Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Republican Majority on the Horizon for NLRB with Nomination of Management Attorney

Posted in NLRB

The NLRB may soon have a full complement of members, with Republicans back in the majority.  On January 12, 2018, President Trump nominated management-side attorney John Ring (R) to fill the single vacancy on the NLRB that opened when former Chairman Philip Miscimarra (R) stepped down last year.

Ring is currently the co-leader of a large firm’s labor/management relations practice, where his practice involves work on labor contracts, benefit funds, and corporate restructuring on behalf of management.  If the Senate confirms Ring, the NLRB, which is now equally divided between Republicans and Democrats, would have a 3-2 GOP majority through at least 2020.

Whether Ring is confirmed by the Senate is yet to be seen.  Ring will likely face scrutiny during his confirmation hearing from Democrats given his management-side practice.  Stay tuned for updates.

Out of the Criminal Indictments of UAW and Chrysler Officials Comes Two Class Action Lawsuits

Posted in Union Organizing, Unions

As previously covered by this blog, the U.S. Justice Department has thus far indicted two former UAW officials and two former Chrysler officials in an embezzlement scandal involving the joint UAW-Chrysler training center.  Now two classes of Chrysler workers have filed civil lawsuits against both the UAW and Chrysler’s parent, FCA US LLC based on those indictments.  The lawsuits claim that former UAW Vice President General Holiefield and his team accepted bribes from Chrysler to take company-friendly bargaining positions at the expense of UAW members.

One class action alleges that UAW VP Holiefield and his subordinates negotiated away seniority rights and better retirement and health benefits in a scheme concerning jobs in the Jeep Wrangler plant’s paint shop.  Sheets, et al. v. FCA US LLC, et al., No. 3:18-cv-00085 (N.D. Ohio Jan. 11, 2018).  The other class action alleges that, during these same negotiations, the UAW and Chrysler agreed to “retire” over 70 employees of the same paint shop to create job openings.  The complaint further alleges that certain UAW officials developed a lucrative side business of selling these open positions.  DeShetler, Jr., et al. v. FCA US LLC, et al. No. 3:18-cv-00078 (N.D. Ohio Jan. 11, 2018).  The lawsuits claim that both the UAW and Chrysler violated the federal Labor Management Relations Act in this bribery scheme.

There could be a wave of such lawsuits by any Chrysler worker who was somehow disadvantaged in the recent UAW-Chrysler bargaining agreements.

Employee Handbooks: The NLRB Pendulum Swings Back Toward Common Sense And Workplace Civility

Posted in Employee Handbooks

The NLRB has recently brought a measure of common sense back to its review of employer policies, including employee handbooks. Since 2004, as a result of the NLRB’s Lutheran Heritage Village-Livonia decision, many facially neutral workplace rules and handbook policies have been held to be an unlawful interference with employees’ rights protected by the NLRA.

Under the Lutheran Heritage standard, a workplace rule or handbook policy—even though not specifically prohibiting NLRA-protected activities—could still be unlawful if it could be “reasonably construed” as restricting the exercise of an employee’s NLRA rights.

Last month, the NLRB reconsidered the Lutheran Heritage standard, and in a 3-2 decision involving The Boeing Company, determined that the standard was unworkable, difficult to apply, and led to immense uncertainty for employers.  The NLRB spent significant time highlighting the “absurdity” of the prior standard, which led the NLRB to invalidate many common sense workplace rules “that most people would reasonably expect every employer to maintain.”

Accordingly, the NLRB established a new test with respect to the legality of facially neutral work rules and handbook policies. Now, the NLRB will consider two factors when evaluating whether a facially neutral work rule or policy potentially interferes with employees’ exercise of their NLRA rights:  (1) the nature and extent of the potential impact on NLRA rights; and (2) legitimate justifications associated with the employer’s rule. Continue Reading

Could the UAW’s Micro-Unit Election Win at VW be Overturned?

Posted in Elections, Union Organizing, Unions

In a one-sentence order, the United States Court of Appeals in D.C. may have set the stage for Volkswagen to overturn a UAW election win.  After the new Republican majority on the NLRB reversed the Obama Board’s micro-unit decision, the NLRB then moved to have the Volkswagen case sent back to it for further review.  On December 26, the Court of Appeals granted the NLRB’s motion and sent the case back to the NLRB.

In December 2015, the UAW won an election for a micro-unit of VW’s maintenance workers.  VW refused to bargain with the UAW because it argued that the small unit was not an appropriate unit for bargaining.  The Obama-appointed NLRB ruled in favor of the UAW and ordered VW to recognize the UAW as the bargaining agent of the small unit and bargain with it, but VW then appealed to the U.S. Court of Appeals.

