Management Memo

Management’s inside guide to labor relations

Supreme Court Rules That Former NLRB Acting General Counsel Served in Violation of Federal Law

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On March 21, 2017, the United States Supreme Court ruled that the National Labor Relations Board’s former Acting General Counsel Lafe Solomon served in violation of the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345, et seq. (“FVRA”) when he continued in that position after President Barack Obama nominated him for a full term as General Counsel.

By a 6 to 2 vote, the Justices affirmed an August 2015 decision by the D.C. Circuit, which found that Solomon improperly served as Acting General Counsel during the almost three-year period between January 2011 and late 2013 while his nomination for confirmation as  the Board’s General Counsel languished in the Republican-controlled Senate.  Ultimately, Obama withdrew Solomon’s nomination and put forward Richard F. Griffin, Jr., who was eventually confirmed on October 29, 2013.

Background

As we explained in our prior post, the position of NLRB General Counsel is just one of approximately 1,200 senior level positions within the federal government (including Cabinet secretaries and deputies, heads of most independent agencies, and ambassadors) that may only be filled by an individual nominated by the President and confirmed by the Senate (so-called “PAS” positions).  The FVRA, enacted in 1998, gives the President authority to appoint acting officers to serve in these positions until the President’s nominee completes the sometimes lengthy Senate confirmation process.

Pursuant to the FVRA, therefore, when former NLRB General Counsel Ronald Meisburg vacated that position on June 20, 2010, Obama appointed Solomon, then a 10-year agency veteran who was serving as Director of the NLRB’s Office of Representation Appeals, to become the agency’s Acting General Counsel.  Six months later, Obama sent Solomon’s name to the Senate, when he nominated Solomon to fill the General Counsel position.  The Senate, however, did not take action on Solomon’s nomination and returned it to the President at the expiration of the Congressional term.  Although Obama resubmitted Solomon’s nomination in May 2013, he later withdrew it and nominated Richard F. Griffin, Jr., whom the Senate confirmed as General Counsel in November 2013.

After one of the Board’s Regional Directors, acting as an agent of the General Counsel, issued as  a complaint alleging Southwest General had committed unfair labor practices, the company argued that Solomon lacked authority to issue and litigate that complaint because his service as Acting General Counsel during the pendency of his nomination to the General Counsel position violated the FVRA.  While the Administrative Law Judge who heard the case and the Board, when it reviewed the ALJ’s decision, rejected that argument, the D.C. Circuit agreed with the employer, and interpreted the FVRA to prohibit any individual (subject to certain limited statutory exceptions that did not apply to Solomon) from serving as an acting officer for a PAS position while he or she was also a nominee to fill that same position for a full term.

The Supreme Court’s Decision

Writing for the majority in NLRB v. SW General, Inc., Chief Justice Roberts wrote “[a]pplying the FVRA to this case is straightforward,” and concluded that once Obama submitted Solomon’s nomination to fill the General Counsel position for a full term, the FVRA prohibited Solomon from continuing in the Acting General Counsel role.  Chief Justice Roberts noted that Obama could have appointed any one of the approximately 250 senior NLRB employees or hundreds of other individuals in PAS positions throughout the federal government to serve as Acting General Counsel during the pendency of Solomon’s nomination.  Because the President did not do so, and Solomon continued to serve as Acting General Counsel, Chief Justice Roberts concluded, Solomon’s continued service as Acting General Counsel after his nomination was submitted to the Senate violated the FVRA.

Chief Justice Roberts also rejected the Board’s argument that, in the past, three different presidents have submitted the nominations of 112 persons for Senate confirmation while they simultaneously served as acting officers under FVRA.  As Chief Justice Roberts pointed out, the FVRA was enacted in 1998, and those 112 nominations made up a small percentage of the total number of nominations for PAS positions that the Senate considered during that time.

Impact of the Court’s Decision

The Court’s ruling will most certainly have an impact on the administration of President Donald Trump, who faces the daunting task of filling the multitude of PAS positions that are either already vacant or will become vacant shortly, as Obama’s appointees transition out.  The decision in SW General will likely have a more limited impact on employers.  When the D.C. Circuit issued SW General, it made clear that it considered the holding to be a narrow one:  Acting General Counsel Solomon served in violation of the FVRA as of the date the President nominated him to be General Counsel.  Moreover, the D.C. Circuit held that any FVRA defect in Acting General Counsel Solomon’s authority to take action could be readily cured if a subsequent, properly-serving General Counsel were to ratify his actions.  Finally, the Circuit made clear that it addressed the FVRA issue only because the employer in Southwest General had timely preserved and raised that objection early in the proceedings.  The Court did not expand the effects of the D.C. Circuit’s ruling with this decision.  The real benefit from the ruling to employers, unions, and others with business before the NLRB may become apparent after Griffin’s four-year term expires in November 2017, when President Trump or any other future President will not be able to designate his or her choice to fill a future vacancy in the position of General Counsel (or in any other PAS position) to serve in such role on an acting basis while their nomination works its way through the Senate confirmation process.

D.C. Circuit Rejects NLRB Finding That FedEx Drivers Are Employees, Not Independent Contractors and Raises Doubts as to Board’s Joint Employer Test

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Steven M. SwirskyOver the past week the U.S. Court of Appeals for the District of Columbia Circuit weighed in on two separate related efforts by the Obama-Board to expand the protections of the National Labor Relations Act (the “Act”) to workers who are not in traditional employer-employee relationships.

One Court – Two Cases

In a March 3, 2017 decision, the Court rejected the National Labor Relations Board’s (“NLRB”) finding that FedEx Home Delivery drivers were employees and agreed with the company that the drivers were independent contractors and therefore did not have the right to union representation under the Act.   On March 9th, the Court heard the much anticipated argument on the challenge by Browning –Ferris Industries of California Inc., to the Board’s 2015 decision adopting a new and much looser standard for determining joint employer status. While it is not certain when the Court’s decision will be released, the questions asked by the judges who heard the appeal suggested that they are by no means convinced that the new test articulated in Browning-Ferris is the correct one and consistent with what Congress intended when it passed the Act.

The Court Found FedEx Ground Drivers Are Independent Contractors, Not Employees

A key question in the gig economy is the relationship between a worker and the company for whom they provide services. Those workers who are employees under the Act have the right to join and be represented by unions; independent contractors do not.  The NLRB has gone so far in its efforts as to hold that misclassification of a worker the Board considers to be an independent contractor commits an unfair labor practice when it does so.  The Board has also argued before the Courts that its views on whether a worker is an employee or an independent contractor should be afforded deference by the Courts.

The D.C. Circuit’s decision in the FedEx case is of particular interest with regard to each of these propositions. First, the Court noted that under the Supreme Court’s 1968 decision in NLRB v. United Insurance Company of America, the “determination of whether a worker is a statutorily protected ‘employee’ or a statutorily exempt ‘independent contractor’ is governed by common law” and “there is no shorthand formula or magic phrase that can be applied to find the answer.” Thus, while the Board argued that the Court should afford great weight to its application and analysis of the common law test for determining whether the drivers were employees or independent contractors, because the question is “a question of pure common law agency principles ‘involv[ing] no special administrative expertise that a court does not possess,” the Court found that deference to the Board’s views was neither appropriate nor required.

