Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Will Employers Get Their Email Systems Back? NLRB Invites Briefs on Purple Communications

Posted in Employee Handbooks, NLRB, Union Organizing

Last Wednesday, the NLRB issued a notice and invitation for parties to file briefs to address how the board should treat its previous decision Purple Communications, Inc., 361 N.L.R.B. 1050 (2014).  As we explained when Purple Communications was decided, the NLRB held that employees who were given access to their employer’s e-mail system for work-related purposes have a right to use that system for statutorily protected communications during non-working time.  A similar case has now come before the board, Caesars Entertainment Corporation, and the NLRB has invited interested parties to file briefs as to whether it should adhere to, modify, or overrule Purple Communications.

The governing rule from Purple Communications replaced the one from Register Guard, 351 N.L.R.B. 1110 (2007). Under Register Guard, employers could lawfully limit employees’ use of their email system for certain non-business-related activities, including statutorily protected communications, assuming that it did so in a non-discriminatory fashion.

Purple Communications, Inc. held that the Register Guard rule was “clearly incorrect,” and overruled it. The NLRB reasoned that the old rule gave too much consideration to employers’ property rights and not enough to employees’ rights to communicate about their employment.  The NLRB added that the old rule did not properly take into account the importance of e-mail as a vital means of communication.  It also drew a distinction between bulletin boards and copiers, on the one hand, and e-mail systems on the other hand, given long-established NLRB precedent permitting employers to prohibit non-business uses of the former. Continue Reading

DOL Formally Withdraws Persuader Rule

Posted in Department of Labor, Rulemaking

As previously anticipated on this blog, the Department of Labor (DOL) has formally rescinded the so-called “Persuader Rule.” Under court injunction preventing enforcement since November 2016, the DOL on Wednesday announced that the controversial rule had been withdrawn. In a press release, Deputy Assistant Nathan Mehrens stated:  “By rescinding this Rule, the Department stands up for the rights of Americans to ask a question of their attorney without mandated disclosure to the government.”

The Persuader Rule would have imposed greater reporting requirements on employers for communications involving union drives in the workplace. The rule would have required employers to disclose any “actions, conduct or communications” taken to “affect an employee’s decisions regarding his or her representation or collective bargaining rights.” This broadly would have included communications between an employer and their counsel regarding responses to unionization efforts, even where the employer’s counsel made no communications with employees directly.

This development is, of course, good news for employers.  With the rule rescinded, employers can remain assured that they will not need to report sensitive communications with their counsel.  Moreover, labor professionals can avoid what would have otherwise been a complicated, complex reporting process, and hindered the ability of employers, especially smaller ones, to obtain the legal advice needed to respond to union organizing activity.

Judge Kavanaugh and the NLRA: A Sampling of Opinions

Posted in Courts

Last 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 Brett Kavanaugh, a judge on the D.C. Circuit Court of Appeals.

Judge Kavanaugh has been involved in numerous decisions dealing with the NLRA.  Primarily, this is because the D.C. Circuit Court of Appeals is more likely than any other circuit to hear appeals from federal agency actions, including those from the NLRB.  Since his tenure on the bench started in 2006, Judge Kavanaugh has heard over fifty cases involving the NRLA.  Of the decisions in which Judge Kavanaugh has been involved, he has authored eight majority opinions and four dissents.

Judge Kavanaugh’s decisions suggest some deference to the NLRB’s decision-making authority, at least in certain situations.  Notably, in one of Judge Kavanaugh’s opinions, New York-New York, LLC v. NLRB, he held that it was within the NLRB’s discretion to decide whether it is a violation of the NLRA for a property owner to bar employees of an onsite contractor from distributing union-related handbills on the property.  Citing another decision that he was obligated to follow, Judge Kavanaugh stated that the NLRB had sole discretion to decide this issue, and that it “adequately considered and weighed the respective interests” in deciding the issue.  Thus, Judge Kavanaugh held that the NLRB’s decision that the property owner violated the NLRA should be enforced.

At the same time, however, Judge Kavanaugh is not reluctant to hold that the NLRB’s decision was wrong.  In fact, seven of his twelve authored opinions do just that. Continue Reading

Supreme Court Decision Strikes Down Mandatory Agency Fee Payments to Public Sector Unions

Posted in Courts, Unions

Today the U.S. Supreme Court issued a decision in the closely watched case of Janus v. AFSCME.  In a landmark ruling, the Court held that public sector employees cannot be forced to pay mandatory fees to a public sector union if they are not a member of the union.  As discussed in our previous blog post, this case involved a child support specialist in the Illinois Department of Healthcare and Family Services, who is not a member of the American Federation of State, County, and Municipal Employees (AFSCME), but nonetheless was required to pay agency fees to the union as a state employee.  Janus follows the Court’s 4-4 split on this issue back in March 2016 in an opinion issued following the death of Justice Scalia.

