Tag: NLRB

NLRB, Labor Laws and the Impact on NCAA Athletes

Can—and should—college athletes be classified as employees? The answer to that question may be in flux. In a recent episode of the In-House Roundhouse Podcast, Womble Bond Dickinson attorney and host Mark Henriques welcomed Womble Bond Dickinson attorney Mike Ingersoll and University of North Carolina School of Law Professor Barbara Osborne to discuss the latest developments. Both guests were scholarship student-athletes themselves during their college days, adding to their perspective on the many issues pertaining to college athletes as employees. This article is derived from that conversation and is the latest installment in Womble Bond Dickinson’s Opportunity Economy series.

Just when you think you have all the answers about college athletes as employees, the National Labor Relations Board changes the questions.

NLRB General Counsel Jennifer Abruzzo’s September 2021 memorandum states that her office will consider some college athletes to be employees moving forward. But a number of significant questions—including whether Abruzzo’s memo has the full support of the NLRB—remain unanswered.

The NLRB Memo: What it Says

Ingersoll explained that Abruzzo’s memo dovetailing off of the NLRB’s 2015 Northwestern University decision—which really was a non-decision. In that case, the NLRB failed to render a decision as to whether or not Northwestern University’s scholarship football players were university employees under the National Labor Relations Act. That non-decision created a gray area of the law that Abruzzo’s memo seeks to fill.

“Essentially, she has decided her office will prosecute disputes brought by students under the NLR Act as if they are employees,” Ingersoll said. “She said any mischaracterization of players as ‘student-athletes’ – which is a nomenclature that has been used for decades – will itself be consider a violation of the NLRA as far as her office is concerned.”

The NLRB hasn’t adopted this as its official position, though, and the memo appears to be limited only to private colleges and universities, because the NLRA only applies to private schools.

“The memo itself raises more questions than it answers,” Osborne said. “I think it invites student-athletes to file claims that they deserve to be paid as employees, and that opens a whole new can of worms.”

“The memo itself raises more questions than it answers. I think it invites student-athletes to file claims that they deserve to be paid as employees, and that opens a whole new can of worms.”

BARBARA OSBORNE, PROFESSOR AT UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW

So should the term “student-athlete” be scrubbed from the college sports lexicon?

Ingersoll believes colleges and universities should avoid using it, at least in the short term, if they believe they are at risk of having to defend employment claims in front of the NLRB.

“I always thought of myself as a student-athlete and was proud of that,” Osborne said. “I don’t necessarily know that using that term misidentifies, but you need to classify those people as employees.”

Unanswered Questions in the NLRB Memo

However, as Osborne notes, this raises the first of many serious unanswered questions. The NLRB memo would require at least some college athletes to be classified as employees. However, this is at odds with NCAA rules, which prohibit athletes from being institutional employees.

“So we have a conundrum,” she said.

Another question: Which athletes are covered by the memo? Ingersoll said that is unclear.

“The memo distinguishes ‘Certain Players’ as a capitalized term – but it doesn’t actually define the term,” he said. The NLRB only has jurisdiction over private colleges and universities, not state-supported schools.  The Northwestern University case applied only and explicitly to scholarship football players at Northwestern. It provided no opinion on other players in any other sport or at any other university, Ingersoll noted.

So to which students and sports does the memo apply? Only scholarship players or all varsity athletes? Both men’s and women’s athletics? Only so-called “revenue sports” or any officially sanctioned sport? To date, college officials and athletes don’t have any answers to these questions.

“Wait and see how it gets enforced,” Ingersoll said. “My assumption would be that it is intended to apply as broadly as the GC’s office can make it apply.”

Osborne said, “The ‘Certain Players’ term is very unclear. The only sport she mentions is football, but it’s hard to say if it’s just about football. But if the memo only applies to scholarship football players, you are leaving everybody else vulnerable.”

She explained that the NLRA is all about the ability to unionize and engage in activities related to exploring unionization, with the employer being prohibited from interfering.

“What she’s saying is that if these athletes want to unionize, we’re going to support that and (the colleges) can’t interfere. Again, though, that opens up so many more questions than there are answers,” Osborne said. For example, which athletes may organize? Can only private school athletes organize? And what exactly are “revenue sports?” This may vary from school to school. For example, the University of Georgia’s Gymnastics program is a profitable operation, while many schools actually lose money on football.

Another key question is that if athletes can organize, may they then collectively bargain with the NCAA about its rules and requirements. Ingersoll said all of this is unprecedented territory for college sports.