The basis for the Obama Board’s decision in favor of the UAW was its Specialty Healthcare decision recognizing micro-units or small groups within a workforce.  Now that the NLRB has overturned Specialty Healthcare in PCC Structurals, the whole underpinning of the UAW’s victory can be questioned.  Once the NLRB is back to its full complement of five Members, the NLRB will likely question the previous Board’s decision in the Volkswagen case.  It does not bode well for the UAW.

General Counsel’s New Procedures for Bargaining Unit Determinations Will Impact Pending Representation Cases

Posted in Elections, Union Organizing

On the heels of the NLRB’s recent decision changing the approach to determining whether a proposed bargaining unit is appropriate, the NLRB General Counsel issued a memorandum explaining how regional offices around the country should apply that decision to pending election cases.   As we discussed on this blog last week, the NLRB’s recent decision in PCC Structurals returned to the traditional test for determining the appropriateness of a proposed bargaining unit.  That test considers multiple factors, including but not limited to whether the included employees have distinct skills and training and are separately supervised.

The General Counsel’s memorandum, issued last Friday, provides instructions to regional offices around the country in the wake of the NLRB’s decision. One of the most significant directives in the memorandum is for the regional office to consider a party’s request to withdraw from an election agreement or reconsider a unit determination decision in a currently active case.  Thus, an employer could argue that a bargaining unit is no longer appropriate under the traditional test — even if an election has already been held.  Where no party makes a request, the Region should issue a Notice to Show Cause that directs any party to show cause, with specific information, why the bargaining unit is inappropriate pursuant to the traditional community of interest factors.

Additionally, the General Counsel’s memorandum explained that when there are questions about the appropriateness of a bargaining unit:

  • the hearing may be held more than eight days after the parties receive notice of the hearing;
  • the hearing may be postponed;
  • the Statement of Position’s due date may be delayed for up to two days upon the necessary showing from a party; and
  • the Regional Director may change the date for the election to make it an appropriate date in the circumstances of the case.

The General Counsel finally noted that employers should address the appropriateness of the proposed bargaining units in their Statements of Position. These are required under the NLRB’s election rule published just over three years ago.  Specifically, employers should explain the classifications, locations, and employee groupings that must be added to or excluded from the proposed units.  Employers should also be ready to address any issue raised by the union about the units.

For the labor professional, this is a very significant development, and requires prompt attention and consideration. If a representation case is currently pending in which a stipulated or directed election is scheduled or has been conducted, the General Counsel’s memorandum means that consideration should be given to whether the bargaining unit question should be revisited.

Another NLRB Course Reversal: Union Organizing in “Micro-Units”

Posted in NLRB, Union Organizing

In the final days of Chairman Philip Miscimarra’s (R) term, we have seen a flurry of decisions that reverse the outcome of cases decided during the Obama Board years. Friday, the last day of Chairman Miscimarra’s term, was no different.  In the NLRB majority’s sights this time was the union-friendly Specialty Healthcare decision that made it easier for unions to organize small groups of employees.  This time, however, the NLRB abandoned the “overwhelming community of interest” test and returned to the “traditional test” for determining whether a proposed bargaining unit is appropriate.

As we previously wrote, under the Specialty Healthcare decision, a proposed bargaining unit was appropriate if the group was readily identifiable and the NLRB found that the employees shared a “community of interest.”  When the employer argued that the proposed bargaining unit inappropriately excluded certain employees, the employer had to show that the excluded employees shared an “overwhelming community of interest” with the employees in the proposed unit.  This decision allowed “micro units” within larger groups of employees to vote on union representation without seeking input from the other employees.

On Friday, the NLRB determined that Specialty Healthcare was “fundamentally flawed” and returned to the “traditional” test for determining whether a proposed bargaining unit is appropriate. This traditional test requires the NLRB to assess multiple factors to determine the appropriateness of the bargaining unit:

Continue Reading

Beginning of the End for the NLRB’s Election Rule? Trump Board Issues Request for Information

Posted in Elections, Rulemaking

On Wednesday, the NLRB announced that it would ask for public input on the 2014 Election Rule, sometimes known as the “ambush” or “quickie” election rule.  The 2014 Election Rule speeds up the representation election procedure, allowing union votes to occur in much less time than was previously the case.  For example, as we previously reported, under the rule, “ordinary” disputes about eligibility to vote or inclusion in the bargaining union do not have to be resolved before the election.

The NLRB is now seeking the public’s responses to the following questions:

  1. Should the 2014 Election Rule be retained without change?
  2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
  3. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?

