Labor Relations Today

Labor Relations Today

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.

Senate Joins House in Passing CRA Resolution to Invalidate Contractor Blacklisting Rules

Posted in Executive Orders, Government Contracts, House of Representatives, Senate, White House

On March 6, 2017, by a party-line vote of 49-48, the United States Senate passed a resolution of disapproval (H.J. Res. 37) pursuant to the Congressional Review Act, to preclude enforcement of the Federal Acquisition Regulatory (FAR) Council’s final rule implementing President Obama’s “Fair Pay and Safe Workplaces” executive order.  As outlined in greater detail in earlier posts, the rule would require offerors on contracts or subcontracts estimated to exceed $500,000 to disclose “any administrative merits determination, arbitral award or decision, or civil judgment” against the contractor under fourteen enumerated labor and employment statutes and Executive Orders (“labor law violations”), for the three years preceding the contract bid. These disclosures, and any additional information supplied, would be taken into account by contracting officers in making responsibility determinations and awarding contracts.

The rule exceeded the President’s authority, denied statutory due process rights to covered contractors, and expanded statutory penalties beyond those proscribed by Congress.  As noted in the Washington Post, by Marc Freedman, executive director of labor law policy with the U.S. Chamber of Commerce:

They define violations to include mere allegations and citations where the contractors haven’t had a chance to defend them. We consider this a violation of their constitutional due-process rights.

It was thus entirely unconstitutional, which is why in October 2016, on the eve of its effective date, a federal judge in Texas enjoined most parts of it.  This resolution, however, would officially remove the rule from the Federal Acquisition Regulation and prevent its future enforcement.  In February, a House vote approved the resolution, 236-187.  The bill is likely headed now to the White House for President Trump’s signature.

U.S. Chamber of Commerce Report Catalogs Extensive Extreme Activity by Obama Era National Labor Relations Board

Posted in Legislative Strategy, NLRA, NLRB, NLRB Decisions, NLRB Rule-Making, Presidential Appointments

Last week, the United States Chamber of Commerce issued a report intended to provide a blueprint to the Trump administration as it looks toward formulating a labor relations agenda.  “The Record of the National Labor Relations Board in the Obama Administration: Reversals Ahead?” is a 162-page report, summarizing the most significant labor relations developments of the last eight years.  Many of these developments will be well-known to readers of this blog and our annual reviews, but the report provides a very helpful compilation as well as a summary of the ongoing significance of each.

As the Chamber explains in its blog post announcing its publication, the report addresses among other issues:

  • The board undercutting “management rights” clauses to increase union leverage during collective bargaining;
  • The board changing the law of successorship to more often require bargaining obligations for successors before instituting new terms and conditions of employment;
  • The board’s effort to stretch the meaning of “supervisor” to expand coverage of the National Labor Relations Act;
  • The board limiting employers’ abilities to hire replacement workers in order to continue operating during a strike; and
  • Requiring employers to continue remitting employee union dues even after expiration of the collective bargaining agreement, thereby increasing union bargaining leverage.

The U.S. Chamber’s hope that this study will provide a guide for the regulatory agenda ahead mirrors the testimony of many witnesses in the February 14, 2017 hearing held by the House Education and the Workforce Committee, “Restoring Balance and Fairness to the National Labor Relations Board.

AFL-CIO, Labor Unions Announce Staffing Reductions

Posted in Unions

Bloomberg News and The Washington Post report that the AFL-CIO will be downsizing its Washington D.C. headquarters staff. Per the Post:

The AFL-CIO confirmed Monday that it will dismiss “several dozens” of the roughly 400 staff and furlough others working at its headquarters just north of Lafayette Square in Washington. Earlier, in December, the separate Service Employees International Union warned employees that it “must plan for a 30 percent reduction” in its budget by Jan. 1, 2018.

In addition to eroding membership, the labor federation faces government and court challenges to its ability to collect dues and new “right-to-work” laws in states that make organizing difficult.

AFL-CIO spokesman Josh Goldstein on Monday blamed the job cuts on “the concerted attacks of corporate America on our rights” and said also that “it’s the changing economy and changing workforce and we’re having to react to that.”


