Category Archives: NLRB

SUPREME COURT UPHOLDS USE OF CLASS ACTION WAIVERS

By:  Jenna K. Leslie

Yesterday, the Supreme Court of the United States issued a significant victory for employers when ruling that class and collective action waivers in employment arbitration agreements are fully enforceable under the Federal Arbitration Act (FAA) and do not violate an employee’s rights under the National Labor Relations Act (NLRA).

In Epic Systems Corp. v. Lewis (a companion case to National Labor Relations Board v. Murphy Oil USA and Ernst & Young LLP v. Morris), the high court issued a 5-4 decision upholding the validity of class action waivers in arbitration agreements.  Justice Neil Gorsuch, writing the majority opinion, explained that the FAA unequivocally requires federal courts to enforce arbitration agreements according to their terms, and nothing in the NLRA, which was enacted after the FAA, was intended to negate that requirement.  The opinion specifically found that Section 7 of the NLRA focuses on an employee’s right to organize and bargain collectively, but it does not create a right to pursue class or collective action lawsuits.

Writing for the dissent, Justice Ruth Bader Ginsburg called the majority opinion “egregiously wrong” and argued that the NLRA was intended to equalize the power imbalance in most employment relationships by allowing employees to band together through collective action to improve the terms and conditions of their employment.  The majority opinion rejected this notion, concluding that there is nothing in the NLRA that suggests a clear intention to displace the provisions of the FAA.

In recent years, employees have effectively used class and collective action procedures to bring massive wage and hour claims in both state and federal court.  This decision will curb those lawsuits and allow employers to rely on the enforceability of class and collective action waivers and arbitration provisions within their employment agreements.  Class and collective action waivers are useful tools used to preserve confidentiality, resolve claims more quickly, and limit potential exposure to collective action lawsuits.

This decision is said to affect at least 25 million existing employment agreements.  Employers should review their employment arbitration agreements carefully to determine which agreements are affected by this decision.  Employers should also consider whether it makes sense to implement such agreements prospectively, as the decision paves the way for employers to include class and collective action waivers in future employment agreements.

If you have questions about this material, please contact Jenna K. Leslie or  any other attorney you have been working with at Lindner & Marsack, S.C.

We look forward to seeing many of you tomorrow at our 2018 Annual Compliance/Best Practices seminar held at the Sheraton Hotel in Brookfield, Wisconsin.

THE NLRB BRIGHTENS THE SEASON WITH MULTIPLE EMPLOYER-FRIENDLY DECISIONS BEFORE THE NEW YEAR

By: Kristofor Hanson

As has been anticipated since the change in presidential administrations earlier this year, the National Labor Relations Board, with a Republican majority, issued a slew of impactful and employer-friendly decisions in recent days.  (The Republican majority on the Board was in place until December 16, 2017, when Chairman Philip Miscimarra’s term ended.  The Board now has two Republican appointees and two Democrat appointees until President Trump appoints a new member who must receive the approval of the United States Senate.)  These decisions, altering standards for workplace policies, joint employers, the duty to bargain, and bargaining unit makeup will come as a pleasant Christmas present to employers this year.

Interpreting Neutral Workplace Policies

On December 14, 2017, in The Boeing Company, 365 NLRB No. 154, the Board discarded its test for determining whether an otherwise facially neutral workplace policy violates the National Labor Relations Act because an employee “would reasonably construe” the policy to prohibit some form of protected Section 7 activity presently or at some point in the future.  Section 7 rights give employees protection for engaging in concerted activity, such as joining a union and discussing or complaining about the terms and conditions of their employment, among others.  At issue in the case was Boeing’s no-camera rule, which prohibited the use of “camera-enabled devices” such as cell phones on its property.  Boeing stated that it instituted this rule because of its security concerns, as Boeing is a “target for espionage by competitors, foreign governments, and supporters of international terrorism, and [it] faces a realistic threat of terrorist attack.”