The pivotal vote in the 5-4 ruling was Justice Neil Gorsuch, who replaced Justice Scalia.   Justice Gorsuch was widely expected to side with those voting to overturn the law, just as Justice Scalia had been expected to vote in the previous case.  All the other justices voted the same as they did in March 2016.  The Court’s decision overturned a Supreme Court precedent from the 1970s that allowed public unions to collect mandatory fees from all employees, both union members and non-members.

The Court’s primary reasoning was that requiring nonconsenting employees to pay mandatory agency fees violated the First Amendment’s protection against subsidizing the speech of other private speakers. The justifications behind the old precedent, that agency fees promoted an interest in “labor peace” and avoided the risk of free riders, were insufficient.  Agency fees had not been shown to promote labor peace, especially because the federal government and numerous states had laws prohibiting such fees yet still had peaceful public sector labor relations.  Moreover, avoiding the risk of free riders was not a compelling enough reason to merit the violation of individuals’ First Amendment rights. Continue Reading

New NLRB Guidance Gives The Green Light On Common Sense Employee Work Rules

Posted in Employee Handbooks, NLRB

Last December, the NLRB recently established a new standard for determining the lawfulness of facially neutral employee handbook policies that “may” restrict the exercise of an employee’s NLRA rights.  As more fully discussed in our prior post, in Boeing Company the NLRB rejected its previous standard for reviewing employer rules and replaced it with a balancing test.   The NLRB also established three different categories of rules that it would examine in future decisions.  In creating the categories, however, the NLRB gave few examples of the types of rules that may fall into each category.

To provide clarity on the new standard, NLRB General Counsel Peter Robb (R) has now issued a 20-page Guidance on Handbook Rulings Post-Boeing.  In an overall victory for employers, the GC emphasizes that post-Boeing, ambiguities in employer work rules and handbook policies will no longer be interpreted against employers.  Instead of analyzing whether a work rule could be interpreted as restricting employee NLRA rights, the new standard will only prohibit work rules that would be so interpreted.

Examples Of Category 1 Rules Deemed Lawful

In the Guidance, the GC provides multiple examples of rules said to fall into Category 1.  Importantly, many of these common work rules previously had come under intense scrutiny by the Obama NLRB as potentially “chilling” employee NLRA rights.  Now, the GC has directed NLRB regional offices not to issue ULP complaints for rules such as: Continue Reading

Will the federal government take over the UAW?

Posted in Union Organizing, Unions

The scandal involving former UAW officials and Chrysler executives has expanded. The U.S. Justice Department has now labeled the UAW and Fiat Chrysler Automobiles (FCA) as co-conspirators in the bribery and corruption scandal. Now, the UAW faces possible criminal fines and potential federal government oversight of its finances.

So far, the federal investigation has resulted in the indictment of seven former UAW officials and Chrysler executives and six criminal convictions. Both the UAW and Chrysler had stated that the corruption was the result of a few rogue employees. But, on June 12, the U.S. Justice Department formally named both the UAW and FCA as co-conspirators to violate the federal prohibitions against an employer paying off union officials and union officials from accepting those payments.

The allegations involve millions of dollars of payments from FCA to UAW officials in charge of negotiating Chrysler’s union contracts. The payments were allegedly made through a jointly administered UAW-FCA worker training center. Based on the indictments, the allegations now span over six years, from 2009 to 2015, and cover the terms of three UAW Presidents, Ron Gettelfinger, Bob King, and soon-to-retire Dennis Williams.

In Ohio, the UAW faces two class action lawsuits that UAW officials accepted bribes from Chrysler to take company-friendly bargaining positions at the expense of UAW workers.

Meanwhile the federal investigation continues and has expanded to the joint UAW-GM Center for Human Resources.

New Developments on the Joint Employer Standard

Posted in NLRB, Rulemaking

The NLRB intends to publish a notice of proposed rulemaking on the joint employer issue sometime this summer.  The NLRB had previously announced its intent to consider rulemaking on this issue, and our prior post on the subject explains in detail the background of the issue for those who are unfamiliar.

