News & Analysis

The Good, the Bad and the Ugly

Leadoff memorandum of new NLRB General Counsel Robb draws immediate fire from Democrats. On November 8, the Senate confirmed Peter Robb as the new General Counsel to the National Labor Relations Board. As General Counsel, Mr. Robb has broad prosecutorial discretion with respect to complaints of unfair labor practices coming before the Board for decision. Thus, he is to a large extent in a position to decide which cases and issues involving interpretations of the National Labor Relations Act warrant administrative litigation before the Board.

Over the past eight years, when a Democratic majority controlled the Board and Democrat Richard Griffin was the General Counsel, employers, as well as employees seeking to refrain from union and other concerted activity, found themselves in a less than hospitable legal environment. But a recent General Counsel Memorandum from Mr. Robb indicates that change has come and that more may be on the way. The Memorandum requires the review of many Obama-era decisions by the headquarters Division of Advice. It also immediately rescinded several of Mr. Griffin’s memoranda that explained his policy initiatives and some questionable legal interpretations.

Mr. Robb’s prompt and decisive action in issuing the Memorandum immediately drew fire from Democrats in Congress. Sens. Patty Murray (D-Wash.) and Elizabeth Warren (D-Mass.), have demanded that he provide them with correspondence he had with any third parties regarding subjects addressed in the Memorandum and ask for an explanation as to how he could have developed his positions so quickly after his confirmation. The Senators contend that Mr. Robb had indicated he had an open mind in pre-confirmation interviews with their staff. They call the Memorandum “sweeping” and assert that its “abrupt issuance ... and the efforts it chooses to target raise serious and troubling questions.” Providing no examples, the Senators assert that “[t]he Trump Administration has a troubling track record of undermining worker protections, and we are deeply concerned that your policy changes will ultimately enable bad actors to violate workers’ fundamental labor rights with impunity.” They complain that it appears to them “that in a mere nine workdays” as General Counsel, Mr. Robb “developed opinions on a dozen complex legal questions,” leading to rescission of seven General Counsel memos and five other NLRB initiatives that they assert, again providing no examples, “expand workers’ rights.” The letter includes an expansive request for documents, asks for an explanation as to how Mr. Robb chose the prior eight years as the window for his stated review of precedential Board decisions, and whether he consulted with Board Regional Directors.

NLRB Republican majority goes to work and asks for comment on the so-called “quickie election” rule. On December 12, the NLRB, in a 3-2 vote along party lines, appeared to move toward revising or rescinding the Obama-era regulations governing Board representation elections – the so-called “quickie election” rule. As a result of that vote, the Board decided to issue a Request for Information seeking public comment as to whether the Board should revise the regulations or rescind them.

Please Note: Instructions for responses to the Request for Information are included in the RFI itself and are also posted on the NLRB's website. Responses are limited to 25 pages and must be received on or before February 12, 2018.

Democratic Members Mark Gaston Pearce and Lauren McFerran dissented from the decision to issue the RFI. Member Pearce argued that the RFI should be titled a “Notice and Quest for Alternative Facts,” contending that the current rule reduced the median time from petition to election by more than three weeks and had not caused the “procedural dysfunction” that critics had predicted. (He apparently has not been involved in front-line handling of a representation election case in recent years, where “procedural dysfunction” is commonplace). Member McFerran argued that the notice “establishes an unnecessarily rushed comment process that is likely to frustrate those interested parties who might actually hope to provide input.” She asserted that criticism of the current regulations is “unfounded” and that there is no justification for the Board to revisit the rule.

The Obama-era election regulations, effective since 2014, were intended to ease the election process for organized labor by (1) speeding up pre-election steps, (2) establishing complex rules for employers and their legal counsel to navigate, and (3) pushing back legal challenges related to the election process, including supervisory status and eligibility issues, until after the elections. The Board, through its Regional Offices, abandoned prior polices that generally assured a 25-day period between the issuance of an election order and the first day of the election.

The rule also requires employers to release multiple types of employee contact information to union organizers (telephone numbers, email addresses, and home addresses), potentially releasing information that employees do not want to have released.