The Court in its analysis and application of the common law test found that the NLRB was wrong to place greater weight on certain factors than others. Because the facts in the FedEx case were virtually identical to an earlier case the Court had considered with the same parties in 2009, the Court held the Board was not entitled to the deference that would be due “between two fairly conflicting view,” because the Court had previously considered and decided the issue.

The Board’s Browning-Ferris Joint Employer Test

The Board’s 2015 Browning-Ferris decision held that an employer could be deemed a joint-employer of another employer’s employees if it was found to exercise or even just has the right to exercise “indirect control” over the other employer’s employees. The D.C. Circuit heard argument on March 9th on the company’s challenge to this standard.  While it is too early to say whether the Court will defer to the Board in this case, the Court’s questions suggested that it at least has doubt as to the Board’s new standard.  For example, Judge Patricia Millet questioned the practicality and future application of the indirect control standard, asking the Board’s attorney “What assurance do we have that this test and particularly indirect control is going to continue to police the line properly between genuine joint employers and [contractors]?

As in the FedEx decision, the application of the common law standards was before the Court, this time in connection with the common law test for determining the existence of an employer-employee relationship, which is one of the requirements of the Browning-Ferris standard. Counsel for Browning-Ferris argued that “the notion of exertion control dovetails with Congress’ understanding of the essence of a common-law employment relationship as direct supervision.” If the Court agrees with this proposition, then it would seem questionable that the Court will accept the Board’s view that possession, without exercise, of indirect control is sufficient to find a joint-employment relationship.

What Do These Cases Tell Us?

Since last November’s election, there has been a great deal written and said about what a Trump Labor Board will likely mean for the legacy of the Obama Board. However, in examining that legacy it is important not to lose sight of the fact that the Board’s decisions are not self-enforcing and are subject to review and enforcement by the Courts of Appeal.  While the Board continues to follow its Doctrine of Non-Acquiescence, meaning it will not accept the holdings of any court other than the United States Supreme Court as binding upon it if it disagrees with the Court’s interpretation of or views concerning the application of the Act, the D.C. Circuit and other Courts have continued to take serious issue with the Board’s position.

It will be interesting to see, once a new Board with a majority of members is appointed by the new President, not only how it addresses the myriad of representation and unfair labor practice precedents that are the product of the Obama Board, but also whether it continues to stand by the Doctrine of Non-Acquiescence and how this shapes its relationship with the judiciary.

Miscimarra Indicates the Future Trump NLRB – Employment Law This Week

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Featured on Employment Law This Week – Philip Miscimarra, Acting Chairman of the National Labor Relations Board (NLRB), has given a strong indication of the changes likely to come once President Trump fills vacant seats on the NLRB.

In a sharply worded dissent, Miscimarra doubled down on his disagreement with the NLRB’s controversial 2014 rule on union representation elections. Miscimarra argues that the rule’s heavy emphasis on election speed interferes with an employee’s right to make informed decisions on union representation and is inconsistent with the requirements of the statute. In another dissent, he argues that the NLRB’s current standard for reviewing employee handbook provisions “defies common sense” and should be replaced with a test balancing competing interests.

Watch the segment below and see our recent post.

“A Day Without” Actions – How Can Employers Prepare?

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On February 16, 2017, tens of thousands of individuals across the country stayed home from work as part of the “Day Without Immigrants,” a social activism campaign organized in response to President Donald Trump’s recent executive orders concerning immigration and increased enforcement, deportation actions, and raids by Immigration and Customs Enforcement. The “Day Without Immigrants” action was apparently not coordinated by any centralized organization, but was promoted on social media and by word-of-mouth just days before.

Now, the same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate by taking the day off from paid and unpaid labor, and by wearing red – which the organizers note “may be a great act of defiance for some uniformed workers.”

Employers should be prepared to address any difficult questions that might arise in connection with the upcoming “Day Without Women” strike: Do I have to give my employees time off to participate in Day Without events? Can I still enforce the company dress code – or do I need to permit employees to wear red? Can I discipline an employee who is “no call, no show” to work that day? Am I required to approve requests for the day off by employees who want to participate? As we explained in our prior blog post, guidance from the National Labor Relations Board’s General Counsel suggests that an employer can rely on its “lawful and neutrally-applied work rules” to make decisions about granting requests for time off, enforcing its dress code, and disciplining employees for attendance rule violations. An employer’s response, however, to a given employee’s request for time off or for an exception to the dress code, may vary widely based upon the individual facts and circumstances of each case.

As we previously noted, participation in events such as these may be protected concerted activity under the National Labor Relations Act (the “Act”). When employees take action to “improve their lot as employees through channels outside the immediate employee-employer relationship,” that activity is protected concerted activity under Section 7 of the Act so long as it has a direct connection to the employees’ working conditions. GC Memorandum 08-10 (2008), pgs. 1, 10 (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). There are, of course, some limitations on employees’ right to engage in concerted political activity. In GC Memo 08-10, issued in 2008, the Board’s General Counsel concluded that under existing Supreme Court and Board precedent, when employees exert economic pressure on their employer by leaving work to support a political cause, that activity may not be protected if the employer has “no control over the outcome of that dispute.” GC Memo 08-10, pg. 10.

However, even if employees’ participation in these mass demonstrations and strikes is considered protected concerted activity (as it concerns a specific issue directly connected to their work conditions and terms), an employer may still regulate that activity through its “lawful and neutrally-applied work rules.” GC Memo 08-10, pg. 13.

Similarly, an employer can rely on its lawful, uniformly-applied policies to evaluate whether to grant a request for time off to participate in Day Without Women activities – by asking, for example, whether the employee has sufficient accrued time, or has given enough advance notice, or has found someone to cover his work shift if that is ordinarily required. An employer may also apply its neutral attendance policy (which complies with all applicable leave laws, including local paid sick leave laws) to discipline an employee who simply fails to report to work without calling out.

What Employers Should Do Now

All employers should be prepared to address these issues as they arise – if not this week, then in the coming weeks and months if these types of mass protests continue. As described above, an employer’s reaction to its employees’ expressed desire to participate in these events will vary widely based on the individual circumstances at issue.

NLRB Acting Chair Dissents Point to Likely Changes to Board Election Rules and Employee Handbook and Email Standards

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NLRB Acting Chair Philip Miscimarra has given the clearest indication to date of what steps a new Republican majority is likely to take to reverse key elements of the Labor Board’s hallmark actions of the Obama administration once President Trump nominates candidates for the Board’s two open seats and the Senate confirms. In each of these cases, Miscimarra highlighted his earlier opposition to the majority’s changes in long standing precedents and practices.

