Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

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.

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