Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

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.

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