Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

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

Posted in Management, NLRB, Union Organizing

Last week I looked back at the five most important labor law developments in 2015. This week I look forward to the top 5 most important issues labor professionals should find a place for on their “to do” list this year:

  1. Prepare for the DOL persuader regulations. Going on five years now, the DOL has been working on a regulation that would alter a long-standing interpretation of a fairlyGold five obscure statute called the Labor-Management Reporting and Disclosure Act (LMRDA). Some prior posts discuss the details and implications of this rule.  It is likely that employers will see a final regulation in 2016.  Labor professionals not already familiar with the proposed rule and its potential impact an their business should spend time in early 2016 getting up to speed.
  2. Examine the impact of the NLRB’s new joint employer standard. In 2016, we should see some cases that will “flesh out” the new joint employer standard. Included in these may be the expansion of (or decision not to expand) this new standard to franchisor/franchisee, lender/borrower, or parent/subsidiary relationships, to name just a few the dissent in BFI raised.  Every labor professional should use 2016 to identify and address, if so desired, the joint employer risks that now lurk in the contractual arrangements and course of dealing employers have with temporary services firms, subcontractors, and others.
  3. Get ready for even more new rules on temporary employees from the NLRB. For many years, the NLRB held that, absent the consent of both a temporary services company and a company that used those employees (a “user employer”), the temporary employees could not be included in a bargaining unit made up of the user employer’s employees. During the Clinton Administration, the NLRB changed this rule, applying traditional “community of interest” factors which made it easier to include temporary employees in a bargaining unit of the user employer’s employees.  During the second Bush Administration, the NLRB reverted to its long-standing rule.  Most recently, the NLRB has invited amicus briefs on the question in a case called Miller & Anderson, Inc.  Such a request has typically foreshadowed a rule change, and usually not in a direction that is favorable for employers.  Thus, labor professionals should spend some time in 2016 planning for the possible ramifications of a change in this rule.
  4. Monitor the first full year of data from the NLRB’s quickie (or “ambush”) election rule. The rule will have been in effect for a full year as of April. Expect to see much analysis, including a post on this blog, of that data.  A full year of data should provide labor professionals a more reliable basis for evaluating the impact of the rule on the number of union elections held, the number of union wins, and the time between filing of a petition and holding the election.
  5. Watch the ongoing battles over mandatory union dues and fees. Whether an employee must join a union, or in the alternative pay a fee, as a condition of employment will be a hot issue in 2016. In the public sector, the U.S. Supreme Court heard arguments just last week on whether “agency fees,” which are mandatory payments to a union for union-represented public employees in about 20 states in the country (including Ohio), are an unconstitutional violation of the employee’s First Amendment rights.  In the private sector, the “right to work” movement has scored recent victories in Wisconsin, Indiana, and Michigan, and legislation was recently introduced in Ohio.  Expect state level efforts to continue on this front.

As was the case last year, the list could easily be longer. But these are a few of the areas that labor professionals will want to monitor so as to determine whether any proactive steps should be taken.

*Special thanks to my partner, Al Kinzer, for his contributions to this post.

Top 5 Labor Law Developments of 2015

Posted in NLRB

Top 52015 is over; 2016 has just begun.  So, what were the top developments in labor law in the past 12 months?  And, what should be at the top of the list for labor professionals to keep an eye on in 2016?  I will share some thoughts on these two questions over the course of the next couple of posts on this blog.

First, a look back at 2015:

  • The NLRB’s new joint employer test.  In August, the NLRB made it easier to prove that two different employers were jointly employing a group of workers.  In doing so, the NLRB’s decision holds very significant implications for union organizing and collective bargaining in industries ranging from the temporary employee services sector to the franchise community.
  • The “ambush” election rule.  Ok, so for the purists, you are correct — this isn’t technically a 2015 development; the NLRB published its rule in December 2014.  But, what we saw in 2015 was that the rule actually went into effect after legal challenges to the rule failed.  Early results suggested that the rule was having the precise impact that the NLRB intended:  average time from filing of the petition to hold an election fell.

Continue Reading

Here We Go Again . . . NLRB Refuses to Back Down on Its Opposition to Class/Collective Action Waivers

Posted in NLRB

Like it or not, the NLRB is at least consistent in its belief that employee participation in class or collective actions is protected concerted activity under the NLRA.  In a 2-1 ruling, the Board in Philmar Care, LLC., 363 N.L.R.B. No. 57 (December 11, 2015) once again reaffirmed this belief and held that employers may not utilize individual arbitration agreements that prevent employees from joining employment-related class or collective actions.

