Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Fifth Circuit Stays Persuader Rule Appeal

Posted in Courts, Department of Labor

On June 15, the Fifth Circuit granted the government’s request to stay the appeal while the Department of Labor (“DOL”) decides whether to rescind the “persuader rule” issued under the Obama Administration.  The group of business associations that filed the lawsuit challenging the rule also opposed the stay.  They argued it was necessary to decide the case on the merits to avoid future lawsuits if DOL decides not to rescind the rule, or future administrations once again try to expand the scope of reportable activities under the Labor-Management Reporting and Disclosure Act.

The Fifth Circuit sided with the government and held the case in abeyance pending DOL’s rulemaking process or until December 12, 2017.  The public will have 60 days from the date the DOL published its Notice of Proposed Rulemaking to comment on whether the government should rescind the rule.  Stay tuned for further updates.

DOL Intends to Rescind Persuader Rule

Posted in Department of Labor, Rulemaking

After months of waiting and wondering how the new administration would handle the appeal of the nationwide injunction prohibiting enforcement of the Obama Administration’s “persuader rule,” we finally have our answer.  The DOL is proposing to rescind the rule through notice and comment rulemaking.  Thus, on June 2, the DOL, under recently confirmed Secretary Alexander Acosta, asked the court to put the pending appeal on hold.

Yesterday, the government submitted a draft of the Notice of Proposed Rulemaking (NPRM) to the court, which it expects will be published on Monday, June 12, 2017. The NPRM gives the following reasons for rescinding the persuader rule:

  • To engage in further statutory analysis in order to provide as thorough an explanation as possible in the event DOL elects to change the scope of “reportable activity” under the Labor-Management Reporting and Disclosure Act. The NPRM is critical of the DOL’s earlier explanations for what constituted “reportable activity.”
  • To consider the interaction between Form LM-20 and Form LM-21. As you may recall, DOL did not address how the proposed changes to reporting requirements, which are made on Form LM-20, affected the reporting of disbursements, made on Form LM-21. This lack of consideration caused significant confusion.
  • To allow a more detailed consideration of the effects of the Rule on attorneys’ interactions with their clients, that is, the scope of communications that would be privileged from disclosure.
  • To evaluate whether there are more productive uses for DOL’s limited resources instead of reviewing and investigating the significant increase in reports that the Rule would produce.

Notably, neither the NPRM nor the filing the DOL made with the court promises to ultimately reject the Obama Administration’s Rule; only that it wishes to reevaluate it at this time. Perhaps that is why the parties that initially sued to enjoin enforcement of the Rule — a collection of employer-aligned trade organizations — have indicated their intent to oppose the government’s request for a stay.  Check back with us as we continue to provide updates on the persuader rule’s status.

Restaurant’s Public Image Didn’t Justify Ban on “Fight for $15” Pin

Posted in Union Insignia

Two of my colleagues, David Campbell and Don Slezak, have authored an excellent piece on a recent NLRB decision that is a must read for employers with dress code policies.  The case grew out of the “Fight for $15” campaign, which seeks to increase the minimum wage to $15/hour.

The decision involved a restaurant chain that prohibited employees from wearing pins that read “Fight for $15” on their uniforms.  The employer’s general dress code standards banned any pins, stickers, buttons, etc., that were not provided by the company to be worn on the employee’s uniform.  The NLRB found that this violated employees’ Section 8(a)(1) right to wear union insignia, and rejected the employer’s “special circumstances” defense which rested on its desire to maintain a well-groomed and “very clean” public image.

Labor professionals should take note of the NLRB’s lack of deference to the employer’s dress code policy, and the business concerns underlying those policies, when it comes to things like union insignia or other indicia of employee protected, concerted activity.

Want to Limit an Arbitrator’s Ability to Modify a Disciplinary Decision? Bargaining For It is the Best Bet!

Posted in Arbitration, Courts

Last week, the Ohio Supreme Court issued a decision emphasizing the power of an arbitrator to amend an employer’s disciplinary decision where the CBA lacks an express provision limiting the arbitrator’s authority to do so.

At issue in the case was the termination of a police officer for the violation of several police department rules, the most serious being the department’s sexual harassment policy.  The chief of police determined that the Grievant should be discharged.  In doing so, he applied a “discipline matrix” the department had adopted pursuant to authority granted it in the CBA.  The matrix was a system for determining proper employee discipline.  The matrix gave the chief of police “sole discretion” to choose among the options for discipline suggested by the matrix.

At arbitration, however, the arbitrator found that the City did not clearly establish that the Grievant violated the department’s sexual harassment policy, leaving the department without just cause to terminate the Grievant.  The arbitrator found that instead, the evidence only established conduct unbecoming an officer.  Looking at the matrix, the arbitrator noted that it specified two possible options for discipline for conduct unbecoming — a 3-10 day suspension or termination.  But, the arbitrator didn’t pick either.  Instead, he ordered a “lengthy disciplinary suspension” and reinstated the Grievant without back pay.  He did not give the chief of police the discretion to pick between the two options. Continue Reading

Persuader Rule Briefing Delayed (Again)

Posted in Department of Labor

You may recall from our previous post that the Fifth Circuit Court of Appeals set April 17, 2017, as the due date for the government’s brief in its appeal of the nationwide injunction of the so-called “persuader rule.”  The government asked for and received another extension of its highly anticipated brief until May 17, 2017.

But, the 17th came and went last week, and all that happened was….another extension.  The new deadline is June 16, 2017.  So, we will all have to wait a little longer to learn whether the Trump Administration intends to file a brief, and thus continue to defend the rule proposed under the previous Administration, or withdraw its appeal, allowing the injunction the trial court issued to stand.

We will continue to provide updates as they develop.

Union Access to Employer Property for Safety Inspections: OSHA Reverses Course

Posted in Department of Labor

Two of my colleagues, Ben Shepler and Mike Griffaton, wrote yesterday about the Occupational Safety and Health Administration’s (OSHA) reversal of a position it took in February 2013.  At issue is the right of non-employee union representatives to participate in an OSHA-conducted workplace safety inspection.  The prior administration extended that right to unions, even if the employer was non-union. Those interested in reading more on the topic, including the lawsuit the NFIB filed against OSHA over the 2013 development, can access the alert here

For labor professionals, this development means that there is no requirement under workplace safety law to permit a union representative to join a safety inspection that OSHA conducts.  For those employers who are unionized, however, it may be that the union contract gives the union representative that right.  So, make sure to review it carefully before excluding a union representative. 

 

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.