the obama nlrb’s legacy: how much will survive?
Post on 22-May-2022
3 Views
Preview:
TRANSCRIPT
Seyfarth Shaw LLP “Seyfarth Shaw” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). Seyfarth Shaw LLP
The Obama NLRB’s Legacy: How Much Will Survive?
Jack A. Lambremont, Braford L. Livingston,
John L. Telford, and Kyllan B. Kershaw
1
AGENDA
• Introduction: How the NLRB Operates
• The Obama NLRB Legacy of Expanding…
– Who the NLRA Covers
– Employee Protections
– Union Organizing
– Union Power versus Employers
• What may Change
• Questions
2
How the NLRB Operates
• 5 Board Members
• 1 General Counsel
3
How the NLRB Operates
“Today’s decision confirms that the NLRB
has become the Rip Van Winkle of
administrative agencies.”
- Then NLRB Member (and former union
lawyer) Wilma Liebman, dissenting in
Register Guard, 351 NLRB 1110 (2007)
4
How the NLRB Operates
• That was then, this is now
• While Washington Irving may be the
story’s author, it is not Rip Van Winkle, but
the Legend of Sleepy Hollow
5
Who the NLRA Covers
• Expanded Definition of “Employees”
• A punt turns into a kick in the pants:
Northwestern University
• Grad students teach their colleges a
lesson: Columbia University
• There’s just no managing adjunct (and
even tenure track) faculty: Pacific Lutheran
University
6
Who the NLRA Covers
• Expanded Definition of “Employees”
– You’re not the boss of me: Supervisory
Status
– Playing poker against the house with a
stacked deck: Independent Contractor
Status
7
Who the NLRA Covers
• Expanded Definition of “Employers”
– BFI
– Miller & Anderson
– CNN
8
9
Instead of attempting to balance
conflicting interests, the NLRB reacts
like a pinball machine stuck on tilt;
reflexively ensuring employers always
lose a turn.
Hon. Janice Rogers Brown
U.S. Court of Appeals
D.C. Circuit
Workplace Policies and Rules
When Protected Activity Loses Its Protection
When is a Work Rule Unlawful?
• Lutheran Heritage: Would employees
reasonably construe the rule in question to
prohibit protected activities?
• Bush Board rule but current Board
overreaches and stretches limits in
application (i.e., 2015 Report Concerning
Employer Rules)
10
What Happens if Rule is Unlawful?
• GC Complaint to force employer to
remove language and post notices
– Can include notice posting via email and on
company intranet
• Unwanted consequences
– Negative publicity
– Ammunition for disgruntled employees and
union organizers
– Undesirable inferences in ULP cases
11
Board’s War on Civility: Examples
• Code of Conduct prohibiting “offensive”
conduct towards patients or fellow
employees
12
Board’s War on Civility: Examples
• Code of Conduct prohibiting conduct "that
impedes harmonious interactions and
relationships”
13
Board’s War on Civility: Examples
• Code of Conduct prohibiting "negative or
disparaging comments about the moral
character or professional capabilities of
an[other] employee”
14
Board’s War on Civility: Examples
• Oral statement: "If you are harassed or
threatened on any basis during this
election campaign, regardless of whether
you are for or against the union, we want
to know about it immediately so we can
address the problem.”
15
Board’s War on Civility: Examples
• Employee Handbook prohibiting “insulting,
embarrassing, hurtful, or abusive
comments about other employees”
16
Considerations:
You can still prohibit violence, threats, and harassment based on sex, race,
etc.
The law allows “persistent” union solicitation, even to the point of
annoyance and disturbance (a.k.a. “harassment”)
Ask yourself: Do you need a written rule instructing employees to be nice,
respectful, positive, etc.?
What are the upsides and downsides?
So How Do We Make Our Employees
“Fight Nice”?
17
T-Mobile USA, Inc., 363 NLRB No. 171 (April 29, 2016)
Struck down the following: “[E]mployees may not tape or
otherwise make sound recordings of work-related or workplace
discussions.”
Important qualifiers:
“broadly prohibiting recording in the workplace on
employees’ own time and in nonwork areas”
rule not limited to states where nonconsensual recording is
unlawful (nor does it reference)
Policies Prohibiting Recording in the
Workplace
18
vs. NOT OK
• Broad prohibitions on
recording in the workplace
MAYBE OK?
• Tailored restrictions,
prohibiting recording in
working areas on working
time
• Tailored restrictions where
confidential information
exists
• Restrictions tailored to state
law requirements
19
So What’s an Employer to do?
Social Media!
20
• New Board with Republican majority
– Less expansive view of protected activity
– Return to Bush Board view of Lutheran Heritage: Would
employees reasonably construe the rule as prohibiting
Section 7 activity?