The NLRB first articulated this position in its D.R. Horton decision in January 2012.  The Fifth Circuit Court of Appeals subsequently rejected the NLRB’s reasoning on multiple occasions and refused to enforce the D.R. Horton decision.

Undeterred, the NLRB doubled down on its reasoning in Murphy Oil USA, Inc., again asserting that class or collective action waivers in arbitration agreements violate the NLRA.  And, once again, the Fifth Circuit Court of Appeals rejected the NLRB’s reasoning.

The Philmar Care decision should provide another Circuit Court of Appeals (likely the Ninth or D.C. Circuit) the chance to weigh in on the NLRB’s controversial position.  While we await the likely appeal, labor professionals should review all individual, non-collectively bargained arbitration policies.  In particular, labor professionals should:

Determine whether to include a class or collective action waiver in their arbitration agreements.  Although the NLRB remains undeterred, the clear weight of legal authority supports enforcement of class or collective action waivers in arbitration agreements.

Make certain that their arbitration policies allow employees to file unfair labor practice charges with the NLRB.  The NLRA prohibits arbitration policies that would reasonably lead employees to believe that they are prohibited from filing unfair labor practice charges with the NLRB. This issue arose in both D.R. Horton and Murphy Oil USA, Inc., and in both cases the employer ran afoul of the prohibition.  Philmar Care avoided this issue by specifically carving out an exception for claims arising under the NLRA.

Right-to-work Legislation Introduced in Ohio

Posted in Legislation, Unions

In October 2015, Representative Tom Brinkman introduced House Bill 377 in the Ohio General Assembly to make Ohio the nation’s 26th right-to-work state (along with Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming).  “Right-to-work” refers to prohibitions on union security agreements or agreements between a union and the employer to require union membership.  House Bill 377 would prohibit union membership in the private sector as a condition of employment.

Collective bargaining in the private sector is generally governed by the federal National Labor Relations Act (NLRA).  Under the NLRA, a private sector employer and union may agree to a requirement in a collective bargaining agreement that requires an employee as a condition of employment (1) to join the labor union representing the employer’s employees, or (2) to pay an agency or “fair share” fee to the labor union if the employee is not a union member but is covered by the collective bargaining agreement between the employer and the union.  The NLRA expressly permits a state to have a law that prohibits requiring labor union membership as a condition of employment. Continue Reading

VW Sets Up Challenge to UAW’s Election Win

Posted in Elections, Union Organizing, Unions

Volkswagen has refused to bargain with the UAW as the representative of 165 skilled maintenance workers at VW’s Chattanooga facility.  Consequently, the UAW has filed unfair labor practice charges with the NLRB.  VW’s refusal to bargain with the UAW is the only means for VW to challenge the recent election.

On December 14, the NLRB certified the UAW as the exclusive bargaining agent for a unit of 165 skilled maintenance workers based on the UAW’s December 4 election victory.  VW has contested the legitimacy of a union election over such a small unit in a facility of over 1,400 production and maintenance employees.  VW contends that the 165 skilled maintenance workers share an overwhelming community of interests with the other production and maintenance workers at the Chattanooga facility. Thus, VW argues that the appropriate bargaining unit consists of all 1,400 workers.

Under the NLRA, VW’s only means to challenge the micro-unit in its facility is to refuse to bargain with the UAW.  An NLRB Administrative Law Judge will likely find a violation of the federal labor law, which sets up an appeal to the full NLRB in Washington, D.C., and then an appeal to the United States Court of Appeals.  Unless VW relents, this appeal process could take three years.

NLRB Says Halting Benefit Contributions is Unlawful

Posted in Negotiations, NLRB

Earlier this week I introduced a recent NLRB decision that addressed two significant issues for employers. The first issue – related to an employer access rule –was a largely illusory victory for the employer.  Today’s post focuses on the second issue, which related to the employer’s cessation of contributions to a union education fund. The outcome for the employer on this issue was even worse.

When the contract expired, the employer ceased making contributions to the fund.  It argued that language in the union contract as well as the participation agreement and other documents it signed with the fund permitted the unilateral discontinuation of fund contributions upon expiration of the union contract.

The NLRB majority, citing the established rule that requires “clear and unmistakable” language to establish a waiver of the union’s right to bargain over a mandatory subject to bargaining, found that the language cited was not sufficient. Significantly, the majority distinguished between the contractual right to cease payments to the fund and the statutory right of the union to bargain over any such action. The majority held that the language cited did not affect a waiver of the statutory right to bargain. Continue Reading

Final Persuader Rule Sent to OMB

Posted in Rulemaking, Union Organizing

Politico reported earlier today that the DOL sent its persuader rule, covered in numerous posts on this blog, to the Office of Management and Budget (OMB).  I did some digging on the OMB’s website, and sure enough, the rule is now in its hands to conduct a regulatory review.

