Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Update on NLRB Vacancies

Posted in NLRB

As readers of this blog know, the Trump administration began its time in office with two vacancies on the NLRB.  After some delay, nominations were finally announced for these positions, and included William Emanuel, a management side labor lawyer for a large, national labor and employment law firm, and Marvin Kaplan, an attorney working for the Occupational Safety and Health Administration.  Both Messrs. Emanuel and Kaplan are Republican, and the NLRB has historically had a majority of its members drawn from the party of the President.

On August 3, the U.S. Senate voted 50-48 to confirm Mr. Kaplan.  He was sworn in at the NLRB on August 10, taking over the seat previously occupied by Member Johnson (R).  This seat had been vacant since August 2015.  Member Kaplan’s term runs until August 27, 2020.

A Senate vote on Mr. Emanuel is not yet scheduled.  He drew particularly sharp questions during his confirmation hearing from Democratic Senators, including Elizabeth Warren (D-Mass.).  Hopefully, the Senate will act upon its return from its August recess.

Meanwhile, Chairman Miscimarra (R) announced earlier this month that he will leave the NLRB when his term expires in December 2017.  In a letter to NLRB staff, Chairman Miscimarra cited personal, family reasons for his decision to leave.  The employer community will certainly miss Chairman Miscimarra’s presence on the NLRB.  How quickly President Trump will nominate a person to replace Chairman Miscimarra is uncertain.

For labor professionals, especially those representing management, these personnel-related developments raise even more uncertainty over when they may see relief from the steady progression of more union-friendly rulings from the Obama NLRB.  If the confirmation of Mr. Emanuel is substantially delayed, there will be little time during which a 3-2 majority exists for President Trump’s appointments, before returning to, at best, a tie or to the status quo up to Member Kaplan joining the NLRB.  That status quo was a Democratic majority.  I will continue to monitor these developments and let you know as significant events occur.

Court of Appeals Reverses NLRB Holding in Joint Employer Case

Posted in Courts

Earlier this month, the D.C. Circuit Court of Appeals slowed down the NLRB’s move towards a relaxed test for whether a business is a joint employer for the purposes of the NLRA. While on first blush, the decision might seem to be good news for businesses that use staffing companies, or that subcontract business functions to other companies, it ultimately leaves open the possibility that the court may yet uphold an expanded joint employer rule.

At issue in last week’s case before the D.C. Circuit was CNN’s decision to terminate its contract with a staffing company that supplied camera operators. The union representing the employees filed a ULP, alleging that CNN was a joint employer, but failed to bargain with the union over its decision to terminate the staffing contract.

As of 2014, when the NLRB heard the case, the standard it followed to determine joint employer status required a business to have “direct and immediate control” over the actions and duties of workers. In the CNN case, however, the NLRB backtracked from this standard without expressly overruling it, stating that CNN merely needed to “share or codetermine” the essential terms and conditions of employment. Continue Reading

Big Defeat for UAW as Nissan Workers Vote “No”

Posted in Elections, Union Organizing

By nearly a 2-to-1 margin, Nissan’s production and maintenance employees at its Canton, Mississippi facility rejected UAW representation.  The count was 2,244 “no” votes to 1,307 “yes” votes.

The UAW had invested heavily for over six years in trying to convince Nissan’s Mississippi workers to vote “yes.”  Through demonstrations and rallies featuring actor Danny Glover, Senator Bernie Sanders, and scores of others, the UAW pitched itself as the right answer for Nissan workers.  But, just like two previous elections at Nissan’s Tennessee facility, the UAW was soundly rejected.

Before, during and after the election campaign, the UAW filed numerous unfair labor practice charges against Nissan.  The UAW will argue to the NLRB that Nissan committed labor law violations that justify setting aside the election result.  The litigation over the UAW’s charges will likely linger for years.

During the election campaign, the UAW received a troubling blow to its reputation.  The United States Justice Department filed an indictment against UAW executives, alleging a bribery and embezzlement scandal.  According to the indictment, millions of dollars intended for training Chrysler workers were instead used to buy a Ferrari, jewelry, a swimming pool, to pay-off a home mortgage, and to take luxurious trips.  Though the indictment was issued in Detroit, news of the emerging scandal was widely reported in Mississippi.

