Monthly Archives: September 2019

NLRB Adopts a New, Employer-Friendly Standard for Unilateral Changes to Job Terms and Asks for Input on Its Standard Protecting Profane Speech

David Keating and Kristofor Hanson

Over the course of the past year, the National Labor Relations Board (“Board”) has indicated its willingness to develop more employer-friendly standards that allow employers more flexibility in managing their businesses and their unionized workforces.  Just in the past week, the Board continued its efforts with a ruling allowing for greater ease in implementing unilateral changes to job terms and by seeking input on a troubling standard that had protected outrageous speech by employees.

In M.V. Transportation, 28-CA-173726, decided September 10, 2019, the Board overturned a long-standing, stringent standard that limited an employer’s right to make unilateral changes to job terms such as work rules and attendance policies.  In doing so, it adopted a new “contract coverage” test that allows employers more flexibility in making such changes.

The “contract coverage” standard allows an employer to make unilateral changes to employees’ terms and conditions of employment if the labor contract “contains a provision that broadly grants the employer the right to implement new rules and policies and to revise existing ones.”  An employer would thus have the right to enact changes such as implementing new attendance and safety rules or revise disciplinary or off-duty access policies, according to the Board.

Under the previous “clear and unmistakable waiver” standard, for an employer to make unilateral changes to work rules, attendance policies, or the like, it had to demonstrate that the contract specifically and unequivocally waived the union’s statutory right to bargain over that particular issue.  In overturning this standard, the Board followed the lead of the D.C. Circuit Court of Appeals, which had stated that the “clear and unmistakable waiver” standard was “in practice, impossible to meet.”

According to the Board, the new “contract coverage” test will allow every part of a collective bargaining agreement to be given its bargained-for effect, including those that give an employer the right to act without bargaining first.

Board Will Reconsider Its Loss-of-Protection Standards for Profane and Offensive Outbursts of a Racial and Sexual Nature

In another notable Board development, on September 5, 2019, the Board requested briefing on whether it should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature.  The Board issued a notice and invitation to file briefs in General Motors LLC, 14-CA-197985 and 14-CA-208242, seeking public input on whether to adhere to, modify, or overrule the standard applied in previous cases in which extremely profane or racially offensive language has been deemed protected by the National Labor Relations Act (“Act”).

Specifically, the notice seeks comments relating to the following cases: Plaza Auto Center, 360 NLRB 972 (2014), Pier Sixty, LLC, 362 NLRB 505 (2015), and Cooper Tire, 363 NLRB No. 194 (2016).  These cases, discussed in General Motors, resulted in considerable protection for outrageously offensive statements.The Board’s treatment of such sexually and racially offensive statements has been criticized as both morally unacceptable and inconsistent with other workplace laws by federal judges as well as within the Board itself.

About the invitation for briefing, Chairman John F. Ring stated: “The Board’s request for briefing on this important topic reflects its long-standing practice of seeking input from interested parties when the Board believes it can benefit from such briefing. We look forward to considering the views of all interested parties.” 

Amicus briefs not to exceed 25 pages in length may be filed with the Board in Washington, D.C. on or before November 4, 2019.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the notice and invitation to file briefs or any other labor or employment issue involving your business, please contact us at any time.

NLRB RULES MISCLASSIFICATION OF INDEPENDENT CONTRACTORS DOES NOT VIOLATE THE NLRA

By: Christopher J. Saugstad

September 6, 2019

On August 29, 2019, the National Labor Relations Board (the “Board”) determined that employers do not violate the National Labor Relations Act (the “NLRA”) merely by misclassifying employees as independent contractors when they should have been classified as employees.

In Velox Express, Inc., 15-CA-184006, 368 NLRB No. 61 (2019), the Board reversed a prior Obama-era decision which ruled Velox had unlawfully interfered with its workers’ rights under the NLRA. Velox Express, Inc. (“Velox”) is a medical courier service in which a number of its drivers were classified by Velox as independent contractors. The Charging Party in Velox raised group complaints of the independent contractor classification and was subsequently discharged.

Initially, an Administrative Law Judge ruled Velox had interfered with workers’ rights by Velox’s misclassification of the Charging Party. Upon review, the Board requested briefing and received thirteen briefs from twenty-eight interested parties. The Board, utilizing their recent decision in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), determined the workers were actually employees and therefore protected by the NLRA. The Board held Velox had violated the NLRA when it discharged the Charging Party for bringing to management’s attention group complaints regarding its treatment of employees.