In finding this rule lawful, the Board sharply criticized the “reasonably construed” test stating that it has been difficult to apply, failed to consider any legitimate reasons for the work rule, failed to allow for considerations of the type of industry and work settings involved, and provided no clear guidance for employers to determine what rules and policies were lawful.

Therefore, the Board decided a new test was appropriate and held that to determine whether a facially neutral work rule interferes or potentially interferes with Section 7 rights the Board will look at “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.”

This test provides employers with the ability to defend work rules that may limit employees’ abilities to exercise their Section 7 rights by establishing legitimate business justifications for their rules.  In addition to enunciating the new standard, the Board also created three categories of rules designed to aid in the evaluation of the legality of the policies.  Those categories are:

Category 1: Rules that are lawful either because (a) when reasonably interpreted, they do not prohibit or interfere with the exercise of NLRA rights; or (b) the potential adverse impact on protected rights is outweighed by justifications associated with the rules.  The Board found the Boeing no-camera rule to be such a justified rule and also determined that rules requiring employees to abide by basic standards of civility are similarly justified.  In doing this, the Board overruled past decisions in which employers were found to have violated the Act by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.

Category 2:  Rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.

Category 3:  Rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.  An example would be a rule that prohibits employees from discussing wages or benefits with one another.

The Board stated that going forward, its decisions concerning work rules will place work rules into one of these three categories.  Doing this will offer employers a fair amount of guidance, but employers must continue to carefully assess each proposed rule and policy to determine whether the business justifications for the rule are legitimate and outweigh any limitations the rule might place on employees’ rights under the Act.

Return to Previous Joint Employer Standard

In August 2015, in its Browning-Ferris decision, the Board altered long-standing precedent concerning joint employer status, holding that employers are joint employers if: (1) they are both employers within the meaning of the common law;  and (2) they share or codetermine matters governing the essential terms and conditions of employment. The central question under this standard was whether an employer exercised control over terms and conditions of employment directly or indirectly, or had reserved the right to do so.

On December 14, 2017, the Board reversed course on this standard and returned to the standard that had been in place prior to Browning-Ferris.  In Hy-Brand Industrial Contractors, 365 NLRB No. 156, the Board stated that it was reverting to the “direct and immediate control” standard, which had been in place for decades prior to the Browning-Ferris decision.

Under the direct and immediate control standard employers are considered joint when there is “proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control), the control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine.’”

This standard limits joint employer status to only those employers who have significant and direct control over the terms and conditions of employment and actually exercise that control.  It removes from consideration control that is reserved, but not applied, by the employer.

Unilateral Implementation of Work Rule Changes without Bargaining

On December 15, 2017, in Raytheon Network Centric Systems, 365 NLRB No. 161, the Board restored 50-year old precedent that allows an employer to implement changes to work rules without bargaining with a union if the employer has a past practice of taking similar actions.

This decision overturns a 2016 Board ruling that required employers to bargain with unions over changes workplace rules, even where employers had made similar changes in the past.  In Raytheon, the Board criticized the previous ruling as distorting common sense understanding of what constitutes and change in employment conditions and ignoring long-standing precedent concerning the impact of past practice on the labor-management relationship.

The case involved Raytheon’s unilateral adjustment of employees’ healthcare benefits.  The lower judge found that the adjustment was unlawful as it needed to be bargained.  However, the Board, overturning the decision, held that Raytheon was well within its rights to modify the employees’ healthcare benefits because it had done so annually each of the previous eleven years.

The Board stated that employer actions do not constitute a change if they are similar in kind and degree with an established past practice consisting of comparable unilateral actions.  The Board held this applies regardless of whether (1) a collective bargaining agreement was in effect when the past practice was created, or (2) no CBA existed when the disputed actions were taken.

Accordingly, the Board found that Raytheon’s change to the healthcare benefits of its employees was consistent with its past practice and did not require Raytheon to notify the employees of the proposed change and provide them with an opportunity to bargain before making the change.

Micro Bargaining Units are a Thing of the Past

In another December 15, 2017 decision, the Board overturned a 2011 ruling that allowed what were termed “micro units” to petition for a union election.  The case, PCC Structurals, Inc., 365 NLRB No. 160, overturned what is known as the Specialty Healthcare standard that required employers to establish that other employees who the employer believed should be included in a bargaining unit had an “overwhelming community of interest” with the petitioning unit.

