Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

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

Senate Confirms Ring for NLRB

Posted in NLRB

The U.S. Senate voted yesterday by a narrow 50-48 margin to confirm the nomination of John Ring (R) to the NLRB.  Prior to his nomination, Ring was an attorney representing management at a large law firm.  The confirmation of his appointment returns the NLRB to a 3-2 Republican majority.

Late last year, the NLRB also had a brief period in which a 3-2 Republican majority existed.  During that time, the NLRB issued a number of decisions overturning rulings from the Obama NLRB.  One of those decisions has since been rescinded based on concerns about the participation in the decision of one of the Republican members.

For the labor professional, this development means that it is reasonable to expect additional reversals of NLRB decisions during the Obama NLRB years.  Stay tuned to vorysonlabor.com for updates on those decisions as they are issued.

Protesting, Non-Union Worker Did Not Lose NLRA Protections

Posted in Employee Discipline, NLRB

Some precedent at the NLRB may be changing, but some is not.  Relying on a 40-year old case, the NLRB recently ruled that an Ohio manufacturer violated the NLRA when it

suspended and discharged a non-union employee for complaining about working conditions.  Meyer Tool, Inc., 366 N.L.R.B. No. 32 (March 9, 2018).

The employer argued that the employee lost his NLRA protections when he became threatening and intimidating during an argument with the vice president of operations and with the human resources manager.  The NLRB, however, found that management provoked and escalated the argument.  The NLRB determined that the vice president was the one yelling and in the employee’s face during an argument about the new “go-to-guy” on the third shift. Continue Reading

NLRB Drops More Demanding Joint Employer Test . . . For Now

Posted in NLRB

On Monday, the NLRB vacated its decision in Hy-Brand Industry ContractorsAs we discussed on this blog in December, the Hy-Brand decision adopted a more demanding test for determining when multiple employers are considered joint employers.

Monday’s decision comes on the heels of a report from the NLRB’s Office of the Inspector General (“OIG”). The OIG is an independent office within the agency whose job it is to “to prevent and detect fraud, waste, abuse, and mismanagement, and to promote economy and efficiency in government.”  The OIG criticized the involvement of Board Member William J. Emanuel (R) in the Hy-Brand decision.

Emanuel’s former law firm represented the employer in the Browning-Ferris Industries decision, and the NLRB considered the facts and arguments of the Browning-Ferris parties in Hy-Brand.  The OIG report noted that the effect of the Hy-Brand decision-making process was a “‘do over’ for the Browning-Ferris parties.”  Accordingly, the OIG concluded that an Executive Order from President Trump would have prohibited Member Emanuel from participating in the decision.

In vacating the Hy-Brand decision, the NLRB returns to the Browning-Ferris Industries test that an employer is a joint employer if it has indirect or potential control over workers — at least for now.  Given that the Browning-Ferris joint employer test was one of the more controversial decisions during the Obama administration, the NLRB will likely try to overturn it again, especially when the NLRB becomes once again majority Republican.

 

Unauthorized PTO Deductions from Striking Employees Unlawful, Says Division of Advice

Posted in Strikes

Deducting paid time off (“PTO”) from employees for time spent on strike without their permission violates the NLRA, according to a memorandum from the NLRB’s Division of Advice. The memorandum, authored in 2016, was released earlier this month.

A company that operates ground handling and terminal services for several airlines in Philadelphia became embroiled in a union organizing drive. Apparently in connection with the union’s ongoing efforts, it organized several one-day strikes against the employer.  During two of these three strikes, the employer had a new PTO policy in effect.

Some employees requested PTO for the day spent striking and others did not. However, the employer deducted a day of PTO from all striking employees’ leave banks regardless of whether the employee requested it.  The employer did not ask the striking employee whether the employee wanted to use PTO, although employees were allowed to decline PTO for other types of absences.

The Division of Advice explained that when an employer (1) deducts its employees’ PTO without their permission and (2) cannot show it would similarly treat non-striking employees, a violation of Sections 8(a)(1) and (3) of the NLRA has occurred and a complaint should be issued. Continue Reading

NLRB Extends Time to Respond to Request for Information on 2014 Election Rule

Posted in Elections, NLRB

The 2014 Election Rule is here to stay— at least for the next two months.  On Friday, the NLRB extended the time for filing responses to the Request for Information until March 19, 2018.

As we previously reported, the 2014 Election Rule, also known as the “ambush” or “quickie” election rule, speeds up the representation election procedure and allows union votes to occur more quickly than in previous years.  The Request for Information asks the public to provide input on whether the 2014 Election Rule should remain, be modified, or be overturned altogether. The Request for Information was originally approved in December 2017, when the NLRB was majority GOP (the NLRB has been evenly split between Republicans and Democrats since Chairman Miscimarra (R) stepped down last month).

In delaying the date to respond to the Request for Information, and thus delaying any decision on the 2014 Election Rule, the NLRB may be waiting to see if the Senate confirms management-side attorney John Ring, whom President Trump nominated earlier this month.  Ring’s confirmation would return the NLRB to a GOP majority and allow the NLRB to quickly overturn Obama-era decisions, as well as engage in rulemaking to overturn or otherwise modify the 2014 Election Rule.