Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Three Days Notice of Election Enough?

Posted in Elections, Union Organizing

Because the team I was pulling for in the NCAA tournament exited last week, I was only loosely paying attention to the game last night.  As I cruised Twitter, this tweet from Acting NLRB Chair Miscimarra (R) caught my eye:

Sure enough, when I read the case to which he links, it turned out to be a dispute over the application of the NLRB’s election rule.  As readers of this blog know, this rule has also been referred to as the “quickie” or “ambush” election rule.

Acting Chair Miscimarra’s dissent is a quick and interesting read.  But, for those pressed for time, here is a short summary.  The Teamsters filed a petition for a union election.  The NLRB regional office, processing the petition under the new election rule, which places a premium on scheduling an election as soon as possible, set a hearing for ten days after the petition was filed.  It sent notices to the employer for posting in the workplace about the election petition.

Both before and at the hearing, however, the employer and the union agreed to add some employees to the unit that were previously excluded and remove other employees previously included.  While the employer sought to introduce evidence at the hearing regarding how the election rule prejudiced it as applied in this particular case, the Regional Director refused to permit that evidence.  Instead, three days after the hearing, the Regional Director issued a direction of election and set the election to take place only seven days later.

As a result, some of the employees would have only received notice that they would be included in the election as little as three days prior to the vote.  The NLRB majority refused to delay the election to provide for more time, noting instead that the employer could file an objection to the election after it was over.  Acting Chair Miscimarra, however, dissented and would have granted the delay.  Whether the employees got seven days notice or three days, it wasn’t sufficient and the process unfairly prejudiced the employer in this case.

Interestingly, the vote ultimately came out against the union.  However, the case underscores the impact of the election rule on the timing of the vote.  It is, therefore, an important reminder to labor professionals about the need to be prepared for union organizing activity.

Former NLRB Acting General Counsel’s Service Invalid

Posted in Courts

Former NLRB Acting General Counsel Lafe Solomon was not permitted to serve in that capacity once former President Obama nominated him for the position of General Counsel of the NLRB.  So held the U.S. Supreme Court yesterday in a 6-2 decision.  The decision is just the most recent in a line of cases on the NLRB’s authority to act when political disagreements in the U.S. Senate preclude the confirmation of the President’s nominees.

The case arose out of an unfair labor practice (“ULP”) complaint filed against an employer.  A Regional Director of the NLRB issued the complaint pursuant to authority delegated from the Acting General Counsel.  The employer challenged the complaint on the ground that the Acting General Counsel was not permitted to serve in that capacity because of his then-pending nomination to the General Counsel position itself.

The employer relied upon a federal law called the Federal Vacancies Reform Act of 1998.  That statute regulates who can serve in an “acting” role while the U.S. Senate considers the nomination of the President for the position in question.  The idea is to balance the need for agencies to continue operations while the Constitutional process of confirming the President’s nominations continues.

The legal issue in the case turned on whether a portion of the statute — prohibiting those who are nominated for the position in which they are serving in an acting capacity — was intended to apply broadly or narrowly.  The Court found that the plain language of the statute provided for a broad application.

In this particular case, the Supreme Court’s action resulted in the employer successfully defending against the NLRB’s complaint.  The Court affirmed the appeals court’s decision to vacate the NLRB’s order against the employer.  The NLRB did not appeal this portion of the appeals court’s decision, even though it had argued in the lower court that vacating the order wasn’t necessary even if the Acting General Counsel’s service was invalid.  Thus, how the Supreme Court would have ruled on this question is unknown.

As a result, labor professionals should exercise caution in placing to much practical significance in the decision.  Unlike in prior decisions involving the NLRB’s membership, where the Court’s decision invalidated large swaths of NLRB decisions, various considerations may well limit the impact of the decision here.

For example, the employer in this case made the validity of the Acting General Counsel’s service a specific “affirmative defense” to the ULP complaint.  As the lower court observed in its decision, this case was not the “Son of Noel Canning.”  The court “doubt[ed]” that a party that failed to timely raise the objection the employer did in this case would have “enjoy[ed] the same success.”  Accordingly, those with questions about the application of this holding to their specific situation should seek out qualified labor law counsel to assist.

Briefing Schedule Set in Persuader Rule Appeal

Posted in Courts, Department of Labor

The Fifth Circuit Court of Appeals has set the briefing schedule in the government’s appeal of the nationwide injunction of the persuader rule.  The government’s brief is due April 17, 2017.  Response briefs are due 30 days later.  Reply briefs must be filed 14 days after the response brief.