Consequently, there is much UAW litigation taking place, not only at the NLRB, but in the federal criminal court in Detroit.

Employers Continue to Lose Social Media Cases at the NLRB

Posted in Employee Discipline, NLRB

Employers firing employees for the content of their social media posts continue to do so at their own risk.  An NLRB decision from last week provides a good reminder of this important point.

An ambulance company, in two unrelated events, fired two employees for what they posted to Facebook.  The first employee, in response to a post from a recently-terminated employee, told the employee that he was “sorry to hear” that she had been fired and that she “may think about getting a lawyer and taking [the employer] to court.”  He also suggested that she could “contact the labor board too.”  Others, including other employees, commented on the terminated employee’s post.

A few months later, the second employee posted a profanity-laden comment to his Facebook page about, among other things, being “broke down” and stating that “they don’t wanta buy new s***!!!!”  The employee used all capital letters for emphasis in his post, but eschewed the asterisks I use in mine.  Two people clicked “like” and two people commented, but there was no evidence about who these people were.  The employer interpreted the post as an accusation that its ambulance was broken down and investigated its maintenance records.  It found that the ambulance the employee was driving was not, in fact, broken down and terminated the employee for violating its social media policy. Continue Reading

UAW-Nissan Agree to Election; UAW Files More Charges

Posted in Elections, Union Organizing

On July 16, the UAW and Nissan entered into a Stipulated Election Agreement with the NLRB.  Under the Agreement, the UAW agreed that only the production and maintenance workers employed directly by Nissan would be able to vote.  The Agreement excludes from the bargaining unit “temporary employees” and “contract employees,” and specifically excludes those workers employed by Kelly Services and MINACT.  The actual unit description is as follows:

Included: All full-time and regular part-time production and maintenance employees, including leads, employed by Nissan North America, Inc., at its facility located at 300 Nissan Drive, Canton, MS 39046-8562.  Excluded: All other employees, temporary employees, contract employees, including, but not limited to, those individuals employed by Kelly Services and MINACT, office clerical employees, managerial employees, professional employees, guards and supervisors as defined in the Act, as amended.

Thus, with this election, the UAW is seeking to represent only those production and maintenance workers employed directly by Nissan, about 3,500 workers.

Under the Election Agreement, the NLRB-supervised, secret ballot election will be held on Thursday, August 3, and Friday, August 4, with the polls open on both days at the following times (Central Time):  2:00 a.m. ‒ 6:00 a.m.; 7:00 a.m. ‒ 1:00 p.m.; and 2:00 p.m. ‒ 7:00 p.m.

The vote count is scheduled to begin just after 7:00 p.m. (Central Time) on Friday, August 4.

After entering the Election Agreement, the UAW filed additional unfair labor practice charges against Nissan.  Among them, the UAW alleges that Nissan management threatened to close the plant if the UAW wins.  Nissan management denies the allegations.

If it loses the election, the UAW could use these allegations to argue that the NLRB should overturn the election and issue a bargaining order.  A bargaining order requires that an employer recognize and bargain with the union, despite the union’s election loss.

UAW Files Election Petition for Workers at Nissan’s Canton, MS Facility

Posted in Elections, Union Organizing

On July 10, the UAW filed a NLRB Petition for Election to represent all of the production and maintenance workers at Nissan’s Canton, Mississippi manufacturing facility.  The facility has over 6,500 workers.  The petition could not only include the production and maintenance workers employed directly by Nissan, but also include contract workers employed by Kelly and Minact working at the facility.

Publicly, the UAW said that it wants a quick election and has proposed July 31 and August 1 as the election dates.  But, just a few days earlier, the UAW filed numerous unfair labor practice charges against Nissan that could block any election until those charges are resolved.  The litigation over the unfair labor practice charges could take months.

Additionally, Nissan could raise objections to the UAW’s petition, which also could delay the election.  For example, Nissan could object to the inclusion of the contract workers with the regular Nissan employees.  Under existing case law from the Obama-appointed NLRB, effectively the union gets to decide whether the contract workers are to be included with the regular employees.  The Trump-appointed NLRB is expected to overturn that case law and return to the prior precedent that the employers must all consent to the inclusion of their respective employees.

The next step is for Nissan to file its position statement with the NLRB, stating any objections it has to the UAW’s Election Petition.  Nissan’s position statement is due July 17.

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