Continue Reading

NLRB Returns to a More Demanding Joint Employer Test

Posted in NLRB

Yesterday, the NLRB overruled the Obama-era Browning-Ferris Industries decision and returned to an older, more demanding test for determining when multiple employers are joint employers.

First, a little history.  For a long time, employers could only be considered “joint employers” if they each exercised direct and immediate control over employees.  Joint employers can be liable for unfair labor practices and could be obligated to negotiate collective bargaining agreements together — even when they do not directly hire and pay the employees.  In 2015, the NLRB decided in Browning-Ferris Industries that employers could be joint employers if there was evidence that a company has indirect or even potential control over workers technically employed by another company.

In Hy-Brand Industry Contractors, Ltd., decided Thursday, the Republican-majority NLRB decided that Browning-Ferris Industries decision was “vague and ill-defined” and had “fundamentally altered” the NLRA.  The NLRB then returned to the prior joint employer test, which requires a showing that the employers exercise direct and immediate control over the employees. Continue Reading

New Year, New Direction? Possible Decisions from The Trump NLRB in 2018 and Beyond

Posted in NLRB

Just a few months after the NLRB became majority Republican, there are early signs that the agency may be taking a new direction in 2018.  Peter Robb, the NLRB’s new General Counsel, sent a memorandum to all Regional Directors, Officers-in-Charge, and Resident Officers in early December.

In his memorandum, which followed a practice that prior General Counsels utilized, Robb indicated that he might be inclined to offer the NLRB with “an alternative analysis” of existing case law, including:

  • concerted activity for mutual aid and protection;
  • common employer handbook rules that the Obama NLRB had found unlawful;
  • employee access to employer email systems to engage in Section 7 activities;
  • work stoppages;
  • off-duty employees’ access to property;
  • Weingarten rights;
  • disparate treatment of represented employees during contract negotiations;
  • joint employer status;
  • successorship;
  • witness statements;
  • dues check-off; and
  • remedies.

In all likelihood, this “alternative analysis” will be a theory that seeks reversal of earlier precedents, particularly those from the Obama NLRB era, in the foregoing areas.  The General Counsel was careful to note that this list is not exhaustive.

Robb also rescinded several memoranda from the prior General Counsel and decided that the General Counsel’s office will no longer seek to:

  • allow employees to use employer electronic systems to engage in Section 7 activities;
  • prevent employers during organizing campaigns to say to employees that they will not be able to discuss matters directly with management if they select union representation;
  • require the employer to show that a salt would not have remained with the company for the duration of the backpay period;
  • argue that a misclassification of employees as independent contractors violates Section 8(a)(1); and
  • apply Weingarten in non-union settings.

While the General Counsel doesn’t decide what the law is, he does decide which cases get prosecuted.  Thus, the enforcement shift the memorandum signals could ultimately lead to the NLRB’s pendulum swinging increasingly in the direction of employer-friendly outcomes in the coming years.  At the very minimum, the chief “prosecutor” of NLRA violations will at least not be looking to expand the law in ways that are problematic for employers.  Check back with us as we continue to provide updates on the Trump NLRB.

CBAs May Bar Ohio Public Employees from Bringing IIED Claims in State Court

Posted in Arbitration, Courts

An Ohio court of appeals recently determined that a union contract may bar public employees from bringing intentional infliction of emotional distress (IIED) claims against their employers.  In Marzano v. Struthers City School District Board of Education, the applicable CBA stated that all disagreements about work situations and concerns about possible violations of the agreement regarding working conditions would be resolved through a grievance procedure.  A public employee covered by the CBA filed an IIED claim in court against her employer.  The lawsuit was dismissed.

The court explained that Ohio law provides that if a CBA contains grievance procedures, these procedures are the exclusive remedy for violations of a public employee’s employment rights.  Thus, a public employee cannot bring an IIED claim against an employer in the state courts if the facts underlying the claim fall within the scope of the CBA.  The facts underlying the employee’s IIED claim boiled down to a disagreement about working conditions and/or a concern that the CBA’s terms concerning working conditions had been violated — topics that fell within the scope of the CBA.  The appellate court affirmed the dismissal.

Two other appellate courts in Ohio have similarly decided that a CBA may bar public employees from bringing IIED claims against their employers if the underlying facts fall within the union contract. Of course, we will need to see if the Ohio Supreme Court will accept this take on CBAs.  In the meantime, labor professionals, particularly those in the public sector, who encounter an IIED claim in Ohio state courts should first check to see if the facts alleged by the employee fall within the scope of the CBA.