While all employers are facing an unprecedented whirlwind of rapidly changing circumstances as a result of the COVID-19 pandemic, employers with unionized workforces face additional challenges as they take action in response to the outbreak while trying to avoid running afoul of the requirements of their collective bargaining agreements and the National Labor Relations Act (NLRA). Here are a few suggestions for employers to consider as they navigate this new landscape.
Continue Reading Responding to COVID-19 in a unionized workplace
Unions
The Board reinstates traditional deferral standard
On December 23, 2019, in United Parcel Service, Inc., 369 NLRB 1 (2019), the National Labor Relations Board (the Board) gave employers one final holiday gift by returning to its traditional standard for post-arbitral deferral. The Board uses this standard to decide whether it should defer to arbitration awards in cases alleging the unlawful discipline or discharge of an employee under the National Labor Relations Act (the Act). Under the re-established traditional standard, the Board defers to the arbitrator’s award if the following four elements are met: (1) the arbitral proceedings appear to have been fair and regular; (2) all parties have agreed to be bound; (3) the arbitrator considered the unfair labor practice issue; and (4) the arbitrator’s decision is not clearly repugnant to the Act.
The Board changed the post-arbitral deferral standard in Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014). Under the 2014 standard, even if the arbitration procedures appeared to have been fair and regular and the parties agreed to be bound by the results of arbitration, the Board would not defer to an arbitral decision unless (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permitted the award. The burden of proof rested with the party urging deferral. According to the current Board, that change was “a drastic contraction of deferral practices that had existed for decades” and “by disfavoring the peaceful resolution of employment disputes about discharge and discipline issues through collectively bargained grievance arbitration proceedings, [the 2014 standard] disrupted the labor relations stability that the Board is charged by Congress to encourage.”Continue Reading The Board reinstates traditional deferral standard
NLRB gives employers back the right to restrict employee use of work email
On Tuesday, December 17, 2019, in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143, the National Labor Relations Board (the Board or NLRB) held that an employer may restrict the use of its email system if it does so on a non-discriminatory basis, effectively reinstating the holding of Register Guard, 351 NLRB 1110 (2007). This is one of several employer-friendly decisions issued by the Board this week.
Five years ago in Purple Communications, Inc., 361 NLRB 1050 (2014), the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on non-working time, for communications protected by Section 7 of the National Labor Relations Act (the Act). This ruling severely restricted employers’ ability to prevent employees from using their email systems for non-work related purposes, including for unionization purposes.Continue Reading NLRB gives employers back the right to restrict employee use of work email
NLRB greenlights employer rules requiring employee confidentiality during workplace investigations
By Tom Posey & Amanda Brown on
On Tuesday, December 17, 2019, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the National Labor Relations Board (the Board or NLRB) held that requiring employee confidentiality during workplace investigations does not constitute an unfair labor practice under the National Labor Relations Act (the Act or NLRA). This is yet another employer-friendly decision in a series of recent rulings overturning Obama-era Board precedent.
Back in 2015, the Board held that employers could require confidentiality during workplace investigations only where they demonstrated that confidentiality was necessary to preserve the integrity of the investigation. See Banner Estrella Med. Ctr., 362 NLRB 1108 (2015), enforcement denied on other grounds 851 F.3d 35 (D.C. Cir. 2017). This standard created a difficult situation for employers, placing the burden on them to determine if there was a need for confidentiality that outweighed any potential impact on workers’ NLRA rights. Moreover, the standard also conflicted with guidance from the Equal Employment Opportunity Commission (EEOC), which encourages employers to keep investigations confidential to protect victims and to encourage reporting.Continue Reading NLRB greenlights employer rules requiring employee confidentiality during workplace investigations
Changes to the NLRB’s representation case procedures to go into effect in 2020
On December 13, 2019, the National Labor Relations Board (Board) announced a series of modifications to its representation case procedures. These modifications will be published on December 18, 2019, and are scheduled to go into effect on April 16, 2020. Unlike the Obama Board’s 2014 amendments, the current Board has elected to implement these changes without notice and comment.
According to the Board, “[w]hile retaining the essentials of existing representation case procedures, these amendments modify them to permit parties additional time to comply with various pre-election requirements instituted in 2015, to clarify and reinstate some procedures that better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues prior to an election, and to make several other changes the Board deems to be appropriate policy choices that better balance the interest in the expeditious processing of questions of representation with the efficient, fair, and accurate resolution of questions of representation.”