In this decision, the Board returns to the traditional community of interest standard that it has applied “throughout nearly all of its history.”  This standard allows for the Board to evaluate the interests of all employees – both those within and those outside the petitioned-for unit – without having to determine whether their community of interest is “overwhelming.”  Rather, the traditional test requires the Board to assess multiple factors to determine the appropriate unit, such as:

whether the employees are organized into a separate department,; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised.

The Board found that the “overwhelming community of interest” standard was akin to gerrymandering and resulted in arbitrary and fractured units.  It stated the traditional community of interest standard takes into consideration those groups of employees who have “substantial” shared interests to be taken into consideration when determining appropriate unit size.

PCC Structurals involved an employer’s challenge of a Regional Director’s decision and direction for election of a petitioned-for unit of 100 welders.  The employer contended that the smallest appropriate unit actually consisted of more than 2500 employees.  The Board did not decide whether the unit sought by the employer was appropriate, but directed the Regional Director to reevaluate the unit based upon the standard enunciated in the case.

This decision eliminates the burden that had been placed on employers to establish an “overwhelming” community of interest among employees in order to enlarge a bargaining unit.  As the Board stated, that burden was nearly impossible for employers to achieve.  Employers now will be better able to expand bargaining units, which should allow employers to better combat union organizing efforts.

The decisions cited here can be found at https://www.nlrb.gov/cases-decisions/board-decisions

Should you have any questions about the cases and issues discussed above, please contact our offices.

 

Three Lindner & Marsack Attorneys to Present at the State Bar of Wisconsin Health, Labor & Employment Law Institute

Lindner & Marsack’s Tom Mackenzie, Laurie Petersen and Daniel Finerty will share expertise on a variety of employment law matters at the State Bar of Wisconsin’s 2016 Health, Labor, and Employment Law Institute, an event is designed to share comprehensive information to help attorneys stay current on new developments that impact health, labor and employment law practice.

The conference will be held at the Wilderness Hotel and Golf Resort in Wisconsin Dells on August 18-19 and the agenda includes:

  • Tom Mackenzie will co-present NLRB Update: The Changing Landscape of Labor with Jennifer Abruzzo, Deputy General Counsel to the National Labor Relations Board. The focus will be on ever-changing issues faced by today’s employers including topics critical to health care employers such as the use of cameras and videotaping in the workplace, “English only” policies, civility and confidentiality rules and other updates regarding recent changes to the election rules (Breakout Session 1: Thursday, August 18th at 10:05 a.m.).
  • Daniel Finerty will present Advanced Issues in Health Care Employee Background Checks to further review the applicable federal and state law regarding background checks and review recent examples of missteps in the hiring process and claims filed by applicants (Breakout Session 3: Thursday, August 18th at 1:25 p.m.).
  • How to Fire Someone the Right Way will be presented by Laurie Petersen along with Richard Rice of Fox & Fox, S.C. The session will explain that it is best to provide a legitimate, clearly-articulated business reason for termination in order to prevent costly litigation and obtain the best result (Breakout Session 3: Thursday, August 18th at 2:35 p.m.).
  • Lindner & Marsack will co-host a complimentary Thursday Evening Social Hour and Cocktail Reception for conference attendees (Thursday, August 18th at 4:50 p.m.).

The Conference also features an optional paid lunch with Tammy H. Scheidegger, Ph.D. According to Dr. Sheidegger, while “having it all” seems to go hand-in-hand with being “successful,” research on happiness, and the emerging science of neuro-counseling, is shifting the happiness paradigm and providing a clear roadmap for how “having enough” is actually the way to balance all aspects of one’s life.

Watch for live updates on Twitter at the #2016HLE conference from Daniel Finerty (@DanielFinerty). A full schedule and registration information is available at http://hle.wisbar.org/schedule.html.