Review of the rule was not wholly unanticipated. Opponents have argued that the rule is fundamentally unfair to employees who, with the “speed-up” in election processing have little, if any, time to digest the competing messages and make informed choices regarding the important issue of union representation. Opponents also argue that it is prejudicial to force employers to jump through multiple “legal hoops” and delay making challenges until after much of the “damage” has already been done.

Proponents of the rule argue that union representation is a matter between employees and the unions, and that employers don’t even have legal standing.

But with the Republican majority on the Board, interested observers should look for change or rescission in the coming months. In this regard, we note that Chairman Philip Miscimarra’s term ended on December 16. That leaves the Board with a “2-2 tie” of Democrats and Republicans. President Trump is reportedly considering management-side lawyer John Ring of Morgan Lewis & Bockius, LLP, as his nominee to fill the third Republican vacancy.

...Interesting times at the Board.

Miscimarra is gone, but he left a legacy for employers in his final days. We will cover these, and other recent Board actions, in more depth in a forthcoming Client Bulletin, but meanwhile here are the highlights:

Hy-Brand Industrial Contractors: On December 14, the Board majority overruled the Browning-Ferris “joint employer” decision of 2015 and its use of a liberal joint-employer standard. In Browning-Ferris, the Board found joint employer status when an employer had the power to effectively control another employer’s employees -- even if that power was not actually exercised. As of December 14, the Board has returned to a standard generally requiring “exercised” and “direct” control of employment for joint employer status.

The Board majority opined that the Browning-Ferris standard was a “distortion of common law as interpreted by the Board and the Courts, it is contrary to the Act, it is ill-advised as a matter of policy, and its application would prevent the Board from discharging one of its primary responsibilities under the Act, which is to foster stability in labor-management relations.”

The two Democratic Members, as expected, dissented.

The Boeing Company:  Also on December 14, the Board majority overruled the “reasonably construe” standard adopted in 2004 by the Bush-era NLRB for evaluating whether employer polices or work rules were “overly broad” and thus interfered with employee exercise of Section 7 rights under the NLRA. The Board considered a Boeing no-camera rule applicable at sensitive manufacturing sites. An administrative law judge had found that the no-camera rule was overly broad, applying Lutheran Heritage Village, because employees would “reasonably construe” the rule as prohibiting them from using cameras to document workplace issues. The new Board majority noted that the Lutheran Heritage standard was inappropriate because it “prevents the Board from giving meaningful consideration to the real-world ‘complexities’ associated with many employment policies, work rules and handbook provisions.” Under the new standard that will apply, the Board will consider “the nature and extent of the [rule’s] impact on NLRA rights” and the employer’s “legitimate justifications associated with the rule [or policy].”

PCC Structurals: On December 15, Chairman Miscimarra’s last day in office, the Board by a  3-2 vote rejected the so-called “micro-bargaining unit” policy that was announced in Specialty Healthcare. In Specialty Healthcare, the Obama-era Board approved smaller bargaining units, making it possible for unions to “cherry pick” groups of employees for organizing purposes. To defeat a “micro” unit, the employer had to demonstrate that excluded workers shared an “overwhelming community of interest” with employees included in the unit. In its decision Friday, the majority indicated that it will no longer apply that standard but instead will allow employers to show that there is a “community of interest” between employees included in and excluded from the proposed bargaining unit. The Board will retain discretion to evaluate the facts in individual cases, “taking into consideration the interests of employees both within and outside the petitioned-for unit, in light of the policies and purposes of the [National Labor Relations Act].”

Raytheon Network Centric Systems: Also on Chairman Miscimarra’s last day, the Board majority overruled a standard addressing when an employer must bargain over actions that are consistent with the employer’s past practice. Under the Obama-era standard, established in 2016 in E.I. du Pont de Nemours, the Board held that an employer action consistent with an established past practice constitutes “a change,” and thus requires an employer to provide the union with notice and an opportunity to bargain, if either (1) the past practice was established under a management-rights clause in a collective bargaining agreement that has expired, or (2) the action involves exercise of employer discretion. In Friday’s decision, the new Board majority held that an action is not “a change” requiring notice and opportunity for bargaining if the action is similar in kind and degree to an established past practice consisting of comparable unilateral action. The majority said that this new standard applies regardless of whether a collective bargaining agreement was in effect when the past practice was established or involves employer discretion.