The disclosure came in the body of a letter that Chairman Ring (R) wrote to Sens. Warren (D), Sanders (I), and Gillibrand (D), which was released today.  In a letter to Chairman Ring last month, these senators raised concerns about the NLRB’s announced intent to consider a rule on joint employer status, and referenced (among other things) the ethical issues associated with Member Emanuel’s (R) role in a prior case involving the joint employer standard.

So, apparently in just a few months, labor professionals will have a new proposed rule from the NLRB to consider.  As a result of proceeding through rulemaking, the public will have an opportunity to comment on the rule.  When details of the proposed rule become available, look for a summary of them on this blog.  Until a final rule is adopted or the NLRB holds to the contrary, however, the expansive rule favoring joint employer status, as announced in the BFI decision, will remain in effect.

Union Wins in Micro Unit at Boeing’s South Carolina Plant

Posted in Union Organizing

Developments at the Boeing plant in Charleston, South Carolina, prove that the specter of micro bargaining units was not put to rest by the NLRB’s return to the traditional community of interest analysis this past December.  Late last week, a group of 178 employees out of a workforce of approximately 7,000 at Boeing’s plant voted to unionize.  (Last year, a substantially larger group of employees voted overwhelmingly against union representation.)  The recent vote, along with the approval of the micro unit, continues the trend from 2011 to 2017 when the NLRB followed the “overwhelming community of interest” test, which was conducive to micro units representing only a portion of employees at any particular workplace.

For decades, the NLRB followed the traditional community of interest test for determining the makeup of bargaining units.  In 2011, the Specialty Healthcare decision instituted an “overwhelming community of interest” test for determining an appropriate bargaining unit, which encouraged a trend of micro units.  The employer’s burden proved difficult to meet, and for years the Specialty Healthcare decision permitted micro units within larger groups of employees to vote on union representation without seeking input from other employees.  The NLRB’s approval of micro units permitted multiple different units (and potentially unions) at one facility and enabled unions to establish a presence through a small group of employees at a facility that may not otherwise have voted to unionize under the traditional community of interest test.

As we previously wrote, in December 2017 the NLRB overturned Specialty Healthcare and returned to the traditional community of interest test with its decision in PCC Structurals.  Under the traditional test, the party opposing the bargaining unit does not need to make any “overwhelming community of interest” showing.  Rather, to approve a proposed group of employees as an appropriate bargaining unit, the NLRB must make the determination that excluded employees are sufficiently distinct from those employees in the proposed group without any extra burden being placed on the opposing party. Continue Reading

NLRB May Issue Rule on Joint Employer Standard

Posted in NLRB, Rulemaking

The NLRB today published a notice that it was considering issuing a proposed rule on joint employer status.  “Joint employer” refers to the question of whether one business can be considered the employer of another business’ employees.

This question has been a hot topic for many years.  It was at issue in the Obama NLRB’s much discussed BFI decision in 2015, which was covered on this blog here.  More recently, the Trump NLRB issued the Hy-Brand decision overruling BFI.  But, as a result of a recusal issue involving Member Emanuel, the Hy-Brand decision was later vacated.

In a press release about the notice, NLRB Chairman Ring (R) described the joint employer issue as “one of the most critical issues” in labor law.  He expressed his view that rulemaking would offer the “best vehicle to fully consider all views on what the standard ought to be.”  Interestingly, the press release notes that the decision to include the proposed rulemaking on the regulatory agenda did not “reflect the participation of” Members Pearce (D) and McFerran (D).

For labor professionals, this development is certainly an important one to watch.  The NLRB has historically not exercised its rulemaking authority very often.  So, the decision to pursue rulemaking in this situation where it has traditionally relied upon decisions in specific cases that come before it is a significant one for practitioners in the field.

Other than a commitment to issue a proposed rule “as soon as possible,” neither the NLRB’s published notice nor the press release provide a specific timeline for publication of a proposed rule.  Stay tuned to vorysonlabor.com for additional updates.

NLRB Says Portions of Hospital Policy on Dress and Grooming Standards Invalid

Posted in Employee Handbooks

Recently, the NLRB held in a 2-1 decision that a California hospital’s policies barring employees from wearing unapproved pins or badge reels violated the NLRA.  Interestingly, the NLRB did not cite its new Boeing test in either the majority or dissenting opinions.

At issue were two hospital policies impacting the wearing of union insignia. The first policy stated that only hospital approved pins, badges, and professional certifications could be worn by employees. The second stated that direct care employees could only use badge reels branded with hospital approved logos or text.

The NLRB has long recognized that employees have a protected right to wear union insignia in the workplace absent special circumstances. However, the NLRB has also long held that there is greater flexibility to this general rule as it applies to healthcare facilities. Continue Reading