Tag Archives: NLRB

A NLRB Christmas Story

If the NLRB is Santa, then Santa just left employers a Millennium Falcon under the Christmas tree. One day after issuing two well-received pro-employer decisions, the NLRB overruled one of its most detested decisions from the last eight years, E.I. du Pont de Nemours, 364 NLRB No. 113 (2016), that broke from long-standing board precedent and dramatically altered what constitutes a “change” in the terms and conditions of employment and thus, when an employer is required to bargain with a union. In the DuPont decision, the Board held that bargaining would always be required, even if the parties had not yet agreed to a contract, in every case where the employer’s actions involved some type of “discretion.”

However, on December 15, 2017, in Raytheon Network Centric Systems, 365 NLRB No. 161, the Board continued its Fast and Furious dismantling of many of the more controversial decisions issued during the Obama administration, by rejecting DuPont and returning to what had been long-standing board precedent. The majority of the Board opined:

We conclude that the Board majority’s decision in DuPont is fundamentally flawed, and for the reasons expressed more fully below, we overrule it today. DuPont is inconsistent with Section 8(a)(5), it distorts the long-understood, commonsense understanding of what constitutes a “change,” and it contradicts well established Board and court precedent. In addition, we believe DuPont cannot be reconciled with the Board’s responsibility to foster stable bargaining relationships. We further conclude that it is appropriate to apply our decision retroactively, including in the instant case.

*  *  *

In sum, and for the reasons stated above, we overrule DuPont as well as Beverly I and Register-Guard, and we reinstate Shell Oil, Westinghouse, Winn-Dixie Stores, Beverly II, Capitol Ford, and the Courier-Journal cases. Henceforth, regardless of the circumstances under which a past practice developed—i.e., whether or not the past practice developed under a collective-bargaining agreement containing a management-rights clause authorizing unilateral employer action—an employer’s past practice constitutes a term and condition of employment that permits the employer to take actions unilaterally that do not materially vary in kind or degree from what has been customary in the past. We emphasize, however, that our holding has no effect on the duty of employers, under Section 8(d) and 8(a)(5) of the Act, to bargain upon request over any and all mandatory subjects of bargaining, unless an exception to that duty applies.”

The retroactive application of this decision is of particular importance and may impact many disputes currently pending with the NLRB. This decision will also have great impact on management-union negotiations, and will provide employers greater ability to act without being required to ask for permission from a union. This is particularly true in the context of employers that do not have a collective bargaining agreement in place.

[I wonder if unions are feeling as if they are Randolph and Mortimer Duke in Trading Places, Hans Gruber in Die Hard (one of my favorite holiday flicks), or Ted Maltin in Jingle All the Way.]

In addition to overruling the DuPont decision on December 15, the Board also overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). The Specialty Healthcare decision made it easier for unions to organize so-called “micro-units.”  With PCC Structurals, 365 NLRB No. 160, the Board reinstated its pre-Specialty Healthcare, community-of-interest approach for determining  “whether a proposed bargaining unit constitutes an appropriate unit for collective bargaining when the employer contends that the smallest appropriate unit must include additional employees.”

We are well into Hanukkah and only a few days before Christmas, let’s hope that the NLRB continues to shower employers with gifts this holiday season and that this Miracle on 34th Street continues.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

The NLRB’s Holiday Gift to Employers

The new General Counsel for the NLRB recently issued a memorandum explaining that the NLRB would be moving swiftly to review several of the more controversial, and arguably anti-employer, decisions issued in the last eight years.  On December 14, thirteen days later, on the third night of Hanukkah, nine days before Festivus, and less than two weeks before Christmas, the NLRB took the first steps towards fulfilling this promise, when it issued two employer-friendly decisions that overturned two of the most controversial rulings of the NLRB under the Obama administration.  Happy Holidays, Employers!

First, in Hy-Brand Contractors the NLRB overturned the Browning-Ferris joint employer standard. When issued, the Browning-Ferris decision was shocking as it changed years of NLRB precedent. Through the Hy-Brand decision, NLRB has returned to the long standing test for joint employment that focuses on whether joint control is exercised (rather than merely reserved), whether such control has a “direct and immediate” impact on employment terms (rather than a merely indirect impact), and whether such control is not merely “limited and routine.”