More focus on whether rule addresses legitimate business
interests
Rule at issue in Lutheran Heritage would have been found unlawful
by this Board—likely OK again
21
What Happens Now?
22
But money does not explain the Board’s bad faith;
‘the pleasure of being above the rest’ does. See C.S.
Lewis, MERE CHRISTIANITY 122 (Harper Collins 2001).
Let the word go forth: for however much the judiciary
has emboldened the administrative state, we ‘say
what the law is.’ Marbury, 5 U.S. (1 Cranch) at 177.
In other words, administrative hubris does not get the
last word under our Constitution. And citizens can
count on it.
Hon. Janice Rogers Brown
U.S. Court of Appeals
D.C. Circuit
Take Heart, Employers
Organizing and Elections: Fragmented,
Expedited, and Stacked Against
Employers
23
• Specialty Healthcare, 357 NLRB No. 83 (2011)
– A union can seek to organize any group that is “readily
identifiable” as long as employees share a community of
interest.
– A party challenging the petitioned-for unit must show that the
employees it seeks to include share an “overwhelming
community of interest” with the petitioned-for unit.
• Result: Proliferation of “micro-units”
24
Specialty Healthcare and “Micro-Units”
• Board decisions since 2011 demonstrate that establishing an
“overwhelming community of interest” is a substantial burden
• DPI Secuprint, Inc., 362 NLRB No. 172 (2015)
– a petitioned-for micro-unit may exclude a functionally
integrated group of employees and still be found appropriate
– “readily identifiable” simply means that the description of the
unit is sufficient to specify the group of employees the union
seeks to include
25
Specialty Healthcare and “Micro-Units”
• The New Rule went into effect on April 14, 2015
• Biggest change in the NLRB’s approach to union elections in
over 50 years
• It provides Unions a much quicker path to an election
• Streamlined election rules exacerbate problems created by
Specialty Healthcare
• What Has Changed??
26
The New World Order
• Electronic filing of petitions, with union setting forth proposed
date, time, place and manner of election
• Same day service of Notice of Hearing on employer is
common.
• Employers must post the revised “Initial Notice to Employees
of Election” within two business days of service of Notice of
Hearing.
– Must also distribute electronically if employer customarily
communicates that way
– Failure to post/distribute grounds for setting aside election
27
NLRB Rule on “Streamlined” Elections
• Statement of Position to identify disputed issues.
– Due seven days from notice of hearing (noon day prior to
hearing)
– Must state position on all issues and basis for its position,
such as: (i) unit appropriateness; (ii) classifications, locations
and groupings or who is in or out; (iii) challenges to voter
eligibility; and (iv) election details
– Issues not raised are waived
• Preliminary list of voters required as part of required
Statement of Position.
– Includes work locations, shifts, classifications
– Separate list for employees to be added or excluded
28
NLRB Rule on “Streamlined” Elections
• Pre-election hearings to open 8 days from the date of service
of the notice.
• The Representation Hearing:
– Limited to appropriateness and scope of bargaining unit. An
individual’s eligibility to vote or inclusion in unit ordinarily not
litigated (saved for after the election)
– Regional Director has ability to decide which issues may be
litigated and to limit evidence.
– Regional Director will have the authority to determine
whether post-hearing briefs may be filed.
• Practical Consequences: Employer dilemma regarding
putative supervisors (e.g., leads).
29
NLRB Rule on “Streamlined” Elections
• Decision and Direction of Election issued shortly after the hearing.
• Voter (Excelsior) Lists:
– Due within two business days from Decision and Direction of Election or approval of election agreement.
– Electronic format, including full names, home addresses, “available” non-business e-mail addresses, “available” non-business home and cell numbers, work locations, shifts and job classifications.
• Notice of Election: Must be posted for 3 full working days and distributed electronically if employer customarily communicates that way
• Failure to properly submit the Excelsior List and post the notice is grounds for setting aside election
30
NLRB Rule on “Streamlined” Elections
• The Election:
– Election must be set at “the earliest date practicable.”
– Not set time frames, but most elections likely will end up
being held within two or three weeks.
– Will substantially reduce an employer’s pre-vote opportunity
to litigate.
• Post-Election Procedures:
– Right to have the NLRB review decisions by a Regional
Director or an Administrative Law Judge has been
eliminated. Review is discretionary.
– Regional Director will set a post-election hearing 14 days
after the tally of ballots (or as soon thereafter as practicable).
31
NLRB Rule on “Streamlined” Elections
• The so-called “Quickie Election” rules are here to stay (unless a
different Board changes its mind).
