Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

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Robb also rescinded several memoranda from the prior General Counsel and decided that the General Counsel’s office will no longer seek to: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

Supreme Court Poised to Potentially Strike Down Mandatory Union Dues in the Public Sector

Posted in Courts, Union Membership

The Supreme Court announced on Thursday that it will re-visit the issue of whether public sector employees can be made to pay mandatory fees to a public sector union despite not being a member of the union. As readers of this blog will recall, this question was at the center of a Supreme Court decision back in March 2016, where the Court split 4-4 on the issue, with former Justice Antonin Scalia’s seat not yet filled. The new case, Janus v. AFSCME, involves a child support specialist in the Illinois Department of Healthcare and Family Services who is not a member of AFSCME (the American Federation of State, County, and Municipal Employees), but is nonetheless required to pay agency fees to the union as a state employee.

With the only difference in the Court’s makeup today being Justice Neil Gorsuch, the Court could very well strike down mandatory fees in the public sector.  Currently, Supreme Court precedent from the 1970s allows public unions to collect mandatory fees from all employees, both union members and non-members.

Arguments against this requirement are based on the First Amendment. One argument asserts that a person who is forced to subsidize a union they are not a member of is deprived of their right of free association with organizations of their choice.  Another argument asserts that mandatory union dues or fees compels an employee to support speech with which they do not agree.  Mr. Janus has written publicly about his views on mandatory union dues in an article the Chicago Tribune published at the time the 2016 case was pending.

Supreme Court observers expect oral arguments in Janus to be heard around January, with a decision to be issued sometime before the Court’s scheduled recess in June 2018.  A ruling in favor of the employee will have major implications for employees, unions, public employers, and even citizens of those states where the law permits mandatory union dues for public employees.

Emanuel Confirmed, NLRB Majority Republican for First Time in a Decade

Posted in NLRB

The Senate, by a vote of 49-47, confirmed the appointment of William Emanuel to the NLRB on September 25, 2017, giving the NLRB its first Republican majority since 2007.  Emanuel, along with Marvin Kaplan, join Chairman Miscimarra to form a NLRB majority that is likely to begin reversing the direction the NLRB took during the Obama Administration.

Emanuel is a former management-side attorney in Los Angeles, and it is widely expected that he will interpret labor issues from the management-side perspective, accounting for business realities and other employer considerations that were previously cast aside by the NLRB.

Though Emanuel finally gives the NLRB a Republican majority, it is unclear how quickly the NLRB will move to turn back the pro-union decisions that have been issued in the last decade. Chairman Miscimarra has announced that he will retire when his term ends on December 16, 2017, which means the Republican majority will only last for roughly two and a half months before Miscimarra’s vacancy causes the appointment and confirmation process to begin all over again.

With such limited time for the Republican majority to issue decisions, we may not see major movement in NLRB precedents until well into 2018 once a more permanent trio of Republicans are in place.

Update on NLRB Vacancies

Posted in NLRB

As readers of this blog know, the Trump administration began its time in office with two vacancies on the NLRB.  After some delay, nominations were finally announced for these positions, and included William Emanuel, a management side labor lawyer for a large, national labor and employment law firm, and Marvin Kaplan, an attorney working for the Occupational Safety and Health Administration.  Both Messrs. Emanuel and Kaplan are Republican, and the NLRB has historically had a majority of its members drawn from the party of the President.

On August 3, the U.S. Senate voted 50-48 to confirm Mr. Kaplan.  He was sworn in at the NLRB on August 10, taking over the seat previously occupied by Member Johnson (R).  This seat had been vacant since August 2015.  Member Kaplan’s term runs until August 27, 2020.

A Senate vote on Mr. Emanuel is not yet scheduled.  He drew particularly sharp questions during his confirmation hearing from Democratic Senators, including Elizabeth Warren (D-Mass.).  Hopefully, the Senate will act upon its return from its August recess.

Meanwhile, Chairman Miscimarra (R) announced earlier this month that he will leave the NLRB when his term expires in December 2017.  In a letter to NLRB staff, Chairman Miscimarra cited personal, family reasons for his decision to leave.  The employer community will certainly miss Chairman Miscimarra’s presence on the NLRB.  How quickly President Trump will nominate a person to replace Chairman Miscimarra is uncertain.

For labor professionals, especially those representing management, these personnel-related developments raise even more uncertainty over when they may see relief from the steady progression of more union-friendly rulings from the Obama NLRB.  If the confirmation of Mr. Emanuel is substantially delayed, there will be little time during which a 3-2 majority exists for President Trump’s appointments, before returning to, at best, a tie or to the status quo up to Member Kaplan joining the NLRB.  That status quo was a Democratic majority.  I will continue to monitor these developments and let you know as significant events occur.

Court of Appeals Reverses NLRB Holding in Joint Employer Case

Posted in Courts

Earlier this month, the D.C. Circuit Court of Appeals slowed down the NLRB’s move towards a relaxed test for whether a business is a joint employer for the purposes of the NLRA. While on first blush, the decision might seem to be good news for businesses that use staffing companies, or that subcontract business functions to other companies, it ultimately leaves open the possibility that the court may yet uphold an expanded joint employer rule.

At issue in last week’s case before the D.C. Circuit was CNN’s decision to terminate its contract with a staffing company that supplied camera operators. The union representing the employees filed a ULP, alleging that CNN was a joint employer, but failed to bargain with the union over its decision to terminate the staffing contract.

As of 2014, when the NLRB heard the case, the standard it followed to determine joint employer status required a business to have “direct and immediate control” over the actions and duties of workers. In the CNN case, however, the NLRB backtracked from this standard without expressly overruling it, stating that CNN merely needed to “share or codetermine” the essential terms and conditions of employment. Continue Reading