Next, in Boeing Co. & Society of Professional Engineering Employees in Aerospace, the NLRB overturned the somewhat paternalistic Lutheran Heritage standard that has been used to invalidate policies in employee handbooks if it was determined by the NLRB that employees could “reasonably construe” the policy as barring them from exercising their rights under the NLRA. In application, the Lutheran Heritage standard was often applied in a way that caused employers to opine that the NLRB thought employees were lacking in intellect or common sense if they were to construe the policies as chilling or prohibiting their rights.  On pages 3-4 of the Boeing opinion, the NLRB states that the new standard will be as follows:

Under the standard we adopt today, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule. We emphasize that the Board will conduct this evaluation, consistent with the Board’s “duty to strike the proper balance between . . . asserted business justifications and the invasion of employee rights in light of the Act and its policy,” focusing on the perspective of employees, which is consistent with Section 8(a)(1).

As the result of this balancing, in this and future cases, the Board will delineate three categories of employment policies, rules and handbook provisions (hereinafter referred to as “rules”):

  • Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement in this case, the “harmonious interactions and relationships” rule that was at issue in William Beaumont Hospital, and other rules requiring employees to abide by basic standards of civility.
  • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
  • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example of a Category 3 rule would be a rule that prohibits employees from discussing wages or benefits with one another.

Although this standard is somewhat complicated, it should provide employers more confidence in their ability to have appropriate policies for their workplaces, including those that have business justifications which outweigh potential adverse impacts on employees’ protected rights.

In addition to the foregoing, on December 12, 2017, the NLRB issued a Request for Information Regarding Representation Election Regulations and in doing so provided employers with hope that the 2014 “quickie election rule” may eventually be a rule of the past.

Hopefully, the holiday gifts from the NLRB continue through the season.

This post was co-authored by Gail E. Farb and Jennifer Fowler-Hermes.

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Jimmy John’s Takes on Disloyal Employees and the NLRB and Wins

Doling out a refreshing victory, the U.S. Court of Appeals for the Eighth Circuit sided with Jimmy John’s in a protected, concerted activity case brought under the National Labor Relations Act (“NLRA”). On July 3, the full en banc court reversed an earlier decision of a three-member panel of the court that had affirmed a National Labor Relations Board (“NLRB”) ruling for the employees. Unless appealed to the Supreme Court, this decision brings to an end a torturous legal saga lasting over six years.

This case was set in motion in October 2010 when an Industrial Workers of the World (IWW)-affiliated union lost a union election to represent Jimmy John’s employees at ten franchised stores in the Minneapolis-St. Paul area, owned and operated by MikLin Enterprises. After the unsuccessful election, several union supporters continued to pressure the franchisee’s management to adopt workplace policy changes, including the adoption of paid sick leave. The disgruntled sandwich-makers claimed that current attendance policies forced them to work while sick.

The dispute escalated when six of these employees placed posters in and around the restaurants, calling attention to their claims. The posters featured two identical side-by-side pictures of a Jimmy John’s sandwich. One was labeled as being made by a “sick” employee and the other by a “healthy” employee. The caption below the picture read “Can’t tell the difference?” and was accompanied by a message criticizing the employer’s attendance policies. The employer terminated the six employees responsible for these posters.

The employees challenged their terminations claiming that the employer’s actions were in retaliation for concerted protected activity under the NLRA. Both the NLRB and the three-member panel of the Eighth Circuit agreed. However, the full panel of the Eighth Circuit ruled that the terminations were lawful. Specifically, it found that the claims about food safety were false and misleading and therefore, sufficiently “disloyal” to place the actions of the six employees outside of the protections of the NLRA.

The decision is heartening for employers, as many recent NLRB decisions have been overly protective of worker actions that were calculated to harm a company’s reputation.

John M. Hament
jhament@williamsparker.com
(941) 552-2555

The United States against the United States? A Government Flip-Flop That May Help Employers

On June 16, 2017, the U.S. Department of Justice did an about-face when it filed an amicus brief with the Supreme Court of the United States in an important labor arbitration case, NLRB v. Murphy Oil USA. The Murphy case presents the question of whether arbitration agreements can restrict employees from participating in class or collective actions. The brief filed by the Department of Justice argues that employers can impose such restrictions. See the full brief here.

Arbitration agreements have traditionally required employees to submit their claims to arbitration rather than through the court system. The trend over the last several years is for employers to include class action or collective proceeding waivers in such agreements. Such provisions are believed to reduce litigation costs associated with class and collective actions (which are on the rise). In response to this trend, the NLRB ruled that such waivers violate the NLRA when they are a condition of employment.

Several of the NLRB’s cases regarding such arbitration agreements have been appealed to the circuit courts, resulting in contradictory decisions on this issue. The Second, Fifth, and Eighth Circuits held that such arbitration agreements are enforceable, with the Seventh Circuit finding that these agreements violate the NLRA. There are similar challenges to agreements being made in other circuits, including the Eleventh Circuit. Based on the split of authority on this issue, the Supreme Court accepted review of the case argued before the Fifth Circuit Court of Appeals.