– Legitimacy of rules affirmed by 5th Circuit in June; Judge in
D.C. Circuit likewise rejected similar challenge
• Given 5th Circuit’s reputation as a relatively conservative court,
future challenges to the rules are unlikely to succeed.
32
The NLRB’s Election Rules: Where Things Stand
• Changing the Rules would presumably require another Formal
Rulemaking process.
– Drafting NPRM
– Notice
– Comment
– Preparation of Final Rule
– Effective Date
• Rulemaking resulting in 2015 changes took 14 months from
NPRM to effective date of new rules
33
The NLRB’s Election Rules: Where Things Stand
• While a Trump Board could adopt a more flexible approach on
election timelines, other elements of the new rules would remain
in effect:
– Posting of Notices
– Preliminary voter lists
– Statements of Position
– Excelsior Lists
– Etc.
34
The NLRB’s Election Rules: Where Things Stand
• Number of elections: NLRB held 1,628 representation elections in
2015-a five-year high and a 10% increase from 2014.
• Union win rate: 69.3 percent
– Slightly down from 69.5 percent in 2014
• Full story:
– 6% increase in petitions proceeding to election in 2015
– Increased number of union wins in right-to-work states
– Unions winning more decertification elections
– Median days from petition to election has dropped from 27 to 25
35
Impact of the New Rules for Employers
• Beware challenging the Union’s designated observer, even if:
– Observer is a non-employee union official (Longwood
Security)
– Observer is an employee terminated for serious misconduct
and workplace violence issues (Equinox Holdings, Inc.)
36
Wacky NLRB Rulings on Election Observers
• Brunswick Bowling: Beware of Preclusion
– No showing of prejudice required
– Speak now or forever hold your piece: employers must raise
ALL issues in the Statement of Position in a timely fashion
• Premier Utility Services: Another reason for employers to avoid
a mail-ballot election
37
Other Takeaways for Employers Facing Elections Under New Rules
Labor Negotiations – the Board’s Effort
to Tilt the Scales in Favor of Union
38
• Degradation of Management Rights
• Expanding the Union’s Right to Company Information During
Bargaining
• Shifting the Post-Expiration Power Dynamic
• Redefining Successorship
39
During CBA
• Management Rights Clause is ALIVE
• But see Graymont PA
After CBA
• Management Rights Clause is DEAD
• See Du Pont
• Extra note: “Stone Container” flexibility also non-existent
Both?
• What if you plan and announce the change before the CBA expires, but the change does not occur until after the CBA expires?
• See American Nat’l Red Cross
1 2 3
©2016 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 40
What Management’s Rights Clause?
NLRB’S New Approach to Work
Stoppages
41
• Piedmont Gardens: NLRB “clarifies” law around employer’s
motive for hiring permanent replacements
• Reply Brief in United Site Services of CA v. IBT Local 315
– Asks Board to require employers to establish a legitimate and
substantial business reason for hiring permanent
replacements
42
Bye, Bye, Bye…to Permanent Replacements
• Wal-Mart Stores, Inc.:
Peaceful strikes may be protected by the NLRA even when they
occur on an employer’s premises in full view of customers
– Miscimarra dissent: retail employees should lose the Act’s
protection if conduct causes disruption or interferes with the
business
• GC Model Brief on Intermittent Strikes
– If proposed framework is adopted by NLRB,
expect to see increase in union-led, short-duration strikes
– Impossible for employers to plan for or find replacement
workers
43
Get Ready for “Flash Mob” Strikes
– The NLRB has determined that employers normally will be
obligated to continue deducting union dues even after a
collective bargaining agreement expires. Lincoln Lutheran of
Racine
44
Meanwhile…the Board Supports Union Funding Past Contract Expiration
Redefining Successorship
45
• The Board held that a purchaser employer becomes a Burns
successor with an obligation to recognize and bargain with the Union
when, as required by a local worker retention law, it has to hire the
predecessor employer’s employees for a “trial period.” GVS Properties,
LLC
• The Board reaffirmed doctrine requiring employers to bargain over
discretionary discipline issued to successor and newly organized
employees pre-first contract and mandated prospective make-whole
relief including reinstatement and back pay for future violations. Total
Security Management Illinois
• New successorship bar essentially requires a year of negotiations
before the purchaser can withdraw recognition based on the union’s
loss of majority status.
46
Redefining Successorship
• Increased focus on the language included in an APA –
need to avoid guaranteeing similar pay and benefits.
• Purchaser may be held liable for the statements made by
the seller prior to close.
• Increases the difficulty of balancing the fiscal changes
necessary for a successful deal against the desire for
employee continuity and positive morale.
47
New “Perfectly Clear” Successorship Test Restricts Purchasers’ Ability to Set Initial Terms
QUESTIONS?
48
top related