Labor Relations Today

Labor Relations Today

Submission Period Finally Closed On Board’s Quickie Election Rule Request For Information

Posted in Uncategorized

On December 14, 2017, the National Labor Relations Board published a Request for Information in the Federal Register, seeking public comment regarding the December 2014 overhaul of its representation election procedures.  The Board twice extended the deadline for submission of feedback.  Before the window closed last night, there were almost 7,000 submissions.  This number is obviously exaggerated by the number of form submissions sent in at the behest of organized interests.  A quick glance at the Board’s catalog page shows consecutive submission of files with the same document name (e.g., “do_not_rescind_the_2014_rules_997.pdf,”  “do_not_rescind_the_2014_rules_998.pdf,”  “do_not_rescind_the_2014_rules_999.pdf,” etc.).

Regardless, there has been a significant amount of comment, and we will now need to watch whether the Board uses this feedback as the basis for further internal analysis and activity, or issuance of a formal Notice of Proposed Rulemaking.

Selected submissions:

John Ring Sworn In, Board Back To Full Complement…..Or Is It?

Posted in NLRB Administration, Obama Board Reversal, Senate

Labor lawyer John Ring was sworn in today as Chairman of the National Labor Relations Board for a term ending on December 16, 2022.  The Board’s announcement includes the following remarks from the new Chairman:

“I thank the President for the opportunity to serve as Chairman of the NLRB,” Ring said. “I am honored to serve alongside the dedicated professionals at the Agency. My career as a labor lawyer has given me a great appreciation for the work of the NLRB and its important mission. I look forward to working with my colleagues to ensure that the NLRA is interpreted and enforced as it is written and consistent with its amendments.”

Like former Chairman Miscimarra, Mr. Ring was most recently a partner at law firm Morgan Lewis. While Chairman Miscimarra was able to navigate the various potential conflicts and recusal issues following his tenure as a prominent labor lawyer in private practice, the political landscape has shifted significantly in just the last few years. As seen recently, Labor and its allies in the Democratic Party seem intent on brandishing a broad recusal argument in order to preclude Republican majorities sufficient to hand down decisions unfriendly to unions.  It is very likely we will see efforts to pressure Chairman Ring into recusals like the recent campaign against Member Emanuel.

Upon his swearing in, Chairman Ring also recognized Member Kaplan for his recent interim service as Chairman.  Member Kaplan will continue to serve his term which expires on August 27, 2020.  The next term to expire is that of Member Mark Gaston Pearce, on August 27, 2018.

Connecticut Considering Law To Limit Employer Speech On Union Organizing

Posted in Representation Elections, State/Local Issues, Unions

Connecticut state legislators are considering a bill to outlaw group meetings by employers to discuss a variety of matters including the issue of union representation.  “An Act Concerning Captive Audience Meetings,” HB5473, would allow workers to file a lawsuit to challenge discipline for not attending a mandatory employer meeting where union issues are discussed. As introduced, the bill states:

no employer, or agent, representative or designee of such employer, shall require an employee to attend an employer-sponsored meeting with the employer or its agent, representative or designee, the primary purpose of which is to communicate the employer’s opinion concerning political or religious matters, except that an employer or its agent, representative or designee may communicate to an employee any information concerning political or religious matters that the employer is required by law to communicate, but only to the extent of such legal requirement.

“Political matters” include: “[e]lections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization….”

There is strong support for the notion that such a law would be preempted by the National Labor Relations Act, and possibly precluded by the First Amendment.  The Connecticut Attorney General concluded just about as much back in 2011, the last time there was any momentum for such a proposal. Labor supporters, however, argue that the mandatory nature of such meetings are not speech, but rather conduct, subject to regulation under the NLRA.

NLRB Extends Deadline For Quickie Election Feedback to April 18, 2018

Posted in Expedited Elections, NLRB Rule-Making, Representation Elections

The Board has once again extended the time for filing responses to its December 14, 2017 Request for Information Regarding Representation Election Regulations. The original submission deadline of February 12, 2017, had previously been extended to March 19, 2018.  The Board has now extended that deadline to April 18, 2018.

The Board is seeking feedback to three questions regarding the 2014 Election Rule, which modified the Board’s representation-election procedures located at 29 CFR parts 101 and 102:

1. Should the 2014 Election Rule be retained without change?

2. Should the 2014 Election Rule be retained with modifications? I14f so, what should be modified?

3. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?

This Request for Information was approved in December 2017 by former Board Chairman Philip A. Miscimarra and Members Marvin E. Kaplan and William J. Emanuel, while Members Mark Gaston Pearce and Lauren McFerran dissented.