“From a legal standpoint, there’s been no union activities among college sports that I’m aware of,” he said. “As an athlete, it’s made clear to you early on that when you participate on a team, you are part of a dictatorship, not a democracy. There is no forcing the coaching staff or administration to do something they don’t want to do.”

Osborne said, “I absolutely agree that it’s not something athletes think about doing – they’ve got too much personally at stake…. The flip side is that we do see student-athletes, through the free speech aspect, uniting for causes. I see that as a more hospitable way to open up a dialogue as to what could be done to make things better, but I don’t see that in union terms.”

“From a legal standpoint, there’s been no union activities among college sports that I’m aware of. As an athlete, it’s made clear to you early on that when you participate on a team, you are part of a dictatorship, not a democracy.”

MIKE INGERSOLL

As an example, Ingersoll noted the 2020 college football season, in which a number of teams influenced their conferences to hold the season amid COVID-19 concerns.

What’s Next for Athletes as Employees?

The NLRB memo isn’t the only significant development related to the employment status of college athletes.

An Eastern District of Pennsylvania case brought by college athletes alleges employment status under FLSA demanding wages. The claim survived a motion to dismiss and is now up on appeal. This is quite different from the Seventh Circuit precedent in Berger, which the Appeals Court dismissed because it decided college athletes weren’t employees and, thus, aren’t subject to the FLSA.

“We’ll see what ends up happening at the appellate level in light of these decisions,” Ingersoll said. “At the time of the Berger decision (in 2016), the landscape was significantly different than it is now.”

Also, the NLRB hasn’t adopted the Abruzzo memo as its official position and is limited in scope. But Ingersoll said the memo may “bleed into” state and federal litigation—litigation he expects to increase in volume.

One factor driving increased litigation surrounding college athletes-as-employees is Supreme Court Justice Brett Kavanaugh’s concurrence in this year’s NCAA v. Alston decision. The case opened the door for college athletes to use their name, image and likeness for commercial purposes

“At the point where you get favorable state and federal decisions in court, you get some teeth behind this notion of athletes as employees,” he said.

“At the point where you get favorable state and federal decisions in court, you get some teeth behind this notion of athletes as employees.”

MIKE INGERSOLL

Osborne pointed out that there may be many unintended consequences if student-athletes are reclassified as university employees. For example, scholarships would be considered taxable income, and athletes may even be owed wages. Employment status also may impact Pell Grants or need-based financial aid eligibility. For student-athletes who are dependents on families, how would family taxes be impacted? “There are all sorts of tax implications,” Osborne said.

Such a change in status also could require colleges and universities to provide Worker’s Compensation coverage for student-athletes who are hurt on the job.

And then there is the NLRB memo itself. Is it effective without board adoption? And what would happen if the board does (or does not) adopt it?

“The memo essentially means that Abruzzo and her office will investigate and prosecute claims with the assumption that the athlete is a university employee,” Ingersoll said. However, he said the full board ultimately will have to make a decision on the memo and stake out a position.

“If the board were to reject Abruzzo’s position, that essentially kills it—Abruzzo is bound by the board. The board is going to have to stake out an official position. If the board adopts it, that will be the NLRB’s position and as long as the athlete meets the criteria, then the case will have to proceed under the assumption the athlete is an employee under the NLRA.”

“If the board were to reject Abruzzo’s position, that essentially kills it—Abruzzo is bound by the board. The board is going to have to stake out an official position.”

MIKE INGERSOLL

But the NLRB’s position certainly could change later under a different administration. “The real teeth are in state and federal litigation decisions. That’s when you will see a bit of a sea change,” he said.

“The thing that stops that wave of litigation would be if we have federal legislation—which we’ve had a lot of lobbying for,” Osborne said. Proposals on the table run the gamut from supporting everything the NCAA has done in the past to the proposed College Athlete Bill of Rights, which would provide compensation and revenue sharing for student-athletes. Osborne wonders if the uncertainty created by the memo might force some form of Congressional action.

In addition, she notes that 37 court cases decided that state student-athletes are not employees and do not have rights associated with employment. “We have to reconcile those precedents,” she said.

So the path forward remains uncertain, with many questions still left to be decided.

Ingersoll said, “Justice Kavanaugh did provide a road map for these challenges to move forward. But right now, the NLRB memo is limited in its scope and impact. There should be no rush to judgment until we have some binding case law.”

Also, click here to read “Alston Aftermath: NLRB General Counsel Memo Confirms Employment Status for Certain College Football Players Under the National Labor Relations Act and Declares an End to the ‘Student-Athlete’” by Mike Ingersoll.

Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.
For more articles on employment law, visit the NLR Labor & Employment section.