This announcement should come as a reprieve to employers after the Obama Board’s 2014 amendments, which imposed, among other things, tight procedural deadlines on employers and sped up the scheduling of elections thereby shortening the window employers had to conduct their own campaigns regarding unionization. The most notable changes are that now, elections will not normally be scheduled before the twentieth business day after the date of the direction of an election, disputes concerning unit scope and voter eligibility will normally be litigated at the pre-election hearing and resolved by the regional director before an election is directed, and employers will have a right to file post-hearing briefs.Continue Reading Changes to the NLRB’s representation case procedures to go into effect in 2020
NLRB publishes proposed changes to union election procedures
The National Labor Relations Board (Board or NLRB) issued on Friday its first proposed regulation in a series that will overhaul parts of union election procedures. The Board’s 113-page proposed rule, which was published in the Federal Register today, Monday, August 12, modifies three of the board’s election processes: (1) the handling of blocking charges; (2) the voluntary recognition bar; and (3) certain collective bargaining relationships involving employers in the construction industry. This piecemeal approach is consistent with Board Chairman John Ring’s statements at the American Bar Association’s labor and employment conference last November and is part of the rule-making agenda the Board announced in May.
Under the Obama administration, the Board passed the “quickie” or “ambush” election rule, which significantly shortens the time between the date an election petition is filed with the NLRB and the date the election is held, requires preelection hearings to be held very shortly after the filing of a representation petition, and requires employers to provide union representatives with far more information on potential voters than in the past. These new procedures were derided by employers and business groups, which was most clearly evidenced in 2017 when the Board received over 7,000 responses to its invitation for comments on whether to roll back these changes.
In the Board’s Friday announcement, a three-member majority, over one Board member objection, said, “The board believes, subject to comments, that the proposed amendments will better protect employees’ statutory right of free choice on questions concerning representation by removing unnecessary barriers to the fair and expeditious resolution of such questions through the preferred means of a board-conducted secret ballot election.” Chairman Ring added, “There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely board-conducted secret ballot elections. We believe that the changes we propose today further the goal of protecting this vital freedom.” The Board’s lone Democrat, Lauren McFerran, objected to the proposed rule-making.
Continue Reading NLRB publishes proposed changes to union election procedures
It’s not quite “all change” for TUPE – service provision change provisions will not be repealed after all
By Laura H. Juillet on
Since 2011, the Government has been considering proposals to amend the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). Following an initial call for evidence and subsequent consultation, the Government yesterday confirmed the amendments it intends to make to TUPE.Continue Reading It’s not quite “all change” for TUPE – service provision change provisions will not be repealed after all
NLRB Limits Employees’ Rights To Challenge the Majority Status of Unions
By Joel S. Barras & John A. DiNome on
Recently and just prior to the expiration of National Labor Relations Board Chairman Wilma Liebman’s term, the Board issued two decisions that reverse the rights of employees to challenge the majority status of their unions following a voluntary recognition of the union by the employer or a sale or merger involving their employer. These decisions…
U.S. Supreme Court Voids Almost 600 Decisions Issued By Two-Member NLRB
By James A. Burns, Jr. on
This post was also written by Daniel J. Moore.
On June 17, 2010, the U.S. Supreme Court held that the National Labor Relations Board (“NLRB” or “Board”) lacked the authority to issue any decisions during a 27-month period when it had only two members. New Process Steel, L.P. v. NLRB, No. 08-1457. The Court’s ruling effectively invalidates nearly 600 decisions issued by the two-member Board, leaving unclear how those cases will be resolved by a Board that is now back to a full five members, three of whom are generally expected to favor unions. Read a full copy of the Court’s decision.Continue Reading U.S. Supreme Court Voids Almost 600 Decisions Issued By Two-Member NLRB
Federal Contractors and Subcontractors Must Notify Employees of Right to Unionize
By James A. Burns, Jr. & Joel S. Barras on
This post was also written by Daniel J. Moore.
Just 10 days after taking office, President Obama signed Executive Order 13496, requiring all federal contractors and subcontractors to notify employees of their rights under the National Labor Relations Act (NLRA), including their right to join and support unions, and to include in every contract, subcontract, and purchase order, a pledge to honor the employee notice requirements. The U.S. Department of Labor (DOL) has now issued its final rule implementing the Executive Order, specifying how contractors and subcontractors must comply with those requirements, including a poster describing employees’ rights and how they can file claims with the National Labor Relations Board (NLRB), and the penalties employers will face if they fail to comply. The rule will take effect June 21, 2010.
Who Is Affected by Executive Order 13496?
Executive Order 13496 (“the Order”) affects contractors and subcontractors who contract or subcontract with a federal government agency and are covered under the NLRA. The Order does not apply to the federal government, state or local governments, labor unions, or employers who are covered by the Railway Labor Act. The Order also does not apply to prime contracts under the simplified acquisition threshold, currently set at $100,000, or subcontracts of $10,000 or less.Continue Reading Federal Contractors and Subcontractors Must Notify Employees of Right to Unionize