Employer Did Not Violate The Act When It Terminated Employee Organizer Who Violated Hotel Security Protocols To Deliver Petition

Posted in Unfair Labor Practices, Unions

In KHRG Employer, LLC d/b/a Hotel Burnham & Atwood Cafe, 366 NLRB No. 22 (Feb. 28, 2018), a unanimous panel of the Board held that the employer did not violate the Act when it fired an employee who breached internal security measures to lead a group of employees to present management with a petition. The employee and union were attempting to organize the employees at the employer’s hotel, and held a rally outside the hotel which drew approximately 100 attendees.  Shortly after the rally, an employee organizer led a group of approximately six co-workers and fourteen non-employees into the hotel.  The employee organizer lied to a security guard, indicating that the group was composed of employees only, and used a security passcode to unlock a door to a secure area.  The employee organizer was subsequently terminated for committing a “serious security breach.”

The Board explained the relevant standard thus:

When, as here, an employer defends a discharge based on employee misconduct that is a part of the res gestae of the employee’s protected concerted activity, the employer’s motive is not at issue. Instead, such discharges are considered unlawful unless the misconduct at issue was so egregious as to lose the protection of the Act.

There was no question that the delivery of the petition to management was “protected activity.” But considering the premeditated nature of the conduct, the intentional misrepresentation to the security guard, and the improper use of the passcode, the Board held that the employee

flagrantly violated the hotel’s security protocol and unnecessarily placed at potential risk the security of other employees and the Respondent’s property, including valuables, confidential files, and financial documents. This breach of security cannot be dismissed as an impulsive act. It was a predetermined course of action.

Therefore, the Board found that the employee lost the protection of the Act, and his termination did not violate Section 8(a)(1).

National Labor Relations Board Vacates Earlier Decision Overruling Browning-Ferris Joint Employer Standard

Posted in Joint Employer, NLRB Administration, NLRB Decisions, Obama Board Reversal

In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), a three-Member majority of the Board overruled Browning Ferris Industries of California, 362 NLRB No. 186 (2015) and announced a return to the Board’s long-standing analysis for determining joint employment relationships.  On February 9, 2018, however, the Board’s Office of Inspector General (OIG) issued a report criticizing current Board Member William Emanuel’s participation in that decision, in part, because Member Emanuel’s former law firm represents one of the parties in the Browning Ferris matter.

Although neither that party nor any of the other parties are litigants in the Hy-Brand case, the OIG Report asserted that the

wholesale incorporation of the dissent in Browning-Ferris into the Hy-Brand majority decision consolidated the two cases into the same ‘particular matter involving specific parties.’

In conclusion, the OIG Report stated that Member Emanuel should have recused himself from the Hy-Brand case, and that his failure to do so represented a “serious and flagrant problem and/or deficiency in the Board’s administration of its deliberative process….”

In response, by Order dated February 26, 2018, the Board has vacated and set aside its earlier Decision and Order. 366 NLRB No. 26 (Feb. 26, 2018):

The Board’s Designated Agency Ethics Official has determined that Member Emanuel is, and should have been, disqualified from participating in this proceeding. After careful consideration, and exercising the Board’s authority under Section 102.48(c) of the Board’s Rules and Regulations and Section 10(d) of the Act, we have decided to grant the Charging Parties’ motion in part and to vacate and set aside the Board’s December 14, 2017 Decision and Order.

Because we vacate the Board’s earlier Decision and Order, the overruling of the Browning-Ferris decision is of no force or effect.

Given this result, one should expect that Sen. Elizabeth Warren (D-MA) and other allies of Labor will continue to focus attention on the recusal issue in order to prevent three-Member Board majorities from overruling many of the radical departures from precedent handed down by the Board during the Obama Administration.  Employers should be prepared to continue to operate under these new standards for at least the next year or two of the current administration, as the Board wrestles with this issue in the variety of cases awaiting adjudication.

National Labor Relations Board Extends Time For Submission of Feedback Regarding Quickie Election Rules

Posted in NLRB Rule-Making, Representation Elections

On December 14, 2017, the National Labor Relations Board published a Request for Information in the Federal Register, seeking public comment on these general questions regarding the December 2014 overhaul of its representation election procedures:

  1. Should the 2014 Election Rule be retained without change?
  2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
  3. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?

While comments were initially due February 12, 2018, the Board has extended the time for submission of feedback to March 19, 2018.

NLRB Orders New Election Where Polls Opened Seven Minutes Late

Posted in NLRB Decisions, Representation Elections

One Democrat Member and one Republican Member of the National Labor Relations Board joined together to set aside an election won by the union 14-12 because the Board agent opened the polls seven minutes late and there were four employees–a number that could affect the result–who did not vote.

Members Lauren McFadden and William Emmanuel found in Bronx Lobster Place, LLC, NLRB Case No. 02-RC-191753 (Feb. 2, 2018), “that the late opening of the polls, combined with the possible disenfranchisement of potentially dispositive voters, warrants setting the election aside” despite evidence that there were no employees at or near the polls trying to vote during those seven minutes. Relying on a 2001 Board decision, Pea Ridge Iron Ore Co., 335 NLRB 161 (2001), which also involved a seven minute delay in the opening of the polls, the Board reaffirmed that:

[w]hen election polls are not opened at their scheduled times, the proper standard for determining whether a new election should be held is whether the number of employees possibly disenfranchised thereby is sufficient to affect the election outcome, not whether those voters, or any voters at all, were actually disenfranchised.