The Acting Chair’s Position On the Board’s 2014 Amended Election Rules – The Emphasis On “Speed Above All Else” is Inconsistent With the Law

In a strongly worded dissent in European Imports, Inc., 365 NLRB No. 41 (February 23, 2017), the Acting Chair took issue the majority’s decision to deny an Employer’s Emergency Request for Review, that sought to postpone and reschedule a representation election scheduled to take place only three days after a significant number of the employees who would be eligible to vote approximately 25%, learned that they were included in the bargaining unit, and would be affected by the outcome of the vote.

In its Emergency Request, the employer urged the Board to postpone the election by a week, to endure that the employees would know whether they would be eligible to vote and if they were, to allow them to get the facts and make an informed decision when they voted. It also argued that holding the election so soon after the issuance of the Direction of Election “would deprive many employees of sufficient notice that they would be voting in election that would dictate whether they would have union representation.”

Disagreeing with the decision of Members Mark Pearce and Lauren McFerran to deny the employer’s Emergency Request without comment, Miscimarra took issue not only with the denial of this Request, but more broadly, with the Board’s 2014 Amended Election Rule (the “Rule”) and its “preoccupation with speed between petition-filing and the election,” the Rule’s “single-minded standard” calling for “every election (to be) scheduled for ‘the earliest date practicable . . .”

Miscimarra reiterated his position, as expressed in his dissent to the Board’s adoption of the amended Election Rule in 2014, that such an emphasis on speed above all else is inconsistent with the Board’s duty under the National Labor Relations Act “to assure to employees the fullest freedom in exercising the rights guaranteed” by the Act.

The Acting Chair again called for the Board to establish “concrete parameters” for the scheduling of elections that would ensure “reasonable minimum and maximum times between the filing of a representation petition and the holding of an election.”

In addition to addressing issues of timing, Miscimarra also took issue with the fact that during the representation hearing preceding the Direction of Election. The Board’s Regional Director had refused to permit the employer to present evidence and develop a record as to why it was being prejudiced in this case by the 2014 Amended Election Rule. The Regional Director ruled that because earlier judicial challenges to the facial validity of the Election Rule had been dismissed, the employer could not litigate the actual prejudice the Rule caused in this case.

Miscimarra made clear that in his view, the fact that earlier facial challenges to the Amended Election Rule had been dismissed, questions as to the validity of the Rule, when applied to specific facts remains open and that it is a “clear error and an abuse of discretion” to deny an employer the opportunity to litigate such issues when they arise.

The Acting Chair’s Position On the Obama Board’s Handbook and E-Mail Decisions

In another dissent in Verizon Wireless Inc., 365 NLRB No. 38 (February 24, 2017)  Miscimarra reiterated his strong dispute with the way in which the Obama Board has analyzed and decided cases challenging employee handbooks and policies, writing that Board’s current standard for deciding such cases “defies common sense.”

Under the Board’s 2004 Lutheran Heritage standard, the Board will find a handbook provision or policy to violate the Act and unlawfully interfere with employees’ rights to engage in concerted, protected activity if which in part rendered work rules and handbook provisions unlawful if employees “would reasonably construe” them to prohibit protected activities under Section 7 of the Act.

The Acting Chair reiterated his view, as explained in his lengthy 2016, dissent in William Beaumont Hospital, 363 NLRB No. 162, that the Board’s current test is unworkable, and fails to adequately recognize employer’s legitimate needs of employers. Calling on the Board and the Courts to overturn and reject the Lutheran Heritage standard, Miscimarra urged the adoption in its place of a new balancing test that would not only focus on employees’ rights under the Act, but that would also take into account employers’ legitimate justifications for a particular policy or rule, such as attempting to avoid potentially fatal accidents, reduce the risk of workplace violence or prevent unlawful harassment.

Miscimarra also took direct aim in his dissent at the He also wrote that he believes the Board should overturn its Purple Communication decision allowing employee virtually unfettered use of employer email systems and return to the former standard in Register Guard, which recognized that such systems are employer property and should be recognized as such. The dissent described the standard under Purple Communications as “incorrect and unworkable,” and called for a standard that would once again recognize “the right of employers to control the uses of their own property, including their email systems, provided they do not discriminate against NLRA-protected communications by distinguishing between permitted and prohibited uses along Section 7 lines.”

What This Means for Employers

As we noted when the President appointed then Member Miscimarra to serve as Acting Chair of the Board, meaningful change in how the Board interprets and applies the Act will not come until the two vacant seats are filled and a new majority is able to act. Additionally, current General Counsel Richard F. Griffin, Jr.’s term runs through August 4, 2017.

We expect change to come as ULP issues get before the Board. It is to be expected that any new Members appointed by the President will almost certainly share Acting Chair Miscimarra’s views on such issues as use of employer email systems and the review and enforcement of workplace rules, handbooks and the like.  A new balancing test such as that proposed in the Beaumont Hospital dissent is quite foreseeable.

Concerning the Amended Election Rule, things are a bit trickier. The Rule itself was the result of formal rule making, with public comment and input after the Board published its proposed Rule in the Federal Register.  Major changes in the Rule itself would require a new Board to follow the same processes, which are quite lengthy. However, there is certainly room, as Miscimarra’s dissent in European Imports demonstrates, for the Board to make changes in how it administers and processes cases even under this Rule, before any change to the Rule itself becomes effective.  The Acting Chair’s comments concerning the right of employers and other parties to due process, including the right to develop a complete factual record on disputed, material issues is something that can be changed through the administration and application of the Rule even without formal change.  So to, it would not be surprising for a new General Counsel to give guidance to the Board’s Regional Offices calling for them to apply their discretion to avoid circumstances like those that triggered the Emergency Request in European Imports to make sure that there are no more “three day elections.”

Periods such as this, where there is transition in interpretation and enforcement, are challenging but in reality they have been a part of the history of the enforcement and application of the Act for more than 80 years.  Students of the Board often speak of a pendulum and the need for those with business before the Board to try to anticipate its swings.  Careful consideration of not just what the “law” is now, but also what it is likely to be going forward will now once again be the watchword.

 

What’s Really in The NLRB’s New Amendments to Its Rules And Regulations and What Do These Changes Mean For Employers?

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On February 23, 2017 the National Labor Relations Board (“Board” or “NLRB”) made public a proposed Final Rule to revise its Rules and Regulations “ (the “Rules”)  to reflect modern technology, such as E-Filing, and eliminate references to telegraphs, carbon copies, and the requirements for hard copy submissions and multiple copies, and to eliminate legalistic terms” from the Rules.

Because the Board contends these amendments to its Rules as “procedural rather than substantive,” it has taken the position that it is not obligated to allow for comment before the amended rules are formally adopted and take effect, and that the amendments to the Rules and Regulations will take effect ten days after their publication in the Federal Register. The Board then published the amendments on Friday February 24th, which means they are to take effect on March 7, 2017, absent any judicial intervention.