The DOL had previously announced its intent — via the government’s unified rulemaking agenda — to issue a final rule in March 2016.  Submission of the rule to OMB would allow the DOL to stay on track.  The rule has been delayed several times; the proposed rule was originally published in 2011.

Whether the proposed rule addresses the plethora of concerns employers raised in during the comment stage is presently unknown.  If the rule is published without significant change, it will have a major impact on all employers.  The impact could be particularly significant on smaller employers, who may have fewer internal resources available to oppose a union organizing effort.  All employers should be prepared for potentially far-reaching consequences for their relevant labor strategies.

UAW Wins VW Election of Skilled Maintenance Workers

Posted in Elections, Union Organizing, Unions

The UAW won the election to represent 165 skilled maintenance workers at VW’s Chattanooga facility.  There were 108 “yes” votes in favor of UAW representation and 44 “no” votes against the UAW.

VW appealed the NRLB Regional Director’s decision approving an election for a micro-unit of skilled maintenance workers.  Now, VW must decide whether to continue its appeal or recognize the UAW as the bargaining agent for the small unit.

If VW continues its appeal, then it will likely refuse to bargain with the UAW.  With such a refusal by VW, the UAW will then file an unfair labor practice charge against VW for refusing to bargain.  Then, the NLRB will issue an unfair labor practice complaint against VW.  From there, VW can continue its challenge to having a UAW micro-unit within its 2,000 plus person facility.

Employer Access Policy Lawful, But Unlawfully Applied

Posted in Employee Discipline, NLRB

A recent NLRB decision hit on two issues of potential interest to labor professionals. The first, covered in today’s post, involved an employer policy on off-duty employee access to the employer’s property. It is another good example of the NLRB’s relentless scrutiny of employer policies, although this time with a slightly more favorable outcome for employers.

The policy at issue read:

An off-duty employee is not allowed to enter or re-enter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital-related business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.

The NLRB majority found this policy facially lawful under a 1976 decision dealing with off-duty employee access to an employer’s facility. That rule requires, among other things, that the policy prohibit off-duty access for “all” purposes. The majority reiterated that, as a matter of policy, affording access to off-duty employees as members of the public for purposes of receiving medical treatment or visiting patients did not violate the NLRA. Member Miscimarra (R) concurred in this result, but would have reached it through a different, more employer-friendly, analysis. Continue Reading

Unions Win 66% of All Representation Elections Nationwide; Fewer in Ohio

Posted in Elections

Earlier this year, the NLRB released data on union wins in election petitions filed during FY 2015 (i.e., from October 1, 2014 to September 30, 2015).  The results:  unions won 66% of all election petitions filed.

In representation petition activity, where the union is trying to gain representation rights for the first time, unions won 69% of the time.  In decertification petition activity, where employees are attempting to kick out a union, unions only won 41% of the time.  Thus, in most decertification elections, employees chose to dump their union representation.

Examining the data in a bit more detail reveals some interesting facts about activity in (and around) Ohio.  There are two NLRB regional offices in Ohio:  Region 8 in Cleveland and Region 9 in Cincinnati.  Region 8 handles election petitions in northern Ohio (roughly) and Cincinnati handles elections in southern Ohio, as well as in eastern Kentucky and some western portions of West Virginia.

Here are some tidbits from Region 8’s data:

  • Unions won 50% of all representation elections
  • Employees voted to get rid of their union 60% of the time, roughly equal to the national average
  • Largest representation petition in which the union won involved 150 eligible voters
  • Union with most election petitions going to a vote was the Teamsters

As for Region 9, on these same points, the data showed:

  • Unions won 57% of all representation elections
  • Employees voted to get rid of their union 67% of the time, somewhat above the national average
  • Largest representation petition in which the union won involved 120 eligible voters
  • Union with most election petitions going to a vote was the International Brotherhood of Electrical Workers

Overall, unions filed 230 more representation petitions in FY 2015 than in FY 2014, for an increase of approximately 18%.  Thus, it would appear that unions were more active.  Whether this is related to the “ambush election rule,” however, is too early to tell.

Moreover, unions do not have to use the NLRB’s process.  Unions can also seek voluntary recognition.  Thus, these numbers do not necessarily capture the entirety of union activity, either nationally or in Ohio and surrounding areas.