Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

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

Top 5 Labor Law Developments of 2016

Posted in NLRB

3d illustration of top 5 symbol over white background

Well, 2016 is finally in the history books. It was certainly a momentous year for labor law.  Here is my take on the five most significant developments in 2016:

Donald Trump Elected President.  As explained in my post-election post, there are two vacant seats on the NLRB and Member Miscimarra’s (R) term is expiring in less than 12 months.  Typically, the party of the President controls the majority of seats on the NLRB.  Whether President-elect Trump appoints management friendly members of the NLRB, and when those appointments will be confirmed by the Senate, is yet to be seen.

Persuader Rule Permanently Enjoined.  A federal district court stopped in its tracks the very employer-unfriendly revision to the DOL’s interpretation of the advice exemption under the LMRDA.  The decision is on appeal, and the issue presents an early test to see what we might expect from a Trump DOL.

Temporary Employees in the Bargaining Unit.  In a much anticipated decision, the Obama NLRB held that temporary employees working alongside an employer’s regular employees could be included in the same bargaining unit as the regular employees.  In doing so, the NLRB reverted to a rule that was last in place during the waning years of the Clinton Administration. Continue Reading

Federal Court Permanently Blocks Persuader Rule

Posted in Courts, Department of Labor, Union Organizing

In welcome news to employers, a federal district judge in Texas earlier this week permanently blocked the Department of Labor’s (“DOL”) persuader rule. The court’s order makes permanent its June decision temporarily blocking the rule.  The temporary order is on appeal to the Fifth Circuit Court of Appeals.  Nonetheless, the court decided that the persuader rule “should be held unlawful and set aside…and the Court’s preliminary injunction preventing the implementation of that Rule should be converted into a permanent injunction with nationwide effect.”  To explain its decision, the court incorporated its June order, which, in part, found that DOL did not have the authority to issue the rule.

The persuader rule, which took effect April 25, 2016, radically alters the interpretation of the Labor-Management Reporting and Disclosure Act (“LMRDA”). These prior posts contain more information about the rule.

Given the DOL’s appeal of the temporary order issued in June, an appeal of the permanent order is sure to come. The Court of Appeals could overturn the district court’s decision.  And there are at least two other lawsuits challenging the rule that could result in a conflict in the courts.

The more practical question, however, is what President-elect Trump’s administration may do. The appeal is still in the briefing process and thus it is unlikely that we will have a decision from the court of appeals prior to the inauguration of the new administration.  Notifying the court that the DOL is withdrawing its appeal, thus allowing the permanent injunction to stand, would be a relatively simple way for the DOL to provide immediate relief from the rule.

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

Posted in NLRB, Rulemaking

With the dust still settling from our national election this week, I’ve been digesting what it means for the NLRB. So, here are some initial thoughts.

Two of the five NLRB positions are vacant now.  But, the details on the appointment process are messy.  The NLRB members President Obama selected have staggered terms that will carry over into President-elect Trump’s administration.  Moreover, the General Counsel (the “prosecutor” of unfair labor practice complaints) is also appointed with a different term.

The two vacancies should go to Republicans because the NLRB is always controlled by the political party that holds the White House. But, that could take some time.  Here is a good explanation of the details, including discussion of one scenario in which Trump doesn’t appoint anyone to take the place of Member Miscimarra.

Perhaps the more interesting question for labor professionals is what will happen when the Trump NLRB is up and running? Well, Republican members typically are more sympathetic to employer concerns.  And, there is no shortage of issues that employers would have liked to see come out differently.

One development from Obama’s NLRB is a good example. Substantial amounts of ink have been spilled (including on this blog) on the NLRB’s election rule, sometimes called the “quickie” or “ambush” election rule.  The Trump NLRB could undertake an effort to repeal that rule, but that would consume a lot of the NLRB’s resources.  Continue Reading

Disputes Between Volkswagen and UAW Continue

Posted in Elections, Union Organizing, Unions

Earlier this month, Volkswagen appealed to the U.S. Court of Appeals in Washington, D.C., in an effort to overturn the NLRB’s decision upholding the UAW’s election win to represent about 165 skilled maintenance workers within VW’s Chattanooga plant.