An initial reading of the amended Rules and the Board’s summary suggests that most of the changes really are procedural in nature and unlikely to have a material impact on the outcome of representation or unfair labor practice proceedings before the Board. However, given the fact that the Board has demonstrated an increasing tendency in recent actions, particularly since it amended its Rules in representation cases in 2014 to hold parties to increasingly strict compliance standards that can impact substantive rights, it is important for employers who participate in proceedings before the Board and those who represent and counsel them to become familiar with the amended Rules and the changes they include. For that reason we have prepared this summary of what we think are the potentially most significant changes in the Board’s Rules.

Why the Board says it is amending its Rules

The Board has summarized the announcement of its proposed amendments to the Rules and Regulations as being intended to

reorganize the Rules and add headings so that the subject matter is easier to find; incorporate current practices that had not been included in the published Rules, such as the Board’s Alternative Dispute Resolution Program; and update and streamline provisions of the FOIA regulations, . . . clarify the means by which documents are filed and service is made by the parties and the Board, . . .(and) promote the parties’ use of E-Filing, which will facilitate sharing documents with the public.

A Summary of Principal Changes in the These Amendments

The Board has characterized the changes to its Rules in these amendments as falling into five broad categories: I Global Changes, II Definitions, Filing and Service, III “Unfair Labor Practice Cases, IV FOIA, and V Other Sections.

The amended Rules and the Board’s description of the changes run to 167 pages and given the fact that the Board in many circumstances holds the employers, unions and employees who appear before the Board in unfair labor practice and representation cases to strict compliance with its Rules, we have prepared this Act Now Advisory to summarize for readers what, as of now, appear to be the principle changes in the amended Rules.

Notably, although when the Board adopted amendments to the Rules and its procedures in representation cases that took effect in April 2015, the Board published extensive comparative materials for practitioners and members of the public describing how those amendments changed requirements and practice, as of yet no similar analysis has been released by the Board concerning the new amendments to the Rules.

Our review and comments in this Advisory follow the Board’s five categories: Global Changes, Definitions, Filing, and Service, Unfair Labor Practice (“ULP”) Cases, Freedom of Information Act (“FOIA”) matters, and Other Sections of the Board’s Rules.

Notably, and perhaps not surprising given that the existing rules concerning Representation Proceedings were adopted by the Board in 2014 and implemented in 2015, after extensive review and comment, the amended Rules do not specifically address any of the sections of the Rules concerning Representation Cases.

I Global Changes

These changes to the Board’s Rules apply to all types of cases and proceedings. Key changes are as follows:

  • All requirements for filing multiple copies of documents have been removed from the Rules. Under the existing Rules, there were numerous circumstances where parties were required to submit multiple copies of documents. This often caused confusion when a party used the Board’s E-Filing system to electronically file documents.
  • The amended Rules use plain English. The amended Rules have been revised “to use plain English and eliminate terms such as “therefrom,” “thereupon,” “therein,” “herein” and “said.”
  • Time periods have been changed to multiples of 7. While the Summary suggests that all time period calculations have been changed to multiples of 7, this is not actually so. For example, in representation cases, there are still numerous requirements that filings be made and actions taken in shorter time frames. Parties will need to consult the actual section of the Rules to determine what the applicable time requirements are
  • Gender specific language is eliminated in many cases.
  • Ambiguous words are replaced. The word “shall” has been replaced with either the word “must,” ”will” or “may” to make clear whether a particular action is required or discretionary.

II Changes Concerning Definitions, Filing and Service

The Board’s filing and service requirements, contained in Sections 102.111 through 102.114 of the Rules have been reorganized and modified. Rather than placing filing and service requirements in the portions of the Rules that addressed particular types of cases and proceedings, all filing and service requirements are consolidated in Section 102 of the amended Rules.

  • Separate sections for definitions and service and filing.
  • New provisions addressing notice to the Board of “supplemental authority and signatures on E-filed documents. See Sections 102.6 and 102.7.
  • Time requirements for filings in Board cases have been reorganized. See Section 102.2.
  • The Board has changed the Rules’ “time computation” provisions for filing “responsive documents.” Under the amended Rules, “the designated period” for filing a responsive document will now begin to run “on the date the preceding document was received by the Agency, even if the preceding document was filed prior” to the date it was due to be filed.
  • Calculation of when an E-Filed document must be filed. Under the amended Rules, E-Filed documents must now be filed and received on the due date “by 11:59 p.m. of the receiving office’s time zone.”
  • The amended Rules change the requirements concerning requests for extensions of time to file documents with the Board.
    • Requests for extension of time must generally be filed no later than the date on which the document is dues, but may be filed within 3 days of the due date in circumstances “not reasonably foreseeable in advance.”
    • All requests for extensions of time must be in writing. While such requests have typically been made in writing, the Rules did not actually require this until now.
    • The amended Rules add language encouraging parties to seek agreement from other parties for extensions of time and requiring that any request for an extension of time include the positions of all other parties. Hereto, while most practitioners have typically taken these steps and the Board has encouraged them, they have not been required by the Rules before.
    • The amended Rules require any party opposing a request for an extension of time to file their opposition in writing “as soon as possible following receipt of the request.”
  • Newly added Section 102.2 (d) puts in writing for the first time the Board’s practices and requirements in connection with documents that are not filed or served by the time required and established procedures for requesting permission to file a document after it is due.
    • The amended Rules allow for the late filing of certain documents “within a reasonable time after the time” required under the Rules “upon good cause shown based on excusable neglect and when no prejudice would result.” Significantly the term “excusable neglect” is not defined in the Rules or the Act.
    • The amended Rules indicate that the types of documents that may be filed late in unfair labor practice proceedings are motions, exceptions, answers to complaints and backpay specifications and briefs.
    • The amended Rules indicate that the types of documents that may be filed late in representation cases are exceptions, requests for review, motions, briefs, and responses to each of these types of documents,
    • Under the amended Rules, any request to file one of the specified documents must be made by written motion, and the motion must include the document the party is seeking permission to file late and the grounds for the request, which need to include the “good cause” and the reasons the party asserts that no prejudice would result. These facts must be contained in an affidavit and “sworn to by individuals with personal knowledge of the facts.”
    • A party opposing a request for permission to late file can file an opposition to the request, but not until after a ruling on the request. In other words, a party cannot oppose a request for permission to file late until after the request has been granted.
  • The amended Rules change the methods of service that are permitted.
    • Parties can no longer serve papers by telegraph.
    • The amended Rules give the Board the right to serve any documents by facsimile or email.
    • The amended Rules authorize the service of subpoenas by private delivery service.
    • Section 102.5 (c) provides for much greater use of the Board’s E-Filing system for the electronic filing of documents. Under the new rule, the Board adopts the requirement that all documents other than unfair labor practice charges, representation petitions and showings of interest in representation cases must be filed through the Board’s E-Filing system unless a party submits with its hard copy document a written statement explaining why the party does not have access to the means to use E-Filing or why E-Filing would impose an undue burden on the party.
    • Section 102.5 (e) restricts the ability of parties to file documents with the Board by facsimile. Under the amended Rules, the only documents that may be filed by facsimile are unfair labor practice charges, representation case petitions, objections to conduct affection the outcome of a representation election, and request for extension of time for filing of documents.
  • New provisions for Notice to the Administrative Law Judge (“ALJ”) or Board of Supporting Authority.
    • Section 102.6 adds a formal process for the first time enabling a party to make a supplemental submission, after it has filed a brief to the Board or an ALJ, when it becomes aware of “pertinent and significant legal authority.”
    • A party may bring such authority to the attention of the ALJ or the Board by “promptly filing a letter with the judge or the Board,” and serving copies of the letter on all other parties.
    • The body of such a letter “may not exceed 350 words,” and any reply is subject to the same word limit.
    • In an unfair labor practice case, any response must be filed within 14 days, while in a representation proceeding it must be filed within 7 days after service.
  • The amended Rules allow for electronic signatures on documents filed with the Board.
    • While parties have routinely submitted documents with electronic signatures to the Board in the past, the amended Rules formally recognize the use of electronic signatures and make provision for them.
    • Electronic signatures will now have “the same legal effect, validity, and enforceability as if signed manually.” Section 102.7.
    • The amended Rules define electronic signature as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the document.”
    • The Board’s adoption of this rule confirming its acceptance of electronic signatures should come as no surprise, given the announcement by the Board’s General Counsel in September 2015 that the agency would accept employees’ electronic signatures as part of a union’s showing of interest in support of a representation petitions.