The briefing schedule may finally tell us whether the Trump Administration intends to defend the rule proposed under the Obama Administration. The government could simply withdraw its appeal and let the lower court’s injunction stand.  If the Trump Administration does pursue the appeal, it will be interesting to see whether it adopts the former Administration’s arguments in favor of the rule.  We will continue to provide updates as they develop.

Changes to Ohio’s Prevailing Wage Law Proposed

Posted in Prevailing Wage

Last week, State Senator Matt Huffman (R) introduced S.B. No. 72. The bill proposes modifying several statutes to limit the scope of the prevailing wage obligation in Ohio.  The proposal comes on the heels of Kentucky’s elimination of its prevailing wage law.Commercial building construction site

While there are a number of changes made in the bill, the primary one is to eliminate the requirement that political subdivisions (like Ohio’s cities) pay prevailing wage on “public
improvements.” Instead, S.B. 72 contemplates that each political subdivision (as well as each state college or university or special district) could elect to apply the prevailing wage obligations to “any” improvement that is “undertaken by, or under contract for,” the political subdivision, special district, or college/university.

The last major rewrite of the prevailing wage law was in 2011, and that rewrite, like the one proposed, also narrowed the scope of the statute. S.B. 72 was referred to the Senate Finance Committee yesterday.  Thus, it is still very early in the legislative process.

If these changes pass, the legal landscape will turn from one of uniformity to one in which the prevailing wage issue will need to be decided on each project within each of Ohio’s hundreds of counties, cities, townships, and other political subdivisions.

An interesting issue could arise when more than one political subdivision is involved in a project.  For example, some economic development incentive arrangements involve multiple political subdivisions as parties to agreements. It is unclear from the proposed legislation which political subdivision’s decision will control whether a project is constructed using prevailing wages when the project is “under contract for” more than one political subdivision.

Stay tuned to vorysonlabor.com for additional updates as S.B. 72 progresses.

NOTE:  This post was updated on March 8 to reflect that the bill was referred to the Senate Finance Committee on March 7, 2017.

“A Day Without a Woman” May Bring Employers a Day Of Legal Troubles

Posted in NLRB

Heard about “A Day Without a Woman”?  Did your business feel any impacts of “A Day Without Immigrants”?  Not sure how, as a labor professional, you should respond to these developments?  Then you should check out this Labor and Employment Alert that we posted yesterday on our Firm’s website.

In the Alert, we discuss the NLRB’s approach to political protests of this type and how the NLRA could protect employee participation in these protests in certain situations.  We also discuss (and link to) a guideline memorandum that the NLRB’s GC issued near the end of the George W. Bush administration.

Advance planning and careful consultation is certainly advisable for any employer concerned about how to react to the coming protest, and others that are on the horizon.

Puzder, and Acosta, and Boeing, and Griffin, Oh My!

Posted in Department of Labor, NLRB, Union Organizing

What a last couple of weeks on the labor law front.  Here is a quick round up of significant developments, just to make sure you are caught up:

Puzder Out, Acosta Up Next

President Trump’s first DOL secretary nominee, Andrew Puzder, withdrew himself from contention earlier this week.  Press reports suggest that there was insufficient support in the Republican Senate to get him over the 51-vote hurdle for confirmation.

In his place, President Trump quickly nominated Alexander Acosta.  Mr. Acosta has a significant record of public service positions, having served as a U.S. Attorney, an Assistant Attorney General in the U.S. Department of Justice’s Civil Rights Division, and a Bush-appointee to the NLRB for less than a year in 2002-2003.

Boeing

With all the hoopla in Washington, D.C., you could be forgiven if you had not noticed the IAM’s stunning loss at the Boeing plant in South Carolina.  In an NLRB-conducted election, the union lost by a 3-1 margin.  This is the plant that drew the attention of the NLRB’s former Acting GC when Boeing shifted work to this non-union plant from a unionized plant in Washington state.  This loss certainly doesn’t help the case of unionism generally, which continues to bleed membership across the board.

Griffin

Speaking of the NLRB, its General Counsel, Richard Griffin, Jr. (D), is busy as his term enters its twilight.  Most recently, the GC’s office released a memorandum directing the regional offices in the proper handling of complaints regarding discretionary discipline, which the NLRB held in August last year were a mandatory subject of bargaining for unionized employers.  At the beginning of the month, the GC’s office released a memorandum on labor law issues in colleges and universities.  The biggest highlight was the GC’s position that Division I scholarship athletes are “employees” under the NLRA.