Lindner & Marsack, S.C. has represented management exclusively in all facets of labor, employment, employee benefits and workplace injury defense law since 1908.  Call Tom, Laurie or Daniel at (414) 273-3910 regarding any of their #2016HLE topics, or visit http://www.lindner-marsack.com/ to learn more about the firm and how our experienced and innovative attorneys can help your business.

NLRB Expands Appropriate Bargaining Unit to Include Temporary Workers

In a 3-1 decision issued this week, the National Labor Relations Board (“Board”) reversed current precedent that prohibited the inclusion of temporary employees along with permanent, or “solely employed,” employees in a bargaining unit absent employer consent, as it returned to the previous standard under M.B. Sturgis, Inc., 331 NLRB 1298 (2000), where no such consent was required.

In its July 11, 2016 decision, Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, the Board expressly overruled the 2004 decision of Oakwood Care Center, 343 NLRB 659 (2004), which had held that the National Labor Relations Act (“NLRA”) did not authorize the Board to direct elections in units encompassing employees of more than one employer, i.e. a company’s employees and other employees placed at the company via a staffing agency.  The Oakwood Board further held that combining such employees would lead to significant conflicts among the various employers and among groups of employees.

With the Miller & Anderson decision, the Board reversed course again, holding that the terms “employer” and “employer unit,” as used within Section 9(b) of the NLRA, were sufficiently broad to encompass temporary employees performing work for another employer.  The Board also reasoned that the Sturgis standard better effectuated the purposes of the NLRA.

Going forward, the Board will apply the traditional “community of interest” factors when determining if a bargaining unit is appropriate.  The Board will determine whether the temporary employees and solely employed employees have the same or substantially similar interests as to wages, hours or other working conditions.

While the Board described its decision as a return to Sturgis, the landscape has changed since 2004, when Sturgis was last the standard.  Last year, the Board issued the highly contentious Browning-Ferris decision, which overruled two other long-standing joint-employer decisions.

Under Browning-Ferris, the Board greatly expanded the joint-employment standard by abandoning the requirement that an employer exercise “direct and immediate” control over an employee’s terms and conditions of employment and instead including relationships where an employer merely exercised “indirect” control or even where an employer has simply reserved the authority to exercise control.   Thus, between 2000 and 2004, when Sturgis was the standard, the law was much clearer as to when a joint-employer relationship existed.  Now those waters are far murkier, and employers will have to navigate them to make best judgments as to whether a joint-employer relationship exists and, if so, whether a group of temporary employees and solely employed employees have sufficient interests in common in order to create an appropriate bargaining unit.

Employers and other amici cautioned that a return to Sturgis would create confusion and hinder meaningful bargaining.  We will see whether those concerns bear out.

SAVE THE DATE FOR OUR ANNUAL COMPLIANCE/BEST PRACTICES SEMINAR!

Please mark your calendar for Lindner & Marsack, S.C.’s Annual Compliance/Best Practices Seminar!

WHEN:         April 14, 2016

8:00 a.m. – 12:00 p.m.

WHERE:       Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

This FREE half-day event will address current topics in labor, employment, benefits & worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

SESSION TOPICS INCLUDE: 

  • Labor Law Update: Including Recent NLRB Decisions, Right to Work and Collective Bargaining Trends
  • 2016 Employment Law Update
  • FMLA Update – A Best Practices Review
  • The Use of Temporary Workers in 2016 – A Panel Discussion
  • Update on Proposed Wisconsin Worker Compensation Act Reform
  • Winning Strategies in Defending Worker Compensation Cases – How to Avoid Early Mistakes in Investigating Claims

Watch your inbox as well as our Facebook, LinkedIn and Twitter pages for more detailed information about session topics and a link to register for this free seminar.

NLRB EXPANDS JOINT EMPLOYER STANDARD, EXPOSING MORE EMPLOYERS TO UNIONIZATION

By: Kristofor L. Hanson and John E. Murray

The National Labor Relations Board (“Board”) has expanded its joint employer test providing easier access to unions seeking to represent staffing agency temporary workers. The Board’s decision in Browning-Ferris Industries of California, 362 NLRB No. 186 (Aug. 27, 2015), will likely have far-reaching implications for businesses who have relationships with workers provided by staffing agencies whom they did not previously consider as their own employee.