The Raytheon case involved changes to employee healthcare benefits made in 2013. The Board majority concluded that Raytheon’s actions were a continuation of its past practice involving similar unilateral changes made at the same time every year from 2001 to 2012. Thus, the new Board majority found that Raytheon did not violate the NLRA by failing to give the union notice and the opportunity to bargain.

Musicians pirouette past handbilling restriction. A Board administrative law judge has upheld the right of musicians to handbill at the entrances to the Tobin Center in San Antonio to protest the use of recorded music, instead of a live orchestra, at performances by the city ballet of Tchaikovsky’s Sleeping Beauty. The musicians, who were not employees of the San Antonio Ballet or of the Tobin Center, were directed to move back from the entrances to public property across the street on the ground that crowding at the entrances presented risks, including risks of terror attacks. The American Federation of Musicians, Local 23, filed an unfair labor practice charge, and the ALJ determined that the private property rights of the Center were not sacrosanct. Although the musicians were not employees, they regularly performed at the Center and for the ballet, and therefore the ALJ found that they should have the same rights as off-duty employees. Moreover, the ALJ found, the Center failed to produce any persuasive evidence that the handbilling significantly interfered with Center operations or presented a terrorism risk. Will the Republican-majority Board become the Center’s handsome prince?

A “body cam” for every manager, supervisor, and employee – is it time? People of nearly all generations in the United States, from the baby boomers on down, have grown accustomed to the use of video and audio recordings as “proof.” Police are already being fitted with body cams, security cameras now sweep many physical areas, and conference calls simply require clicking a button to record. In court cases and arbitration proceedings in labor and employment matters, recorded evidence can be determinative, avoiding the credibility determinations of “he said/she said” and their variants. Are body cams in work environments next?

Well, Edesix Ltd., an Edinburgh company, is on the market with body cams that are being put into the uniforms of all ground staff and flight attendants for Guernsey air carrier Aurigny. News of passenger disturbances on flights probably makes this a “no-brainer.” Similar body cams apparently are in use throughout Europe in health care, retail, and other settings. Employers should plan for more widespread use of body cams in the workplace and society generally. As part of their planning, U.S. employers should consider the accompanying legal issues, such as the duty to bargain with union representatives, state and local legal restrictions on surreptitious recordings, privacy interests and property rights in likeness issues, among others. “Candid camera” is not just an old TV show any more.

Union organizers, unite! The Fight for $15 campaign has had its leadership ranks thin due to resignations and terminations of senior union officials apparently related to allegations of sexual harassment or improper behavior. As a result, organizers and others employed by the National Fast Food Workers Union of the Service Employees International Union now seek to be represented by – a union. A labor organization called The United Media Guild has been selected by the Fight for $15 organizers, communications workers, data specialists, and other office workers for collective bargaining. The Guild established representation by card check on November 29, for a bargaining unit of approximately 52 employees in the campaign’s five offices nationally. The Union of Union Representatives, which represents other SEIU workers, was trying to organize the workers, but the Guild apparently “beat them to it.”

In a press statement, the SEIU said that its National Fast Food Workers Union voluntarily “recognized UMG as the exclusive bargaining agent of its staff based on a majority showing of interest. The parties look forward to working together in a constructive bargaining relationship based on mutual respect.” According to the Bloomberg BNA Daily Labor Report, because former leaders of the Fight for $15 “have resigned or have otherwise been ousted because of sexual harassment or inappropriate work behavior, it’s not clear who currently leads that division of SEIU.” As we previously reported, several of the SEIU’s top leaders left the group earlier in the fall, including Executive Vice President Scott Courtney.

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