Has President Trump Forgotten About the Persuader Rule?

Posted in Department of Labor, Rulemaking, Union Organizing

The Trump Administration has acted quickly to address some of the rules promulgated by the Department of Labor (“DOL”) during the Obama presidency. One such rule is the overtime regulation that would more than double the salary threshold for employees to be exempt from overtime requirements.  The overtime rule was invalidated by a Texas district court and is on appeal to the Fifth Circuit Court of Appeal.  The Trump Administration recently requested an extension in the case, indicating it may withdraw the government’s appeal and allow the rule to die.

The Trump Administration took similar action in a lawsuit challenging Obama’s fiduciary rule that requires financial professionals who advise retirement accounts to act in their client’s best interest when recommending investment products. The administration requested a stay of the case while it reviewed the rule.  A Texas federal judge, however, denied the request and upheld the rule as lawful.  We will see if the administration appeals that ruling.

In the meantime, there has been no action taken on an equally important rule.  Readers may recall our previous posts on the persuader rule that, if allowed to stand, would radically alter the interpretation of the Labor-Management Reporting and Disclosure Act.  A federal court permanently enjoined the rule back in November 2016, but that ruling is on appeal.  The Trump Administration so far has not taken any action in that appeal, according to the court’s docket.

While it would be surprising if it chose to pursue the appeal, it is unclear why it has yet to ask for a stay like it did for the overtime and fiduciary rules so that it can consider whether to abandon the government’s appeal.  Withdrawing the appeal would be a relatively simple way for the DOL to provide immediate relief from the rule.

Perhaps the answer lies in the fact that the appeal is still in its early stages.  No briefs have been filed and no oral argument date is set.  But for labor professionals working for employers, intervention by the Administration to withdraw the appeal can’t come soon enough.  Stay tuned while we continue to monitor this case.

NLRB Instructs Regions to Seek Informal Settlement of Class/Collective Action Waiver Cases

Posted in NLRB

Following years of uncertainty, the U.S. Supreme Court will soon decide the legality of arbitration agreements that prohibit employees from joining employment-related class or collective actions.  The NLRB has consistently argued that employee participation in class or collective actions is protected concerted activity and that agreements barring such participation constitute an unfair labor practice.

The courts, meanwhile, have been less consistent.  The Fifth Circuit Court of Appeals has rejected the NLRB’s position on multiple occasions.  However, the Seventh and Ninth Circuits have both backed the NLRB.  On January 13, 2017, the U.S. Supreme Court granted certiorari to resolve this circuit split.

In response to this decision, the NLRB’s General Counsel recently released a memorandum instructing Regional Directors to pursue informal settlement of unfair labor practice charges involving arbitration agreements with class or collective action waivers.  Specifically, Regions are to propose informal settlements conditioned on the NLRB prevailing before the U.S. Supreme Court.  If a charge involves additional unrelated issues, the NLRB has instructed Regions to move forward on those unrelated issues as usual.  Finally, if a charge involves a class or collective action waiver that an employer argues is distinguishable from those at issue before the Court, then Regions are to hold such cases in abeyance.

We will continue to update this blog if the NLRB offers additional guidance prior to the U.S. Supreme Court’s ruling.

Judge Gorsuch and the NLRB Part 2: A Deeper Dive on The Opinions

Posted in Courts

judge-neil-gorsuchLast week, I provided an overview of Judge Gorsuch’s decisions involving the NLRB. This week, I take a deeper dive into the opinions, discussing a few of the holdings below.

As noted in my last post, Judge Gorsuch’s most recent opinion is actually a dissent.  It offers the most interesting insights about his view of the NLRB’s authority. A remedial question under the NLRA was at issue in the case, Community Health Services v. NLRB.  Specifically, the NLRB had determined that the employer unlawfully reduced the work hours for a group of employees.  But, the employees were not fired.

The NLRB held that the employees’ interim earnings — the amount of money the employees earned from sources other than the employer during the time that their hours were reduced — would not be off-set from the back pay the NLRB awarded to the employees. This holding departed from the NLRB’s rule applicable to termination cases, where such interim earnings do offset the back pay owed to the employees.