The Browning-Ferris decision arose after the Teamsters sought to represent various temporary workers at a BFI recycling facility. At this facility, BFI had 60 employees who performed work outside the facility. Most of these employees were represented by the Teamsters. Approximately 240 individuals worked inside the facility. Most of these workers were temporary employees supplied by Leadpoint, a staffing agency. The Teamsters conducted a campaign to represent these temporary workers as employees of BFI. BFI claimed these workers were not their employees.

The Underlying Facts

BFI and Leadpoint had an agreement which designated Leadpoint as the sole employer of the temporary workers it supplied to BFI. Leadpoint and BFI shared responsibility for the temporary workers in a manner which is fairly common among employers who use temps. Leadpoint was responsible for hiring and supplying qualified workers, but BFI set the qualification standards and required a pre-employment drug screen. Both BFI and Leadpoint provided some training to the temporary workers. Leadpoint had the responsibility to discipline, evaluate and discharge these workers. However, BFI could discontinue the placement of a worker, and could recommend or request discipline. Leadpoint was responsible for paying employees and setting wage rates, so long as those rates did not exceed the rate BFI paid full-time employees for similar tasks. BFI set shift schedules, staffing levels, productivity standards and controlled the pace of work. Leadpoint assigned workers to particular shifts and jobs. BFI supervisors conducted pre-shift meetings for all employees. However, Leadpoint had three on-site mangers and three leads who supervised these workers. It also had an HR manager on-site. Despite their agreement, BFI actually exercised fairly little control over the Leadpoint workers.

The Board’s Ruling

The Board determined BFI’s “right to control the work of [these] employees and their terms of employment” was more important than BFI’s actual exercise of that control. The Board stated that it does not “require that this right be exercised, or that it be exercised in any particular manner” in order for BFI to be considered a joint employer. In other words, BFI was a joint employer of these workers because of the control it could exercise over them.

The Board’s decision departed from more than 30 years of Board decisions and federal case law which had held that the actual control exercised was more significant in determining joint employer status. Now an employer who exercises “indirect control,” “reserves authority” to exercise control, or “co-determines” terms and conditions of employment may well be a joint employer under the National Labor Relations Act. 

The Impact of the Board’s Decision

This decision will likely have a far-reaching impact for any employer who engages a staffing agency for temporary workers.

Increased Organizing. Particularly where it already represents an employer’s full-time workforce, unions presumably will begin to target temporary workers for representation campaigns. It will be challenging for employers to recognize and respond to these campaigns. However, the impact of this decision probably will not be limited to efforts to organize temporary workers. It will potentially reach into other areas, such as:

Franchisor-Franchisee relationships. Franchisees and franchisors historically have not been joint employers of the franchisee’s employees. However, the NLRB’s General Counsel currently is trying to hold McDonald’s liable as a joint employer for the unfair labor practices of its franchisees. Based on the Browning-Ferris decision, the degree of control McDonald’s could directly or indirectly exercise over these workers may determine its joint employer status. The Board, or unions, also may assert pressure on franchisors in an effort to organize the employees of their franchisees.

Secondary boycotts. The new joint employer standard may expand the number of employers union workers can lawfully picket.

Multi-party bargaining. If the Teamsters represent BFI’s temporary workers, situations could arise in which BFI and Leadpoint both need to be involved in collective bargaining. In addition, many employers use temporary workers supplied by more than one staffing agency. Each staffing agency may require a seat at the bargaining table. This decision also could cause employers to limit the number of staffing agencies they use.

At the present time, the full scope of this decision is difficult to assess. There will likely be further litigation related to the Browning-Ferris decision. The ensuing litigation may lead the current Board, or a future Board, to modify its application. Lindner & Marsack will be preparing a more detailed memorandum on these and other issues as they are addressed by the Board and by federal courts. If you have any immediate concerns about how this decision could affect your business, feel free to call or email Kris Hanson, John Murray, Jon Swain, Tom Mackenzie, or any other Lindner & Marsack attorney.