Federal Judge Says President Can Fire NLRB General Counsel

As we have previously reported, on his first day in office, President Biden fired former NLRB General Counsel Peter Robb after Robb refused to resign. This controversial move immediately sparked debate over the President’s authority to fire Robb, who was serving in the last year of his statutory four-year term when fired.

In response to Robb’s abrupt departure, challengers have argued that Robb’s replacement, Acting General Counsel Peter Sung Ohr, does not have authority to bring cases before the NLRB because his appointment was invalid. The NLRB has refused to weigh in on the issue, saying that it is a matter for federal courts to decide.

The United States District Court for the District of New Jersey addressed the issue in its recent order in the case Goonan v. Amerinox Processing. U.S. District Judge Noel Hillman granted the NLRB’s request for an injunction, despite Amerinox’s argument that the NLRB acting general counsel does not have authority to prosecute this matter because of Robb’s removal. Judge Hillman stated that federal labor law gives the President authority to fire NLRB general counsels without cause, and that the temporary assignment of an acting general counsel without compliance with the Appointments Clause does not render the NLRB’s petition for injunctive relief invalid.

Judge Hillman, however, did not specifically rule on the legality of President Biden’s firing of Peter Robb, nor were his comments about firing general counsels a deciding factor in issuing the injunction. Moreover, Judge Hillman noted that the NLRB’s regional director was seeking an injunction on behalf of the Board, not the general counsel.

Given the peripheral nature of Judge Hillman’s comments about firing general counsels generally, this case is not likely the end-all, be-all on the matter. Thus, unless the Supreme Court rules squarely on the issue of Robb’s firing, challenges will likely still roll in as potential defenses to charges brought by Ohr.

© 2021 BARNES & THORNBURG LLP
For more articles on the NLRB, visit the NLRLabor & Employment section.

Are Your Workplace Policies Compliant with the NLRA?

NLRB issues Memorandum GC-21-03 Signaling Aggressive and Expanded Enforcement of Section 7 Rights

On 31 March 2021, Peter Sung Ohr, Acting General Counsel of the National Labor Relations Board (NLRB), issued Memorandum GC 21-03 (GC 21-03) to the regional field offices signaling significant changes to enforcement priorities under Section 7 of the National Labor Relations Act (NLRA). In part, GC 21-03 indicates that the NLRB will be “robustly enforcing the Act’s provisions that protect employees’ Section 7 rights” and that “cases involving the retaliation against concerted employee conduct will be vigorously pursued.” GC 21-03 cites to increased workplace health and safety issues resulting from the COVID-19 pandemic as well as employees’ political and social justice advocacy concerns as factors necessitating increased enforcement of the NLRA.

NLRA Protections

The NLRA is a federal law that grants employees the right to form or join unions; engage in protected, concerted activities; address or improve working conditions; or refrain from engaging in such activities. The NLRA applies to almost all private employers but does not apply to federal, state, or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act. Some employers are surprised to find that the NLRA protects nearly all employees in the private sector, not only union employees or employees seeking to form or join a union. In fact, concerted activities protected under the NLRA often occur outside of the context of union activity. The NLRA does not cover, however, government employees, agricultural laborers, independent contractors, and supervisors (with limited exceptions).

It is not uncommon for the NLRB and its general counsel to modify or reverse their interpretations of the NLRA with changes in the composition of the Board. The political party of the presidency enjoys majority representation on the NLRB. Consequently, changes in the presidential administration often lead to significant changes for employers. GC 21-03 is emblematic of that trend. It states that “recent decisions issued by the current Board have restricted [Section 7 rights] for employees.” Specifically, GC 21-03 criticizes Alstate Maintenance1 and Quicken Loans2 for applying “mutual aid and protection” narrowly. The enforcement priorities highlighted in GC 21-03 are in stark contrast to enforcement priorities under the previous administration and a clear indication that employers should expect increased NLRB oversight for the foreseeable future.

Broadened Concerted Activities for Mutual Aid and Protection

Section 7 of the NLRA grants all covered employees the right to engage in “concerted” activities for the purpose of “mutual aid or protection.” The phrase “mutual aid or protection” focuses on “whether there is a link between the activity and matters concerning the workplace or employees’ interests as employees.”3 GC 21-03 indicates that such a link will be broadly construed, and it outlines an expansive characterization of what constitutes protected, concerted activity. As noted in GC 21-03, employee advocacy can have the goal of “mutual aid or protection” even when the employees have not explicitly connected their activity to workplace concerns. As examples, GC 21-03 cites to a solo strike by a pizza shop employee to attend a convention; protests in response to a sudden crackdown on undocumented immigrants or social justice concerns; and a hotel interview with a journalist concerning minimum wage issues. In addition, GC 21-03 highlights how concerted activity can occur outside of the context of union activity—such as when employees raise health and safety issues resulting from the COVID-19 pandemic or seek protections from government agencies.