III Unfair Labor Practice Cases

  • The changes to the Rules concerning Unfair Labor Practice (“ULP”) cases are primarily procedural and consistent with the administrative-type changes described above.
  • Under revised Section 102.11, a party filing a charge by facsimile will no longer be required to submit the signed original as well. The Board has explained that this change is intended to prevent the docketing a second time of a charge that was filed by E-Filing or facsimile when the hard copy is received by mail.
  • The Board will no longer permit a party filing a charge to submit attachments to the charge form. Section 102.12 (b).
  • Revised Section 102.14 (a) eliminates the requirement that before a party filing a charge serves a copy on the respondent that the respondent’s permission be obtained in advance if the charge is going to served by facsimile. Advance permission will still be required before service of a charge by email.
  • Regional Offices will now be able to serve charges not only by regular mail or facsimile but also in person, by private delivery service, by email or in any other method permitted by Rules 4 and 5 of the Federal Rules of Civil Procedure, or in any other agreed upon manner.
  • The amended rules address the question of when service of a charge is considered to have been made when the charge is served by email.
    • When service is by email, “the date the email is sent” will be considered the date of service.
    • When service is by mail or private delivery service, the date the charge is deposited with the post office or the other carrier will be considered the date of service.
    • In the case of service by facsimile, the date the fax is received will be considered the date of receipt.
    • No explanation is offered for the decision to treat facsimile and email so differently.
  • The amended Rules address the question of when a Regional Director has the authority to change the date, time and place of a ULP hearing, either on his or her own authority or with the agreement of the parties. Under Section 102.16, these may be changed when
    • All parties agree to the change of the hearing date;
    • New ULP charges have been filed which, “if meritorious, might be appropriate for consolidation with” the earlier case or cases;
    • Where there are ongoing settlement discussions which the Regional Director concludes “could lead to settlement of all or a portion of the complaint;’
    • Where there are issues related to the complaint “pending before the General Counsel’s Division of Advice or Office of Appeals;” or
    • Where there are more than 21 days remaining before the scheduled start of the hearing.
    • Note that this gives the Regional Director great discretion as the provisions concerning postponement because of related issues being under consideration by the Division of Advice or the Office of Appeals is not limited to pending cases involving any of the same parties.
  • Section 102.24 (c) codifies what has been the Board’s practice, under D. L. Baker, Inc., 330 NLRB 521, fn. 4(2000) concerning replies to oppositions to motions filed with the Board.
    • A party that has filed a motion with the Board will be permitted to submit a reply to any opposition to that motion within 7 days of its receipt of the opposition, but “in the interest of administrative finality,” no further responses are permitted.
  • The amended Rule 102.31 (a), which concerns subpoenas in ULP cases, now specifically recognizes that Board subpoenas can require the production of “electronic data.”
  • Amended Rule 102.31 (b) codifies that a party adversely affected by a ruling on a petition to revoke a subpoena has the right to make the ruling and related pleadings a part of the record in the ULP hearing.
  • Section 102.45 will for the first time make the Board’s existing Alternative Dispute Resolution (ADR) Program, which is really a mediation program, a part of the Rules.

IV FOIA

The Board’s summary describes the amendments to the Rules concerning the Board’s processing of requests made under the Freedom of Information Act (“FOIA”) as being intended to “update and streamline procedural provisions of the (NLRB’s) FOIA regulations,” and to reflect organizational changes within the Board’s Headquarters and “centralization” of the Board’s FOIA processing formerly located in the regional offices. The Rules changes are also described as intended to make the Board’s FOIA regulations “more readable and requester-friendly.”

  • Section 102.117 (c)(1)(ii) codifies the existing requirement that FOIA requests be made to the Board’s FOIA Officer in Washington, rather than to the Regional Office where the case that is the subject of the request was processed.
  • The amended Rules express the Board’s “preference” for requests to be made electronically.
  • The amended Section 102.117 (a)(4) no longer includes a lost of the records the Board will produce under FOIA. Instead, the Board refers parties to the text of the amended FOIA Improvement Act of 2016.
  • Under amended Section 102.117(c)(2)(v), parties will have 90, rather than 28 days to file administrative appeals of adverse determinations on FOIA requests.

V Other Sections

According to the Board’s summary, this group of amendments to the Rules are quite limited.

  • The amended Section 102.96 may be of interest to employers as it relates to the circumstances in which the Board, following investigation of a ULP charge alleging unlawful secondary boycott activity by a union in violation of Section 8 (b)(4) of the Act, determines that Section 10(l) injunctive relief is appropriate and should be sought by the Board in district court.
  • Amended Section 102.96 mandates that the Regional Director is to “promptly” issue a ULP complaint, “normally within 5 days of the dates when injunctive relief is first sought” in court.

The Board’s Required Findings Concerning the Amended Rules

  • While President Trump has spoken repeatedly of his intent to slash the number of rules and regulations under federal law and has called for any new rule or regulation to be offset by the elimination of two existing rules or regulations, the Board has not addressed those mandates in either its summary or the amended Rules themselves. The Board has however made required findings concerning rule making under existing federal laws.
  • As required under the Regulatory Flexibility Act, the Board has determined that the amendments to the Rules “will not have a significant impact on a substantial number of small entities.
  • In accordance with the requirements of the Unfunded Mandates Reform Act of 1995, the Board states that the amendments “will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year.”
  • The Board has concluded that the adoption of the amended Rules “is not a major rule as defined under the Small Business Regulatory Enforcement Fairness Act of 1996.”