When the NLRB submitted its petition for writ of certiorari in Murphy, the Department of Justice supported the NLRB and its argument that the ability for an employee to engage in concerted activities is the “core substantive right” of the NLRA, and prohibiting class and collective actions infringe on that right. However, in its new brief, the Department of Justice argues that the NLRB failed to give adequate weight to the congressional policy of favoring arbitration agreements. This change of heart by the Department of Justice creates the potential for an unusual situation. Typically, when the Solicitor General’s office files an amicus brief, a lawyer for the government will present oral argument before the court on that side of the case. Given that the NLRB sits on the other side of the case, the upcoming oral arguments may consist of a lawyer for the United States arguing against a lawyer for a U.S. agency: the United States arguing against the United States.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Offensive Facebook Posts May Be Protected Speech

Human resources experts often recommend a detailed analysis before disciplining an employee for offensive statements. On April 21, 2017, the Second Circuit Court of Appeals highlighted this requirement and forced an employer to reinstate an employee who had been fired for posting highly offensive comments about his supervisor. Although this case, National Labor Relations Board v. Pier Sixty LLC, 2017 U.S. App. LEXIS 6974 (2d Cir. April 21, 2017), involved a union organizing campaign, such a dispute can arise outside the union context. It can arise in a breakroom conversation, a media interview, a picket sign, or a social media post. If the content involves protected speech, such as criticism of the terms and conditions of the employee’s employment, and especially if the speech purports to speak on behalf of or for the benefit of others, the speech may be protected, whether or not there is a union involved.

In Pier Sixty, the employee posted on Facebook that his supervisor is a “NASTY MOTHER F—ER” and “F—his mother and his entire f—ing family!!!”  The post criticized his supervisor’s communications style, saying, “…don’t know how to talk to people!!!!”  The post also included a pro-union statement, “Vote YES for the UNION!!!!!!”

The court weighed the protections (here, concerted activity) versus how abusive or “opprobrious” the comments were. The court reviewed the context of the statements, including that the employer was found to have permitted past vulgarity and to have engaged in other efforts to impede unionizing efforts. Commenting that these posts fall on the “outer bounds” of protected activity, the court declared the posts to be within the bounds of protected concerted activity and required the employer to bring the discharged employee back to work.

Employers should ensure that workplace rules are consistently enforced and that the reason for discharge does not involve and does not appear to involve a protected reason. Employers should be prepared to articulate and, if required, prove the lawful reason for discharge rather than relying on at-will status.

Kimberly Page Walker
kwalker@williamsparker.com
(941) 329-6628

Managing Employee Participation in Social Movements: A National Strike for Women is Planned for March 8, 2017

The organizers of the Women’s March, which on January 21, 2017 drew an estimated three million participants worldwide, have announced that on International Women’s Day, March 8, 2017, they are planning a “General Strike: A Day Without a Woman.” Although the organization has not yet provided many details regarding its call to action, it is likely that as with last week’s national strike, “A Day Without Immigrants,” this event will include a call to supporters to refuse to report to work. Such a call to action will raise questions for employers regarding how they can respond to such political activity.

A walk out in support of a “General Strike: A Day Without a Woman” could be considered protected activity under the National Labor Relations Act, if there is a sufficient nexus between employment-related concerns and the specific issues that are the subject of the strike. When the motivation for political activity is a national political issue that the employer has no control over, such activity will not be protected and an employee’s discipline for a violation of well-established and neutrally applied policies is legally permissible. On the other hand, when employees leave work and withhold services as an economic tool in their own employment relationship, such activity is protected. For example, a few years ago, McDonalds’ employees held a nationwide strike in support of raising the national minimum wage. Although the national minimum wage was part of the reason workers refused to work, and their employers had no control over the national wage, the employees’ own wages and work conditions were an inherent and primary motivator for their participation in the strike. Thus, the National Labor Relations Board ascertained that a sufficient nexus existed for a finding that the strike was protected activity and filed complaints against several McDonalds challenging the disciplinary actions imposed on participating employees.

Since information is still forthcoming regarding this proposed strike, it is not yet clear whether participation in this event will be protected. Regardless, any action taken against an employee may be challenged through a complaint with the National Labor Relations Board, which has authority to enforce violations of the Act against both unionized and non-unionized employers. If your business is impacted by this event, before you make any disciplinary decisions, it is important to ascertain if the reason for the absence is related to any employment concern in your workforce.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Predicting the Unpredictable: Labor and Employment Law in 2017 (Part Two)

This post is part two of a two-part series. Catch up on part one here.