VW contends that the UAW should not be permitted to represent a small segment of the production and maintenance workers within a plant of about 1,800.  The NLRB has consistently ruled in the UAW’s favor, first by allowing the election within such a small segment of the whole plant and then by ruling that VW has refused to bargain with the UAW over the wages, hours and working conditions of the 165 maintenance workers.  The NLRB’s order that VW must bargain with the UAW gave VW the right to appeal.  And, now the dispute has reached the U.S Court of Appeals. The U.S. Court of Appeals will likely decide the case within the next 9 to 12 months.

In addition to its appeal, VW also announced that it would no longer recognize the American Council of Employees (ACE) under its Community Organization Engagement Policy.  VW instituted the Policy to voluntarily recognize unions and other organizations as representatives of groups of employees. Once recognized by VW, the organization would have certain specified rights to meet with VW’s management and discuss plant issues. For an organization to be recognized under the Policy, it must represent at least 15 percent of the workers in the plant.  According to VW, ACE no longer met the 15 percent threshold.

ACE was formed to counter the UAW during the UAW’s 2014 campaign to represent all of VW’s production and maintenance workers.  UAW contends that it now represents a majority of the VW workers, but it has not yet filed for another secret ballot election with the NLRB.

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Successor Must Bargain with Union Over Initial Terms and Conditions of Employment

Posted in Mergers and Acquisitions, Negotiations

Hiring the workforce or purchasing the assets of an employer with union-represented employees is a transaction with a lot of labor-related risks.  A recent decision from the NLRB provides an example of how it can go wrong for an employer that fails to plan.  In so doing, it offers a good contrast to a case discussed on this blog last year.

A waste disposal company used “hoppers” on its garbage trucks.  The hoppers were provided by a labor supply company with whom the waste disposal company became dissatisfied.  A relative of the waste company’s owner formed a new labor supply company and set out to hire hoppers to provide to the waste company.

The source of hires for the new company was the prior labor supplier’s workers.  These workers were represented by a union.  The new company didn’t look elsewhere for employees.  The new company’s owner communicated directly with a number of the hoppers, letting them know that he would hire them if they submitted an application, and also advising them what he would pay and a few other terms and conditions of their employment.

The owner of the new company,  however, also gave out applications to one of the hoppers and asked him to assist in passing them out.  The owner didn’t tell this hopper about the new terms and conditions of employment.  Thus, this hopper didn’t pass along any such information to the other workers to whom he handed out applications.  Thus, of the 70 or so hoppers ultimately hired, only 20 heard directly from the new company that employment conditions would change.

The NLRB held that the new company did not have the right to set the initial terms and conditions.  Rather, it had to bargain with the union that had previously represented the hoppers.  The NLRB applied the “perfectly clear” rule, a rule that has existed for several decades.  When a new employer, hiring employees of a unionized predecessor, fails to clearly announce its intent to establish a new set of employment conditions prior to or simultaneously with inviting employees to apply for employment, the new employer will be required to consult with the union representing the employees prior to setting employment terms.

In this case, the NLRB held that the new company promised to hire anyone who submitted an application.  It also did not communicate to all employees the employment conditions it expected upon hire.  Rather, it only did so on the day that the employees first gathered to work for the new company, but the NLRB found that this was too late in the process.

Member Miscimarra (R) disagreed with the majority’s approach.  Among other things, he reasoned that the communication on the first day the employees reported for work was sufficient to satisfy the “perfectly clear” rule.  He also noted that the union didn’t make a demand for bargaining until a few days after the employees had started working for the new company.

This decision highlights an important lesson from the NLRB’s cases in this area:  an employer contemplating an acquisition of a unionized business that fails to plan for the hiring process makes a costly mistake.  That plan should include not just what will be said to applicants, but also when it will be said.  Both things are vital if the new employer wants to retain the unilateral right to set the initial terms of employment.