What Employers Should Do Now

It is perhaps ironic that the Board, composed of two Democrats and one Republican, all holdovers from the Obama Administration, has chosen this moment, just a month into the Trump Administration and as rumors have begun circulating as to who President Trump will nominate to fill the 2 vacant seats on the Board reserved for members of the President’s own parties, i.e. Republicans.

No doubt, once those seats are filled a new Republican majority on the Board will begin to address far more substantive matters under the Act, including the many changes in the interpretation of the Act of the past 8 years.

Regardless of the substantive decision making of the Board, it remains critical that employers and all others with business before the Board understand the procedural and statutory framework under which the Board conducts its business. Those who do not study these amendments and follow their dictates risk being undone by not knowing the rules that govern all cases.

D.C. Court of Appeals Highlights Importance of Offers of Proof in NLRB Representation Hearings Under Expedited Election Rules

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A recent decision of the United States Court of Appeals for the District of Columbia Circuit in connection with an employer’s challenge to a National Labor Relations Board (“NLRB” of “Board”) representation election in which the Board certified a “wall to wall” bargaining unit provided clear evidence of just how critical it is for employers to make detailed “offers of proof” concerning issues the Board will not allow them to litigate under the amended election rules which took effect in April 2015.

While this case involved a representation petition filed before the new election rules took effect, its lessons concerning the importance of offers of proof concerning issues that the Board will not permit a party to litigate in a representation case under the amended rules are even more important now.

Judicial Review of the Board’s Representation Case Findings

After the union won the election and the employer challenged the Board’s unit determination by refusing to bargain, the Court recently held that the Board erred in finding that a “wall to wall” bargaining was appropriate because it ignored the facts the employer presented, without challenge, in an “offer of proof” offered at a Board conducted representation hearing.  The Court held that the offer of proof contained facts that supported the employer’s contention that the employees in the unit  the union sought to represent did not share a community of interest, which under the National Labor Relations Act (the “Act”) is necessary. See, NLRB v. Tito Contractors, Inc. (No. 15-1217, D.C. Circuit, February 3, 2017).

The Union Sought a Wall To Wall Unit

The union in this case petitioned for an election in in a single “wall to wall” unit, including workers in diverse job classifications at multiple facilities..  The employer argued that the proposed unit was not an appropriate unit under the Board’s unit determination standards and asked for a hearing on the issue.  The employer argued that a hearing was necessary because the  petitioned for unit was inappropriate because the employees performed different jobs at different locations and under different terms and conditions of employment and sought a hearing on that issue. While the Regional Director scheduled a hearing, the Hearing Officer refused to permit the employer to call witnesses and present its evidence on the issue. The Region instead directed the employer to make an offer of proof, describing what its witnesses and evidence would show, if it were permitted to present its evidence, to rebut the presumption under Board law that an employer wide unit was an appropriate unit.

The Hearing Officer’s Refual to Accept the Employer’s Offer of Proof Into Evidence

The employer made a detailed offer of proof showing that it operates a diverse contracting business comprising “two discrete halves”- one side that involves labor, and a second side that involves recycling. It explained that (1) the labor side employed painters, tile installers, masons and carpenters who performed work for customers, (2) the recycling business involved three separate recycling contracts with a different customer and (3) the recycling work is performed at multiple sites, located many miles from each other and under differing working conditions.

Upon the employer made its offer of proof, the Hearing Officer went off the record and consulted with the Acting Regional Director, and then summarily rejected the employer’s offer of proof and denied any hearing on the issue. An election was then directed in the wall to wall unit the union requested.

While the employer requested review of the Decision and Direction of Election (“D&DE”) and the Hearing Officer’s ruling on the offer of proof, the Board affirmed the Hearing Officer’s rulings including the refusal to accept the offer of proof into evidence and denied the employer’s request for review of the Acting Regional Director’s decision directing an election in the unit the union had requested in a perfunctory two line denial.

The Court’s Decision

After the election, the employer sought review by the Court of Appeals and the Board sought to have its findings affirmed and the order directing the employer to bargain with the union enforced.

The Court rejected the Board’s decision. The Court held that the requirement that the Board’s decision be supported by substantial evidence included a requirement that the Board consider and analyze contrary evidence as well.  The Court concluded that the offer of proof plainly showed evidence that countered the conclusion of a community of interest for three reasons.  First, neither the union nor the Board challenged the employer’s assertion that its business was comprised of two separate and discrete operations—labor and recycling – performing different types of work at different facilities.  Second, the Court concluded the Board erred when it ignored the facts contained in the employer’s offer of proof, which evidenced a lack of interchange among the employees in the two operations, a fact the Acting Regional Director acknowledged and cited as a justification for a mail ballot election.  Third, the Board ignored the significant differences among the employees’ wages, hours and working conditions.  Based on the Board’s failure to address the contrary evidence, the Court granted the employer’s Request for Review and remanded the case to the Board for further proceedings.

Judge Karen L. Croft Henderson, who authored the decision, added a separate concurrence in which she admonished the Board for issuing a two sentence order which, like the Region, failed to adequately consider the evidence outlined in the Offer of Proof.

What This Case Means For Employers

Although this case was decided under the Board’s pre-2015 expedited election rules, it offers a number of important lessons for cases under the new expedited rules which include increased reliance on offers of proof to avoid lengthy hearings.

First, the Court of Appeals held that the Board’s responsibility to base findings on substantial evidence included the responsibility to review and analyze contrary evidence, even if that evidence is only in an offer of proof that is rejected.

Second, employers, faced with the requirement of presenting an offer of proof, should include in such offer as much specific factual detail as necessary to support its arguments. By so doing, the employer may be able to establish a sufficient record for an appellate court to determine whether the Region and the Board gave the offer adequate consideration.

Finally, under the new election rules, the Board takes the position that an employer waives any issues that it does not raise in the Statement of Position that must be filed with the Regional Director and served on all other parties by noon on the business day prior to the eighth day after the petition is filed.  For that reason it is critical that an employer identify with as much particularity as possible all issues that it intends to raise at the hearing including all issues as to which it may seek to make offers of proof.

Labor Department Backs Away from Permitting Unions at OSHA Safety Inspections

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As we reported last week, the U.S. District Court refused to dismiss a challenge to OSHA’s controversial 2013 Fairfax Memorandum, which allowed for the participation of union representatives in OSHA safety inspections at workplaces where the union did not represent the workers.   We asked at the time whether the Trump Administration would continue to defend that change in policy.  This week, we saw the first concrete evidence suggesting that OSHA is at least reconsidering and may at a minimum drop its defense of the practice.

On Monday February 13th, OSHA filed an Unopposed Motion For Extension of time, requesting an additional 30 days to file an answer to the complaint, which otherwise would have been due today, February 17th. As OSHA’s lawyers explained in the Motion, the agency stated that “the extension of the deadline for defendants to answer is necessary to allow incoming leadership personnel at the United States Department of Labor adequate time to consider the issues.”