Several of the biggest employment law matters in 2016 were the Department of Labor’s overtime regulations, Florida’s medical marijuana law, LGBT rights, and changes to the joint employer relationship. It is expected that each of these issues will continue to hold the limelight in 2017.

DOL’s Overtime Regulations – Since March 2014, when President Obama issued a Memorandum to the Secretary of Labor directing the Secretary to “modernize and streamline existing overtime regulations,” this has been a hot topic. The discussion has moved from what the regulations will be, to what will happen with the Department of Labor’s appeal of the temporary injunction prohibiting the implementation of the rule.  Oral argument has not yet been set. Thus, the new administration could withdraw its appeal of the temporary injunction, leaving the lower court’s decision intact. If Puzder does take the reins of the DOL, it is likely that this will occur, as he is on record stating that the 2016 overtime regulations diminish opportunities for workers.

Florida’s Medical Marijuana Law – This past election Florida’s voters approved medical marijuana for treatment of certain health conditions.  Although the state has already issued seven licenses for growing marijuana and some of the businesses with licenses are already starting to plant crops, it will not be until summer 2017 that regulations implementing the voters’ directive will be released. Many counties and cities in the state, including Sarasota County, Manatee County, Hillsborough County, Pasco County, and the City of Bradenton, have or are considering instituting temporary bans of the drug until the state’s regulations are issued and/or local zoning and building regulations are implemented.

Even though it is clear from the text of the constitutional amendment that employers will not be required to allow employees to use marijuana at the workplace, there will still be questions regarding zero tolerance policies, Florida specific drug testing, and reasonable accommodation under the Florida Civil Rights Act (arguably the ADA, a federal law, would not require an accommodation that involves a federally prohibited substance). Further, although marijuana (and CBD/hemp oil) may be approved for limited use in Florida, what the voters approved this past election is in direct conflict with the federal Controlled Substances Act. In addition, on January 13, 2017, the Florida’s legislature’s 2014 approval of limited use of CBD will be in direct conflict with the Drug Enforcement Administration’s new rule making CBD a schedule one controlled substance.

State laws will not protect businesses, including those licensed by the state to grow marijuana, from federal prosecution. If Sessions takes over the DOJ, he could overrule the 2009 directive to U.S. Attorneys not to prosecute violations of the federal drug laws when the acts being prosecuted are legal under state law. If this occurs, the federal government could thwart business opportunities in the marijuana industry and put many people in jail.

LGBT Rights in the Workplace and in Places of Public Accommodation – In the last few years, both the Equal Employment Opportunity Commission and the DOJ have taken serious efforts to expand protections afforded to members of the LGBT community. The EEOC’s 2017 Strategic Enforcement Plan indicates that providing this group protections under Title VII will remain a priority. However, depending on who is chosen to lead the EEOC, this focus could change and this aspect of the strategic plan could be ignored. Similarly, with Sessions in charge of the DOJ, a roll back in efforts to use public accommodation laws to provide greater protections to transgender persons is likely to occur.

Joint Employer Status – Recently both the EEOC and the National Labor Relations Board have broken with their own long-standing standards of what constitutes a joint employer, with both agencies expanding their standards to cover a greater number of relationships. The NLRB went as far as to redefine the joint employment test in place for over 30 years. In the past, a joint employer relationship existed when two entities shared or codetermined the essential terms and conditions of the workforce. Thus, for two entities to be considered joint employers, both had to exercise some control over employees’ terms and conditions of employment. However, with the 2015 Browning-Ferris decision, the NLRB removed the actual exercise of control as a requirement and instead focused on whether each entity has a “right to control” regardless of whether that right is ever used. Because of the five-year staggered terms of board members and the fact that a change at the Board level is made through interpretations of the NLRA, the impact of the new administration on this standard will most likely not be immediate. Instead, the NLRB’s new joint employer standard is already being challenged by Congress, and if a bill is passed overriding the NLRB’s new standard, it is likely that the new President will sign the bill.

Aside from the foregoing issues, there are also several other matters that will probably be of interest in 2017: Will Obama’s executive orders for federal contractors regarding minimum wage and paid sick leave stand? Will the new administration continue to push for fair pay? Will we see an increase in INS investigations of undocumented workers? Will the new administration attempt to undo the NLRB’s quickie election rules?

If only we had Dr. Who’s Tardis so we could travel to the future and see for ourselves. Whether the changes will ultimately be positive or negative for employers in 2017 is yet to be seen. Regardless, we are guaranteed a year full of activity in the employment law arena.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558