Because there was no evidence that any employees were actually disenfranchised by the late opening, Member Pearce dissented based on the Board’s decision in Arbors at New Castle, 347 NLRB 544 (2006). The Board majority noted, however, that there was actual evidence as to why the employees did not vote in Arbors, unlike the record currently before it, and thus Arbors does not compel a different result.

NLRB General Counsel Mulling New ULP Case Processing Procedures

Posted in NLRB, NLRB Administration

In a January 29, 2018 email, the Office of the General Counsel of the National Labor Relations Board informed its Regional offices of potential changes it is considering with respect to how the NLRB processes unfair labor practice charges. The General Counsel had solicited suggestions “from all levels of the organization,” and compiled a “draft summary of suggestions” in a memo attached to the January 29th email.

The most significant change suggested is to require “institutional charging parties, such as unions, employers, other organizations, and employees who have a personal representative” to file a detailed position statement or affidavit with the unfair labor practice charge. The position statement would have to include a recitation of facts, identification of relevant witnesses, names of all alleged discriminatees, names and titles of relevant managers/supervisors/employer agents, the remedy sought, and relevant documents such as collective bargaining agreements and relevant grievances. Unrepresented individual charging parties would also have to file a position statement, but Regional personnel would be expected to assist them in completing the position statement.

The memo also included suggestions that investigative subpoenas be used sparingly and only after approval is provided by Operations, and that investigations would not seek employer EIN numbers or manuals, policies, handbooks, etc. unless directly related to alleged violations.

Other significant suggestions include:

  • potential dismissal of the charge if the charging party fails to respond to any request from the Region within two business days;
  • when contacting the charged party, the Board agent should go over the allegations, seek resolution including a bilateral resolution, and allowing non-Board resolutions to be memorialized by email;
  • if the Board agent and the supervisor decide to pursue an investigation of the charge, set a deadline for ultimate disposition;
  • prior to the opening of a hearing, Regions may take settlements of any kind that are not inconsistent with the Act.

The General Counsel’s office has requested comments to the suggestions by Friday, February 9.

House of Representatives Passes Bill To Restore Recognition Of Tribal Sovereignty In Labor Law Enforcement

Posted in Filibuster, House of Representatives, Legislation, NLRA, Senate, Unions

Earlier this month, a bipartisan 239-173 majority of the House of Representatives passed the text of the Tribal Labor Sovereignty Act (H.R. 986) as an amendment to a Senate bill amending a 2010 law regarding Apache tribal water rights (S. 140).  The Tribal Labor Sovereignty Act would amend the National Labor Relations Act to expressly clarify the exclusion of tribal employers from the Act’s definition of “employer.”  Specifically, the bill would add “any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands” to the definition’s list of exclusions set forth in Section 2(2) of the Act as follows:

…the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof…

Until 2004, the NLRB’s position regarding jurisdiction over Indian tribes as employers was that tribes were exempt from the NLRA.  That year, however, the Board shifted course entirely, asserting jurisdiction over the San Manuel Indian Bingo and Casino — a tribal casino owned and operated by the San Manuel Band of Serrano Mission Indians on tribal land in California.  The Court of Appeals for the D.C. Circuit affirmed.

Proponents of this legislation argue that it simply affords Tribal governments the same respect that the National Labor Relations Act affords state and local governments.  Upon its passage, House Committee on Education and the Workforce Chair Rep. Virginia Foxx (R-NC), and Subcommittee Chair Rep. Tim Walberg (R-MI), issued the following statement:

This is a long overdue solution to protecting the rights of Native Americans, and respecting their laws the same as state and local governments. The bureaucratic overreach by the NLRB costs Native American businesses significant time and money to fight the federal government’s arbitrary intervention in labor relations involving Native American tribes. Today’s bill strips unelected bureaucrats of the power they abused and reaffirms a respect for the sovereignty of Native American tribes.

The Apache Water Rights bill had passed the Senate by unanimous consent.  The amended bill, including the Tribal Labor Sovereignty Act language, will now head back to the Senate.  It is safe to say that it will not pass unanimously this time around.  Twenty-three (23) Democrats from conservative districts and states with significant Native American communities joined the Republican caucus in the House to vote for this bill, and the principles underlying the bill previously found sympathy in some courts and the Obama administration’s Department of the Interior.  The bill’s sponsors will need at least nine (9) Democrat votes to break a filibuster in the Senate — a tall order in this polarized mid-term election year.  Plus, organized labor has kicked its opposition to the bill into overdrive, increasing that challenge.  UNITE-HERE has already cut off campaign contributions to all Democrats who voted for the measure in the House, threatening the same for any Senate supporters — and local media outlets report that Democrat Senators are already expressing opposition to the bill.