House of Representatives Passes CRA Resolution To Invalidate Enjoined Contractor Blacklisting Rule

Posted in Department of Labor, Executive Orders, Government Contracts, House of Representatives, Legislation, Senate, White House

On February 2, 2017, the House of Representatives passed a resolution of disapproval (H.J. Res. 37) pursuant to the Congressional Review Act, to preclude enforcement of the Federal Acquisition Regulatory (FAR) Council’s final rule implementing President Obama’s “Fair Pay and Safe Workplaces” executive order.  As outlined in greater detail in earlier posts, the rule would require offerors on contracts or subcontracts estimated to exceed $500,000 to disclose “any administrative merits determination, arbitral award or decision, or civil judgment” against the contractor under fourteen enumerated labor and employment statutes and Executive Orders (“labor law violations”), for the three years preceding the contract bid. These disclosures, and any additional information supplied, would be taken into account by contracting officers in making responsibility determinations and awarding contracts.

In October 2016, a federal judge in Texas enjoined most parts of the rule.  This resolution, however, would officially remove the rule from the Federal Acquisition Regulation and prevent its future enforcement.  A largely party line vote approved the resolution, 236-187. Rep. Virginia Foxx (R-NC), chairwoman of the House Committee on Education and the Workforce, said of the passage:

This flawed and unnecessary blacklisting rule has always been a solution in search of a problem. As we’ve said repeatedly, the best way to ensure fair pay and safe workplaces is to enforce the existing suspension and debarment system. This rule would make that system simply unworkable, which would hurt workers, taxpayers, small businesses, and our Armed Forces. Congress has a responsibility to put a stop to misguided rules, and today’s vote is an important step. Let’s reject this flawed rule and encourage the new administration to use the tools it already has to protect workers and hold contractors accountable.

A similar Senate resolution (S.J. Res. 12), introduced by Sen. Ron Johnson (R-WI), is pending before the Senate Committee on Homeland Security and Governmental Affairs.

National Labor Relations Board Member Philip Miscimarra Named Acting Chairman

Posted in NLRB Administration, Presidential Appointments

On January 26, 2017, President Trump named sole Republican Board Member Philip A. Miscimarra to serve as Acting Chairman of the National Labor Relations Board.  Chairman Miscimarra, whose term expires on December 16, 2017, said of his appointment:// //

It is an honor to be named NLRB Acting Chairman by the President.  I remain committed to the task that Congress has assigned to the Board, which is to foster stability and to apply the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country.

There remain two Republican vacancies on the Board, and two Democrats serving terms into late 2018 and 2019.  Similarly, the term of National Labor Relations Board General Counsel Richard Griffin — a Democrat appointee, and the former head lawyer for the International Union of Operating Engineers — does not expire until November 2017.  As all White House appointments have become somewhat bogged down in the confirmation process, there has been little discussion about these additional Board positions.  Thus, when the two vacancies might be filled, and whether or not President Trump will have an opportunity to replace Mr. Griffin as General Counsel before November are open questions.

Additional coverage:

Congressional Labor Committees Announce Changes

Posted in House of Representatives, Senate

In early January, Chairman Lamar Alexander (R-TN) announced the addition of freshman Sen. Todd Young (R-IN) to the Senate Health, Education, Labor, and Pensions (HELP) Committee.  Sen. Alexander said:

I welcome Sen. Young to our committee and look forward to working with him on reforming our health care system to give Americans more choices of low-cost insurance, making it easier and simpler for more students to attend college, and working with the new Administration to help grow jobs and raise family incomes. Senator Ted Kennedy, who served for many years as the chairman of the Senate Health, Education, Labor, and Pensions Committee, once said that the committee had 30 percent of the legislative jurisdiction of the Senate. The work we do touches the lives of virtually every American.

Additionally joining the HELP Committee is Sen. Maggie Hassan (D-NH).

Likewise, the House Committee on Education and the Workforce welcomed a new chairperson, Rep. Virginia Foxx (R-NC), who, in turn, welcomed its new members:

We have assembled a strong team to advance the commonsense solutions our nation’s workers, students, families, and small businesses urgently need…. This committee will play a central role in Congress’s broader efforts to grow the economy, advance patient-centered health care, and promote greater prosperity for all Americans. Working closely with our members, subcommittee leaders, and all our colleagues, the committee will do its part to move the country in a better direction.

Rep. Tim Walberg (R-MI) will serve as chairman for the Subcommittee on Health, Employment, Labor & Pensions (HELP), while Rep. Gregorio Kilili Camacho Sablan (D-N.M.I.) will be Ranking Member.