Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

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.

Trump Appoints Miscimarra as Acting NLRB Chairman

Posted in NLRB

Earlier this week, newly inaugurated President, Donald Trump, named Philip A. Miscimarra the acting chairman of the NLRB.  Miscimarra, the sole Republican currently on the NLRB, is serving in a term that expires in less than 12 months.

Two of the five NLRB positions are currently vacant.  The details on the appointment process have not yet been announced.  As we outlined in this post-election post, the NLRB members President Obama selected have staggered terms that carry over into this administration.  Moreover, the General Counsel (the “prosecutor” of unfair labor practice complaints) is also appointed with a different term that carries over as well.

We will continue to update this blog with developments around the NLRB under President Trump.  Stay tuned.

Documentation, not Intuition, is Key to Determining Whether an Employee is a Supervisor

Posted in Supervisors, Union Organizing

A recent NLRB decision once again demonstrates that intuition and logical conclusions are no substitute for documentation of supervisory acts when it comes to classifying employees as supervisors under the NLRA.  At issue this time was a registered nurse whom the employer hired to assign and supervise the work of other nurses during shifts in which no other management is present.  Like the tugboat captain in 2015 and the security guard lieutenant in 2016, the NLRB held the RN was not a supervisor.

The case involved a union’s efforts to organize a hospital’s employees. The employer argued that Patient Care Coordinators (PCCs), the RN position described above, were “supervisors” under the NLRA.  If the PCCs were indeed supervisors, then they could be excluded from the bargaining unit.

An employee is a supervisor under the NLRA if the employee exercises, or effectively recommends the exercise of, at least one of 12 powers while using “independent judgment” in the “interest of the employer.”  The employer relied upon three specific powers:  the PCC’s ability to assign work to employees, their responsibility for directing work of other employees, and their power to discipline, suspend and even terminate other employees.

With most things in life, timing is essential. That certainly held true for the employer in this instance.  The NLRB held that the employer failed to provide concrete examples demonstrating the use of supervisory powers by the PCCs. The employer’s lack of such examples, however, could have had something to do with the fact that the PCC position had only existed for about 3½ months prior to the election petition.  There was a job description that clearly laid out supervisory powers, but there had not been (not surprisingly) much opportunity for the PCCs to exercise the authority the job description granted.

The employer attempted to use e-mails the PCCs sent reminding employees to do certain tasks. But, the NLRB discredited these because they were mass e-mails and gave no direct supervisory instruction to particular persons.  The PCC’s ability to assign work was both acknowledged but discredited by the Board, because in many situations, only one other nurse worked in addition to the PCC.  According to the Board, this arrangement meant that assigning work to that nurse was an “obvious and self-evident choice,” not requiring the use of independent judgment.

While the employer’s Vice President testified that PCC’s are accountable for, and do “responsibly direct” the other nurses, there was again no documentary evidence to suggest that PCCs were held accountable for the work of employees that they directed.  Similarly, no documentation existed of the PCCs disciplinary power, mainly because no other nurses had been hired or fired in the short months after the creation of the position, but before the union election petition.

Member Miscimarra (R) dissented, arguing that the majority’s holding failed “the common sense test.” Looking to the reality of the hospital’s operations as opposed to its formal documentation, Miscimarra found it self-evident that any employee who was the only person present in the facility with any authority to make patient care decisions “from 7 p.m. to 8 a.m., Monday through Friday, and every weekend” should easily qualify as a supervisor.  Member Miscimarra further reasoned, among other points, that if a new patient in critical condition arrives at the hospital after hours, “someone has to be in charge,” and that someone is clearly the PCC.

For the labor professional, there will be no good substitute for the documentation of the exercise of supervisory authority.  Job descriptions are certainly a helpful staring point, but will not be sufficient by themselves.  This most recent case underscores these general principles, even when the position is newly created.

Kentucky’s Trifecta: Comprehensive Right-to-Work Legislation Enacted

Posted in Prevailing Wage, Unions

Kentucky has become the 27th state in the nation to enact right-to-work legislation.  It did so on one of its legislators’ first days back in the office in 2017.  The “trifecta” is made up of three different bills, all directed at compulsory union membership and union-scale wages.  Read more about Kentucky’s right-to-work law, repeal of state prevailing wage requirements, and limitations on deduction of union dues from employee paychecks here.

Kentucky’s action comes on the heels of a federal court of appeals holding late last year that upheld a Kentucky county’s right-to-work ordinance.  That decision, which found that a county ordinance could constitute a “state law” under an NLRA provision giving states the leeway to enact right-to-work laws, has been appealed to the full court of appeals.  A copy of that decision is here.

Five Items for Every Labor Professional’s 2017 “To Do” List

Posted in NLRB

Last week I reviewed the top five most significant developments in labor law from 2016. This week I have assembled a list of the five most important things that should be on every labor professional’s “to do” list for 2017.

Countdown on the old movie screen. High resolution image with detailed quality.

Pay Attention! From the NLRB to the DOL to the courts, 2017 will bring a number of twists and turns; including some that no crystal ball will be able to foretell.  So, the number 1 thing you should do:  monitor those developments.  Subscribe to a blog (this one, for example!).  Sign up for alerts from a labor law firm (this one, for example!).  Stay tuned to your favorite trade association.  Or whatever way you have found success in keeping up-to-date on current events.

Review Temp Usage. The NLRB’s decision on temps in the bargaining unit will place a premium on the language in your temp agency agreement as well as how you actually use and treat temporaries in the workplace.  Be prepared to respond to union organizing activity that will impact both your regular and temporary workforce. Continue Reading

In Case You Missed It: Top 5 Posts from Vorysonlabor in 2016

Posted in NLRB

You saw my take on the most significant issues of 2016 earlier this week.  Here are the five posts from vorysonlabor.com in 2016 in which readers were the most interested:

Five Labor Law Developments For Your 2016 “To Do” List

The Persuader Rule has Arrived: A Must-Read for Employers

The NLRB After a Trump Victory: What to Expect When the Trump NLRB Arrives

Top 5 Labor Law Developments of 2015

The “Ambush” Election Rule, One Year Later: An Interview