While it may be risky to predict with assurance what the outcome will be of the incoming leadership’s assessment of the issues, there is a strong likelihood that the new leadership may abandon not only the defense of this legal challenge but that they will also return to the interpretation of the OSHA regulation allowing for an employee representative at such Safety Walkarounds until 2013. As OSHA’s own rules make clear, while employees have the right to an employee representative present, the “authorized representative(s) shall be an employee(s) of the employer,” unless “good cause is shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may  accompany the Compliance Safety and Health Officer during the inspection.”

With the new administration’s nomination of R. Alexander Acosta, it appears that the new incoming leadership may be taking shape at the Department of Labor.  No doubt, the question of union representation at OSHA safety walkarounds will be only one of many issues that the incoming leadership personnel at the United States Department of Labor will be taking time to reconsider.

Could Employee Choice End Labor Unions’ Influence?

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In 2016 private sector union membership dropped to its lowest level in history – a dismal 6.4%. Given the laws and systems in place related to union membership, this means that at least 94.6% of all American private sector workers currently choose not to be union members. The drop, recently reported in a routine annual report issued by the U.S. Department of Labor’s Bureau of Labor Statistics, also was the largest year over year percentage drop in recent years, dropping 0.3%, from 6.7% in 2015.

While the percentage of union members as a portion of the total workforce saw a steep drop, possibly more disturbing to union bosses is the fact that the actual raw numbers of union members also dropped over 100,000 members from 7.554 million to 7.435 million dues paying members. This loss of dues revenue could hurt unions’ efforts to organize members as well as lobby and elect politicians.

Report reveals employees choosing to reject unions.

What is remarkable about these numbers is what is behind them. All of the above numbers are based on union membership, individuals who are dues paying members either by choice or as a result of a compulsory union security clause in a non-right-to-work state. What the above numbers do not show is the numbers and percentages of the employees represented by unions.

The percentage represented remained relatively stable, only dropping 0.1% from 7.4% to 7.3% of all private sector employees. More striking, the raw number of employees represented actually slightly increased from 8.411 million to 8.437 million. The fact that there are actually more total employees represented by the unions but less total employees who are union member may be the biggest news of the recent report. It indicates that more employees are choosing to reject joining a union, even though the union represents them.

This fact has import not only in analyzing how union membership fell to a record low, but also what could be on the horizon for unions. Specifically, this drop seems caused by the growing support for the “Right-to-Work” movement.

The Right-to-Work resurgence.

 Right-to-Work refers to statutes which are adopted for the express purpose of allowing employees the right to choose to join and pay dues to a union or choose not to be a union member. At their heart is employee choice – employees having the choice to decide whether they want to be a member of the union or decide they want to keep their job but not be a union member.

While the movement is far from new, it has enjoyed a resurgence in the recent years. This resurgence did not start in the typical Right-to-Work strongholds of the South, but bubbled up from historically union strongholds in the Rust Belt; possibly getting its genesis with the very public brouhaha over the 2011 Wisconsin public sector reforms instituted following the election of Governor Scott Walker.   Shortly thereafter the Right-to-Work movement’s renaissance began as in 2012 Michigan and Indiana became Right-to-Work states; shocking the labor community and freeing private employees in those states from compulsory union membership. Wisconsin followed, extending Right-to-Work to its private sector employees in 2015. West Virginia passed Right-to-Work in 2016 and already this year both Missouri and Kentucky have joined the ranks for a total of 28 states now guaranteeing private sector employees the right to choose whether or not to become dues paying union members. New Hampshire seems poised to join the others as the 29th state soon. Add to this the counties and municipalities which have recently passed local Right-to-Work laws; a practice under dispute but sanctioned in late 2016 by the 6th Circuit Court of Appeals in UAW v. Hardin. Together, the Right-to-Work movement is experiencing its greatest success since the 1950s.

The new BLS report shows this resurgence has had real impact on the labor movement. Not just in the loss in the national percentage or even in the loss in raw number of members; rather by delving into the report, the true scope and possibly future can be ascertained. For example, Wisconsin, in its first year following giving employees the Right-to-Work, saw its total (public and private, BLS does not separate on a statewide basis) union membership dropped from 8.3% down to 8.1%.   Michigan dropped from 15.2% down to 14.4%. Moreover, when you look all the way back to 2011, the year before Michigan passed Right-to-Work, Michigan’s union membership rate was 17.5%. In just 5 years, Michigan unions have lost 3.1% and dropped from 671,000 down to 605,000 dues paying members. This is a remarkable 10% plus loss in their ranks. Indiana likewise as dropped from 11.3% in 2011 down to 10.4% in 2016 despite tremendous job growth in traditionally unionized industries. Obviously, it is too soon to understand the true impact of Wisconsin, let alone West Virginia, Missouri and Kentucky, but if their precursor states are an indication, 6.4% may not be the historic low for long.

What this analysis also suggests is that 6.4% is not lily fully reflective of the percentage of American private sector workers who want to be dues paying members. With 22 states still allowing compulsory union membership through union security clauses and with those states actually having the majority of remaining union members, the true number of individuals who actually want to be union members is possibly far less.

National Right-to-Work, a real possibility?

This currently trapped group of American forced union members and their potential liberation is what could be even more concerning for unions and their coffers than the recent report of the historic low. Until very recently the Right-to-Work movement had realistically only been a state by state movement. For the first time, however, there is a real possibility that national Right-to-Work legislation could pass. In January Representatives Steve King of Iowa and Joe Wilson of South Carolina introduced the National Right-to-Work Act which would prohibit compulsory union membership for private sector employees covered by the National Labor Relations Act and the Railway Labor Act. While similar legislation has been proposed consistently in years passed, President Trump has stated he is a supporter of Right-to-Work (while President Obama would have swiftly vetoed it). With majorities in both the House and Senate, potentially the only thing stopping the Act would be a Democrat filibuster in the Senate. If Republicans held firm and could convince 8 Democrat Senators to join with them to break a filibuster and allow a vote, the US could have a national Right-to-Work law. Given the current division in Washington this may seem unlikely but 25 Democrat face election next year and 9 of those are from Right-to-Work states, including Michigan, Indiana, Wisconsin, Missouri and West Virginia plus another one from the teetering state of New Hampshire. Certainly it is possible.

As if these legislative threats were not enough, the battle over employee choice is being fought in the courts as well. Unions sighed collectively in relief last year when the Supreme Court deadlocked on the issue of whether compulsory dues collection from public sector employees was constitutional in Friedrichs v. California Teachers Association allowing the pro-union decision of the 9th Circuit to stand. However, in February the same lawyers who brought the Friedrichs case filed a new, virtually identical, suit in Yoon v. California Teachers Association. Likewise the case of Illinois public sector workers rights to choose to be union free is currently pending before the 7th Circuit in Rauner v. American Federation of State, County and Municipal Employees, Council 31. While these cases deal with public sector employees, many labor unions fear that an adverse ruling could be the first step towards a judicial determination that the NLRA’s sanctioning of union security clauses unconstitutionally violates individual employees’ free speech and freedom of association rights. Such a ruling would effectively make a national Right-to-Work law by judicial declaration.