Notably, however, the Board reversed the judge’s decision that the misclassification of independent contractors violated the NLRA as a separate and distinct violation. The Board reasoned “erroneously communicating to workers that they are independent contractors does not, in and of itself, contain any ‘threat of reprisal or force or promise of benefit.’” The Board held this type of misclassification would not inherently threaten employees’ adverse actions like discharge if they were to engage in protected activities under the NLRA; nor would the communication of classification solely show it was futile for the workers to engage in such protected activities. The Board explained, “[i]n and of itself, an employer’s communication of its position that its workers are independent contractors simply does not carry either implication.”

Additionally, the Board held that finding that a misclassification created a violation of the NLRA would deter employers from creating independent contractor relationships and would improperly shift the burden of proof to employers.

The Board’s recent ruling in Velox means the Board has removed itself from any future decisions based solely on worker misclassification. Unlike employees, who enjoy protected rights under the NLRA including unionization, independent contractors are not covered by the NLRA and are therefore not protected by it either. While this decision is viewed as a victory for employer, the importance of properly classifying and paying employees remains critical to avoid possible violations of the Fair Labor Standards Act (the “FLSA”).

Lindner & Marsack has represented employers in their dealings with unions for over a century. If you have any questions about this case or any other aspect of classic labor-management law, please feel free to contact us at any time.

NLRB PUTS NEW LIMITS ON UNION ORGANIZING ACTIVITIES ON PRIVATE PROPERTY

In Bexar County Performing Arts Center Fdn. d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019), the National Labor Relations Board has limited prior decisions, which allowed the employees of a tenant to engage in union activities on the private property of their employer’s landlord.  Whether or not the tenant’s employees normally worked at the location or the general public was invited to that location, the landlord’s property rights could exclude the union activities of the tenant’s workers on the premises if they interfered with the property owner’s business.  The only exception would be situations where the union had no “reasonable alternative” communication option to reach its “target [public] audience.”

Since the early 1940’s, employees enjoyed the right to engage in organizational activities on their own employer’s property in non-work areas during their off-duty time.  The original cases involved speaking, distributing leaflets, and sometimes picketing in the employer’s parking lots, lunch rooms, or locker rooms.  However, these rights did not apply to non-employees such as outside organizers paid by the union.  Unless the work location could not be reached without entering private property (for example, an isolated lumber camp), the non-employee was only allowed to deliver the union’s message from the nearest public property, typically, a municipal sidewalk.  Lechmere, Inc. v. NLRB, 502 U.S. 527, 537 (1992), quoting NLRB v. Babcock & Wilcox, 351 U.S. 105, 112-113 (1956). 

With the advent of shopping centers, office parks, and other complexes where the public was invited to enter private property in order to reach the business site of an employer, courts held that non-employees could leaflet and otherwise campaign on that private property.  Shopping centers and similar privately owned gathering places became the new “town square” where all kinds of groups, including unions, could take their message to the public.  This was especially the case when other methods of communication (newspapers, radio, etc.) could not reach the targeted workers.  In 2011, the NLRB held that a union seeking to organize a restaurant which leased a second floor space at a Las Vegas casino could campaign where the aisle used by the general public intersected with the restaurant’s entry.  New York New York Hotel & Casino, 356 NLRB 907 (2011), enf’d. 676 F.3d 193 (D.C. Cir. 2014).  The property was owned by a third-party landlord.  The theory was that people were invited to use this area like a public sidewalk, so the union could not be banned as some kind of trespasser unless the landlord could prove the activity would prevent its use of the property.

In a three to one decision this month, the NLRB held that the right to organize must be balanced with the property owner’s rights to limit the activities of trespassers.  In Bexar County Performing Arts Center, supra,musician-employees of the San Antonio Symphony were prohibited from leafleting the general public on the private walks surrounding the concert hall.  The musicians were “contractor employees” of the tenant symphony, not employees of the owner/landlord.  They only worked on the premises during rehearsals and performances 22 weeks of their 39 week season.  Thus, they did not have the rights of employees of the property owner, but were non-employees who could be barred from the property like the non-employee union-paid organizers in Lechmere and Babcock & Wilcox; supra.  The Board said:

“Off-duty employees of a contractor [tenant] are trespassers and are entitled to access for Section 7 [union activity] purposes only if the property owner cannot show that they have one or more reasonable alternative nontrespassory channels of communicating with their target [public] audience.”

The new balance requires consideration of the third-party landlord’s right to limit access (and disruption) by a union or its members if they can use alternative media to present their otherwise lawful message.  They are not the landlord’s employees; as non-employees they can be treated as trespassers and excluded from the private property to which the general public has access.

Lindner & Marsack has represented employers in their dealings with unions for over a century.  If you have any questions about this case or any other aspect of classic labor-management law, please feel free to contact us at any time.