While the majority would have affirmed the NLRB’s decision, Judge Gorsuch disagreed. In adopting a different rule for hours reduction cases, he wrote in his dissenting opinion, the NLRB failed to live up to three, settled legal principles, namely that federal agencies (i) “must take care to respect boundaries of their congressional charters,” (ii) may not “treat similarly situated classes of persons differently without a rational explanation,” and (iii) may not “depart from their own existing rules and precedence without a persuasive explanation.”  Judge Gorsuch concluded that the NLRB exceeded its statutory authority and offered none of the requisite explanations.

By contrast, in other cases involving the NLRB, the party’s challenge was to the NLRB’s factual finding that the party had violated the NLRA. In these cases, Judge Gorsuch applied a more deferential standard of review known as “substantial evidence.”  The Tenth Circuit, sometimes with Judge Gorsuch authoring the opinion of the court, uniformly upheld the NLRB’s decision using this standard.

Here is how Judge Gorsuch explained the standard or review in one case:

[O]ur job is something like the role of the instant-replay booth in football: the call on the field presumptively stands and we may overturn it only if we can fairly say that no reasonable mind could, looking at the facts again, stand by that call.  So it is that we, like the instant-replay official, often affirm decisions that we might not have made ourselves.

Thus, Judge Gorsuch voted to uphold the NLRB’s decision in cases involving:

  • An employer’s termination of (and failure to hire) union “salts”: individuals who obtained (or wanted to obtain) a job at the employer in order to organize its employees;
  • An employer’s failure to respond to union information requests arising out of grievance processing;
  • A union’s unlawful threat of, and request for, termination of a bargaining unit member for non-payment of union dues (this is the case from which the quote above comes); and
  • A union’s unlawful treatment of a member in connection with its hiring hall.

Finally, in one of the closest comparisons to Chief Judge Garland, Judge Gorsuch had an opportunity, following the Noel Canning ruling, to address whether Member Becker’s recess appointment was unlawful. Chief Judge Garland had ruled that it was not.  Judge Gorsuch discussed the issue, observing at one point that “there seems little reason to doubt the validity of the appointment before us and the power of the Board to issue the order under review.”  Ultimately Judge Gorsuch didn’t decide the issue, however, observing that neither of the parties in the case before the court questioned the NLRB’s authority.

So, what is my takeaway?  Based on the decisions in which Judge Gorsuch participated, it is fair to say that he certainly has some skepticism of the NLRB’s interpretation of the NLRA in certain cases. However, it also seems clear that on questions involving “run-of-the-mill” NLRB decisions, i.e., the application of factual determinations to settled agency interpretations, Judge Gorsuch is not shy about deferring to the NLRB’s decision.

Judge Gorsuch and the NLRB Part 1: An Initial Overview

Posted in Courts

judge-neil-gorsuchEarlier this week, as I’m sure everyone has now heard, President Trump announced his pick for the U.S. Supreme Court. For those of you who missed it, President Trump nominated Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit.

Curious about his decisions in cases involving the NLRB, I set about collecting them using the online Lexis case database. What I found?  Judge Gorsuch has been involved in eight decisions involving the NLRB since he went on the bench in 2006.

The low number was initially surprising. It is significantly less than the number of decisions in which Chief Judge Garland, President Obama’s pick for the same seat last year, participated.

But I think there are at least two reasonable explanations. The first is simply time.  Chief Judge Garland has been on the bench for nearly two decades.  Judge Gorsuch has been on the bench just over one decade.

The second is location. Chief Judge Garland is on the D.C. Circuit Court of Appeals, which is more likely than other circuits to hear appeals from federal agency actions, including those from the NLRB.  Moreover, of the six states from which the Tenth Circuit’s appeals come, four are right-to-work states.  And in each of the six states, the percentage of unionized workers is among the lowest in the country.

Turning back to the actual decisions, here is how they came out. Of the eight cases, one had no substantive decision, but was merely an order vacating a NLRB decision in light of the U.S. Supreme Court’s decision in Noel Canning.

Of the remaining seven cases, five have precedential value. This means that the case can be cited as authority in other decisions involving the same or related topics.  (The court itself decides if the case has precedential value.)  Judge Gorsuch authored the majority opinion in three of those cases.  In another precedential decision, Judge Gorsuch authored a dissent.

In every NLRB case that came before the Tenth Circuit that involved Judge Gorsuch, the court affirmed the NLRB’s decision. Judge Gorsuch dissented in only one of those cases, which also happens to be the most recent decision (January 2016).

Stay tuned to this blog next week for additional information about the cases involving Judge Gorsuch and the NLRB, including a discussion of that dissenting opinion.