its employees in Alabama federal court. The Fifth Circuit found that the employer’s motions had a reasonable basis in fact or law and issued the following warning to the NLRB:

Though the Board might not need to acquiesce in our decisions, it is a bit bold for it to hold that an employer who followed the reasoning of our D.R. Horton decision had no basis in fact or law or an “illegal objective” in doing so.  The Board might want to strike a more respectful balance between its views and those of circuit courts reviewing its orders.

Another Facebook Victory for Employees—Second Circuit Concludes Facebook “Likes” May Be Protected by Labor Law

Posted in Federal Court Litigation, NLRA, NLRB, Social Media

Regular readers of this blog are well-aware that employee social media activity has been and continues to be a hot-button topic for the National Labor Relations Board. Cases involving Facebook and other social media posts rarely end well for employers (see here, here, and here), and the Second Circuit Court Appeals’ October 21, 2015 decision in Three D, LLC v. NLRB provides yet another example of the Board’s aggressive protection of employee “Facebook” activity. In this case, the Second Circuit held that a sports bar violated the National Labor Relations Act (“NLRA”) when it terminated two employees for commenting on and “liking” a Facebook post critical of the bar’s owners.

The employee conduct at issue consisted of: 1) one employee’s “like” of an ex-employee’s status update stating, “[m]aybe someone should do the owners of [the sports bar] a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…wtf!!!!” and 2) another employee’s comment on the status referencing the owner, “I owe too. Such an asshole.” The sports bar terminated both employees for this social media activity.

The National Labor Relations Board (the “Board”) found, and the Second Circuit agreed, that both the comment and the mere posting of the thumbs-up “like” designation constituted activity protected under the NLRA because they “clearly disclosed the ongoing labor dispute over income tax withholdings….” The Second Circuit also agreed with the Board’s conclusion that the employees’ Facebook activity was neither “so disloyal as to lose the protection of the [NLRA] because [they] did not even mention [the sports bar’s] products or services, must less disparage them” nor defamatory because there was no basis to conclude that the statements “were maliciously untrue.”

Of likely significance, the Second Circuit rejected the sports bar’s argument that the court’s precedents would strip the employees’ Facebook activity of protection because it contained obscenities that were viewed by customers. Distinguishing a prior decision that the use of obscenities in the presence of customers in customer areas may not constitute protected activity, the Second Circuit reasoned that applying that same standard to a Facebook post that customers may potentially see “could lead to the undesirable result of chilling virtually all employee online speech.” According to the Second Circuit, “[a]lmost all Facebook posts by employees have at least some potential to be viewed by customers.” Although the Facebook posts in this case contained obscenities, they were “not directed toward customers and did not reflect the employer’s brand.” As such, the employees’ Facebook activity fell squarely within the protections of the NLRA, and the sports bar’s termination of the two employees therefore was unlawful.

The Second Circuit’s rationale here ignores the distinctions drawn in the earlier case, however, between employee profanity which might be protected because it takes place “in the shop,” away from public consumption, and the very public use of such inappropriate language among customers. Moreover, one could just as easily argue that a Facebook posting nowadays might do damage for an infinitely wider customer audience than a single vulgar verbal outburst in one store at one point in one day. Regardless, following the Second Circuit’s endorsement of the Board’s rationale here, employers should expect the Board to continue aggressively protecting a broader range of employee social media activity against employers, with the courts forced into increasingly complicated case-by-case line-drawing challenges on review.