Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

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:

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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?

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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.

Senate Confirms Peter Robb to Serve as NLRB General Counsel

Posted in NLRB

The Senate confirmed the appointment of Peter Robb as NLRB General Counsel on November 8, 2017, by a final vote of 49-46.

Robb will take over as the chief enforcer for the NLRB, and represents a dramatic departure from his predecessor Richard Griffin, who pursued a number of cases that changed NLRB law in ways unfavorable to business owners.  Robb, on the other hand, is known for being the attorney who helped defend President Ronald Reagan’s firing of striking air traffic controllers in the early 80’s.

As this blog has been covering for some time, the winds of change continue to blow at the NLRB, which is undergoing significant leadership turnover under President Trump.  Robb is a director at a management-side law firm, and is expected to re-orient the NLRB to step away from the more expansive, union-friendly decisions issued during the Obama administration.

As General Counsel, Robb will control how unfair labor practice charges are litigated before the NLRB. Robb will also control what cases will be presented to the new Republican-majority NLRB, though as previously covered, that majority will only last until December 16, when Chairman Philip Miscimarra’s term will end.  Member Miscimarra has previously announced he will not seek a new term on the NLRB.

That small window of time means that cases initiated by Robb will not likely make it to the NLRB before Member Miscimarra retires.  So, employers will need to continue to wait for the appointment process to sort itself out before Robb will have a chance to queue up cases for a Republican-majority NLRB.

Fuyao Workers Reject the UAW by 2-to-1 Margin

Posted in Union Organizing

After two days of voting in a secret-ballot NLRB election, production and maintenance workers at the Moraine, Ohio Fuyao glass plant rejected the UAW.  The final vote tally was 886 “No” votes to 441 “Yes” votes.

This is the third major defeat of the UAW among auto manufacturing and auto supplier companies in as many years.  In 2014, Volkswagen workers in Chattanooga rejected the UAW.  In August of this year, Nissan workers in Canton, Mississippi voted against the UAW by a 2-to-1 margin.  In each of these campaigns, the UAW spent years trying to gain support, but was ultimately rejected at the polls.

Where does the UAW go from here?  It may be federal criminal court.  The U.S. Justice Department has expanded its investigation in Detroit involving the UAW’s training center.   The FBI is now investigating corruption allegations involving various UAW Vice Presidents, and GM, Ford and Chrysler officials.

Fuyao Workers to Vote on UAW Representation on November 8 and 9

Posted in Union Organizing

On October 25, Fuyao Glass America, the UAW and the NLRB reached an election agreement for an NLRB-supervised, secret-ballot election at the Fuyao plant in Moraine, Ohio. Approximately 1,500 Fuyao production and maintenance workers will vote on whether to designate the UAW as their collective bargaining agent. The election is set for Wednesday, November 8 through Thursday, November 9.

The UAW filed its election petition on October 16. Thus, there will be only 23 days between the filing of the election petition and the opening of the polls for the vote. The short time frame demonstrates the continuing vitality of the “quickie” election rule the NLRB adopted in 2014.

The NLRB is expected to announce the results of the election around 7:30 p.m. on Thursday, November 9.

UAW Files NLRB Election Petition to Represent Fuyao Glass Workers

Posted in Union Organizing

On October 16, the UAW filed a petition to represent approximately 1,500 production and maintenance workers at Fuyao’s glass plant in Moraine, Ohio.

Fuyao, a Chinese glass company, supplies Ford, GM, Honda and Toyota from the Moraine plant, which was once a GM auto plant. GM closed the auto plant during the 2008 recession, and Fuyao began glass production at the plant in 2014.

The UAW’s election petition follows several years of campaigning.  Under the NLRB’s current election rules, Fuyao has until Monday, October 23, to file its position statement with the NLRB concerning any issues it has with the UAW’s petition.  The NLRB has set a hearing for October 25 to consider any objections or issues with the petition and to set an election date.  In lieu of a hearing, the UAW, Fuyao and the NLRB could reach an election agreement as to the date and time of the election.