Unions will not go quietly into the night.

Union’s will not take this existential threat without a counter offensive. Not only will they fight in Congress, the state houses and the courts, spending millions on lawyers and politicians, but they will fight in the workplace as well. With their backs to the wall employers should expect unions to be aggressively organizing, trying to use the Obama era gains they got through the Ambush Election rules and scores of pro-union NLRB decisions as the foundation for organizing drives. Unions will continue to try to grow their ranks in already heavily Democratic and more unionized states like New York (23.6%), California (15.9%), New Jersey (16.1%) and elsewhere where they can use their ranks, dues base and political clout to target employers. They will also continue to target industries where they have had more success like hospitals and other healthcare providers as well as industries where they are actually currently gaining like hospitality/accommodations (where membership is up from 7.4% to 7.6%) and telecommunications(where membership is up from 13.3% to 14.6%). They also will continue to push the traditional boundaries of the employment relationship, targeting franchisors in the fast food and other industries as well as the gig economy and companies such as Uber and Lyft utilizing independent contractors.

While the impact of the Right-to-Work resurgence and recent union membership reporting certainly indicates that giving employees a choice is a threat to labor unions; equally certain is that this threat is likely to cause more activity and challenges for employers who may be a target of unions seeking to replace lost revenue.

F17 and the General Strike Movement – Best Practices for Addressing Political Activity in the Workplace

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This week, an activist group calling itself “Strike4Democracy” has called for a day of “coordinated national actions” – purportedly including more than 100 “strike actions” across the country – on February 17, 2017. The group envisions the February 17th strike as the first in “a series of mass strikes,” including planned mass strikes on March 8 (organized by International Women’s Day and The Women’s March) and May Day, and a general “heightening resistance throughout the summer.” The organizers are encouraging people not to work or shop that day.

What Is Strike4Democracy Planning?

The February 17th strikes appear intended to be “community-based events,” and so while Strike4Democracy apparently intends for these strikes to serve as an overall protest against President Trump’s actions and policy pronouncement since taking office, the specific message of each strike may vary at the local level. For example, one organizing website in Cleveland describes the “demands” of its local February 17th strike to include “No Ban, No Wall,” “Healthcare For All,” “No Pipelines,” “End the Global Gag Rule,” and “Disclose and Divest” (including demands that President Trump release his tax returns and sell his businesses). According to Strike4Democracy, people are being encouraged to participate on “official strike days” by refusing to work, or they can use their lunch breaks “to disrupt and participate” by, for example, posting social media messages “that support democracy . . . to show how you #BreakLunch.”

What Does This Mean For Employers?

Employers may find themselves with some very difficult questions to answer on February 17th (and potentially after that): Do I have to grant a request for time off by one (or many) employees to attend these events? Can I discipline an employee who does not show up to work because he or she has chosen to participate in a mass strike action? Should I send out a message ahead of time to my employees regarding this event? If so, what can I (or shouldn’t I) say? The answers to these questions are largely going to depend on the particular facts of each case. While in many respects these are uncharted waters, the case law developed under the National Labor Relations Act (the “Act”) over the past 80 years does however offer some potentially meaningful guidance for analyzing these questions.

When employees take action to “improve their lot as employees through channels outside the immediate employee-employer relationship,” that activity is protected concerted activity under Section 7 of the Act so long as it has a direct connection to the employees’ working conditions. GC Memorandum 08-10 (2008), pgs. 1, 10 (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). There are, of course, some limitations on employees’ right to engage in concerted political activity. In 2008, the National Labor Relations Board’s (the “Board”) General Counsel issued a “Guidance Memorandum” that is relevant to the current situation, after the Board considered a series of unfair labor practice charges involving employees who missed work to attend nationwide and local protests concerning proposed legislation to restrict employers’ hiring of immigrants as employees. In GC Memo 08-10, the General Counsel concluded that under existing Supreme Court and Board precedent, when employees exert economic pressure on their employer by leaving work to support a political cause, that activity may not be protected if the employer has “no control over the outcome of that dispute.” GC Memo 08-10, pg. 10.

As an initial matter, therefore, the question whether an employee engages in protected activity by attending a February 17th rally or demonstration may largely depend on the cause or “demand” at the center of that that local event. A local rally focused on trying to convince the President to release his tax returns likely will not be found to have a direct connection to most employees’ working conditions. Protests concerning issues like immigration reform or opposing repeal of the Affordable Care Act with its implications for employer-provided health benefits, by contrast, might be found to have a more direct nexus to employees’ working conditions – particularly if those employees are immigrants or work in an industry that relies heavily upon immigrant employees.

However, even if employees’ participation in these mass strikes is considered protected concerted activity (as it concerns a specific issue directly connected to their work conditions and terms), an employer may still regulate that activity through its “lawful and neutrally-applied work rules.” GC Memo 08-10, pg. 13. Therefore, an employer can discipline an employee who violates a work rule by improperly using her cell phone on the work floor to tweet with the hashtag #BreakLunch so long as that work rule is lawful (i.e., it would not be found to violate the Act for some other reason) and has been uniformly applied to impose equivalent discipline on other employees in similar circumstances.

Similarly, an employer can rely on its lawful, uniformly-applied policies to evaluate whether to grant a request for time off to attend a February 17th rally – by asking, for example, whether the employee has sufficient accrued time, or has given enough advance notice, or has found someone to cover his work shift if that is ordinarily required. An employer may also apply its neutral attendance policy (which complies with all applicable leave laws, including local paid sick leave laws) to discipline an employee who simply fails to report to work without calling out.

An employer considering whether to distribute a message to employees in advance of the February 17th events must remain mindful that Section 7 of the Act also protects communications about political matters.  Accordingly, a rule prohibiting communications about political matters without clarifying context of examples may be unlawfully overbroad because employees could reasonably construe it to cover communications protected by the Act.

Similarly, a broad admonition against missing work could be considered by the Board to be an unlawful interference with employees’ rights to engage in otherwise protected concerted protected activity. For example in GC-Memo 15-08, which offered guidance on a broad range of employee handbook provisions, the Board’s General Counsel wrote that Memorandum notes that “one of the most fundamental rights employees have under Section 7 of the Act is the right to go on strike,” and therefore “rules that regulate when an employee can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts.” As we noted at the time, GC-Memo 15-08 recognized that not all rules concerning absences and leaving the workstations are unlawful, and that a rule would be lawful if “such a rule makes no mention of ‘strikes,’ ‘walkouts,’ ‘disruptions’ or the like” since employees should “reasonably understand the rule to pertain to employees leaving their posts for reasons unrelated to protected concerted activity.”

What Employers Should Do Now

All employers should be prepared to address these issues as they arise – if not this week, then in the coming weeks and months if these types of mass protests continue. As described above, an employer’s reaction to its employees’ expressed desire to participate in these events will vary widely based on the individual circumstances at issue.