NLRB STRIKES ANOTHER EMPLOYER CONFIDENTIALITY POLICY

By: Daniel Finerty

On August 27, 2015, the National Labor Relations Board (Board) invalidated an employer’s confidentiality policy that was in place to maintain the integrity of its internal investigations. The Board determined both the original and revised confidentiality policies used by the Boeing Company unlawfully restrained employee rights to discuss the terms and conditions of their work and to engage in protected concerted activities under the National Labor Relations Act. However, the Board’s decision has clarified the muddy waters surrounding the effective use of confidentiality policies during internal investigations into sexual harassment, workplace threats and other employee misconduct.

Boeing’s original policy identified its interest in protecting the confidentiality of an internal investigation. It explained that such investigations typically dealt with “sensitive information and may be conducted under authorization of the Boeing Law Department.” As a result, the policy directed employees “not to discuss this case with any Boeing employee other than company employees who are investigating this issue or your union representative, if applicable.” The Board ruled that this policy potentially restrained employee speech. The Board rejected Boeing’s justifications, that the protected witnesses, victims, or employees from retaliation, harassment and rumors.

The Board also rejected Boeing’s revised confidentiality policy. In the revised policy, Boeing recommended that employees refrain from discussing an investigation. This slight change did not cure the Board’s initial concerns. Even the revised policy reasonably tended to inhibit employees’ rights to engage in activity protected by the NLRA.

A blanket confidentiality policy is unlikely to survive Board scrutiny regardless of whether or not it carves out discussions with a union representative. The Board has reaffirmed its position that “[e]mployees have a Section 7 right to discuss employer investigations with their coworkers.” To comply with the Board’s recent decisions, while protecting employees involved in an investigation, employer’s may want to consider:

  • Eliminating blanket confidentiality policies applicable to all investigations.
  • If an employer has specific reason to believe that any of the following circumstances may exist or arise during an investigation, a basis for an employer’s concern may be justified where:
    • Witnesses need protection;
    • Evidence is in danger of being destroyed;
    • Testimony is in danger of being fabricated; or,
    • There is a need to prevent a cover up.
  • If the documented concern(s) justify a restraint on employees’ right to discuss this particular investigation, consider narrowly-tailored confidentiality rules which meet the relevant circumstances and protect the integrity of the investigation without unreasonably limiting employees’ protected rights under the NLRA.
  • Consideration should be given to whether the need for confidentiality applies to all witnesses or only a limited group. All affected employees should be given a copy of the narrowly-tailored confidentiality policy and should be asked to sign an acknowledgement of receipt.

Tailoring any confidentiality restrictions to specific concerns that arise during a particular investigation is currently the best way to withstand Board scrutiny of those restrictions.

If you have questions about confidentiality policies, please contact Daniel Finerty at 414-226-4807, or any other Lindner & Marsack attorney at 414-273-3910.

Registration is now open for our Annual Compliance/Best Practices Seminar!

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

April 28, 2015

8:00 a.m. – 12:00 p.m.

Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road Brookfield, Wisconsin

This FREE half-day event will address current topics in labor, employment, benefits and worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

SESSION TOPICS INCLUDE:

  • Annual Labor & Employment Update (Plenary)
  • Wellness Plans – Ensure ADA Compliance & Avoid EEOC Litigation
  • Steps To Avoid The Retaliation Claim Trap
  • Worker’s Compensation Update
  • The National Labor Relations Board And Its Impact On Non-Union Employers

Save the Date!

 Please mark your calendar for Lindner & Marsack, S.C.’s Annual Compliance/Best Practices Seminar 

When:  April 28, 2015

Time:  8:00 a.m. – 12:00 p.m.

Where:  Sheraton Milwaukee Brookfield Hotel – 375 South Moorland Road, Brookfield, Wisconsin

This FREE half-day event will address current topics in labor, employment, benefits & worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

 SESSION TOPICS INCLUDE:

  • Annual Labor & Employment Update (Plenary)
  • Wellness Plans – Ensure ADA Compliance & Avoid EEOC Litigation
  • Steps To Avoid The Retaliation Claim Trap
  • Worker’s Compensation Update
  • The National Labor Relations Board And Its Impact On Non-Union Employers

Watch your inbox as well as our Facebook, LinkedIn and Twitter pages for more detailed information about session topics and a link to register for this free seminar.

WHY NOEL CANNING MATTERS

By:  Thomas W. Mackenzie

Last Thursday’s decision by the U.S. Supreme Court invalidating three of President Barack Obama’s recess appointments to the National Labor Relations Board throws into question hundreds of Board decisions issued between the recess appointments made in January, 2012 and July, 2013 when the current five member Board was lawfully confirmed by the Senate. The impact of this decision is three fold.

First, the current composition of the NLRB, three Democrats and two Republicans, will now have to revisit and issue new decisions on hundreds of cases that were decided by the invalidated recess-appointed NLRB which existed for eighteen months. The term of Democrat Nancy Schiffer is due to expire on December 16. Her departure could set up a two to two split between the NLRB’s Republican and Democratic members and create a significant hurdle for the changes envisioned by the Obama administration’s commitment to organized labor. If the Republicans win control of the Senate in the upcoming November elections, they could vote against confirming a new Board member, making significant change unlikely for the balance of President Obama’s term unless that change occurs in the next six months.

Second, the Supreme Court’s decision will likely result in significant delay for employers with cases currently waiting for decision by the Board. The NLRB will have to prioritize its goals and objectives over the next six months. Lindner & Marsack is currently representing employers with cases pending decision before the NLRB. If those cases do not fit the profile which the Democratically controlled majority deem to be a priority, delay into 2015 and beyond is likely. Assuming the Republicans regain control of the Senate, such delay may not be unwelcomed.

Third, logic tells you that the three Democratic Board members, all of whom represented organized labor as practicing lawyers, will likely rubberstamp the decisions of the invalidated Board members. However, sometimes logic falls when confronted by human behavior. It is fair game to question whether the new NLRB can resist the opportunity to put its own fingerprints on some of the prominent decisions that were issued by the invalidated Board. These cases would include the Gannett Co., Inc. decision, which overturned 50 years of precedent and held that employers must continue to maintain dues checkoff provisions requiring the automatic deduction of union dues from employee paychecks even after a collective bargaining agreement has expired. Piedmont Gardens overturned a rule dating back to 1978 that protected the confidentiality of witness statements taken during an employer’s internal investigation into alleged employee wrongdoing. The invalidated NLRB ruled that a blanket exception from releasing these statements to the union upon request no longer existed and instead the employer was required to conduct a balancing test that precluded giving witnesses a guarantee of confidentiality. In Banner Health, the invalidated Board found that an employer violated the law by maintaining a policy prohibiting employees from discussing ongoing investigations into potential misconduct including sexual harassment allegations. This decision, which affects all employers whether unionized or not, again precludes employers from giving a commitment of confidentiality in its investigation. Finally, it is unlikely that the current Board will refrain from casting its own view on the social media cases decided by the invalidated Board. These include the Costco decision (company’s prohibition on disparaging the employer or its employees on social media was unlawful) and Hispanics United of Buffalo (terminations of five employees who responded on Facebook to a coworker’s criticism of their job performance were deemed to be unlawful).

The grand promises by the Obama administration to organized labor have not been fulfilled. “Card check,” whereby an employer could have been obligated to recognize a union as the authorized representative of its employees without a secret ballot election, is dead. Moreover, almost six years into the Obama presidency organized labor has yet to see changes designed to speed up the election process or to provide enhanced access to the company’s email system for union organizing purposes. Although it is not inconceivable that the current NLRB will attempt to fulfill some of these commitments, the Supreme Court’s decision has made that objective more difficult.

If you have questions about anything in this e-alert, feel free to call Tom Mackenzie or any other Lindner & Marsack attorney at 414-273-3910.