Renewed Application of Inherenty Concerted Conduct

In addition to a clear directive to interpret concerted and protected activity more broadly under the NLRA, GC 21-03 also signals a renewed enforcement of conduct that is deemed “inherently concerted.” As noted in GC 21-03, employee conduct generally becomes concerted when it is “engaged in with or on the authority of other employees”4 or when an employee seeks either “to initiate or to induce or to prepare for group action.”5 In other words, concerted conduct revolves around employees’ intention to band together to improve their wages or working conditions. However, contemplation of group action is not required and employee discussions surrounding certain employment policies may be sufficient to constitute inherently concerted activity—even if group action has not yet been contemplated or is in its early stages. Indeed, as noted in GC 21-03, inherently concerted conduct need only involve a “speaker and a listener.” Further, GC 21-03 emphasizes that there are no “magic works” required for concert to attach. However, the NLRB has previously found that certain categories of workplace life have been found to be “inherently concerted”—namely, exchanges of information concerning (i) wages or wage differentials, (ii) changes in work schedules, (iii) job security, (iv) workplace health and safety, and (v) racial discrimination. GC 21-03 expressly warns that the NLRB will be considering such categories as well as “other applications of the inherently concerted doctrine” for the foreseeable future.

Key Takeaways

  • Employers should work with their counsel to ensure their workplace policies are compliant with the NLRA, including the expansive definition of protected conduct that will be enforced for the foreseeable future.
  • Employers should expect an increase in NLRB oversight and NLRA enforcement.
  • Employers should expect an increase in complaints brought by the NLRB, including increased prosecution of cases involving retaliation against concerted employee conduct.
  • Employers should exercise caution when deciding whether or not to discipline or discharge employees who have engaged in discussions or activities related to workplace health and safety (importantly as related to the COVID-19 pandemic), social justice issues, or political views.

1 367 NLRB No. 68 (2019).

2 367 NLRB No. 112 (2019).

3 Fresh & Easy Neighborhood Mkt., Inc., 361 NLRB 151, 153 (2014).

4 Meyers Indus., 268 NLRB 493, 497 (1984) (Meyers 1), remanded sub nom. Prill v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985), cert. den. 474 U.S. 948 (1985).

5 Meyers Indus., 281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F. 2d 1481 (D.C. Cir. 1987), cert. den. 487 U.S. 1205 (1988).

Copyright 2021 K & L Gates

ARTICLE BY Rosemary Alito and  Rio J. Gonzalez of K&L Gates
For more articles on the NLRB, visit the NLR Labor & Employment section.

NLRB Paves the Way for Graduate Student Unions

The March 15, 2021 Federal Register contained an unwelcome surprise for private colleges and universities. The National Labor Relations Board (NLRB) announced that it is withdrawing a proposed rule published last September that, if adopted, would have classified graduate students who are compensated in connection with their studies as non-employees.

The history behind the Board’s proposed “graduate student rule” is well-known. In a 2016 case captioned Columbia University, 346 NLRB No. 90, the Board ruled that graduate students are employees and therefore have the right to organize and bargain collectively. Obviously, this was a case of great significance in the higher education community.

By proposing the “graduate student rule” in September 2020, the Board sought to give blanket protection to private colleges and universities. Had the rule been adopted, these institutions could still have voluntarily recognized and bargained with graduate student unions. But, since the graduate students would have been non-employees, the colleges and universities would not have had a duty to recognize and bargain with graduate student unions.

With the rule withdrawal, the stage is set for graduate student unions

It is reasonable to expect that the withdrawal of the “graduate student rule” will reinvigorate the movement among graduate students to unionize. Indeed, graduate students at Northwestern University have already issued a statement that they expect this development to bolster their organizing efforts.

The consequences of this shift in the Board’s approach regarding higher education are potentially far-reaching. Where the duty to bargain exists, the right to strike also exists (unless the union bargains that right away at the table). The prospect of the “graduate student rule” being adopted acted like a brake on graduate students’ bargaining expectations.  Now they can be much more confident. For instance, graduate students at Columbia University who are planning to strike have lauded the decision to withdraw the “graduate student rule” and commented that it could not have come at a more opportune time.

Prepare now

Lastly, the withdrawal of the “graduate student rule” is expected to be just the first of many changes, both regulatory and legislative, aimed at strengthening unions’ ability to organize. Whether or not they are aware of this, many colleges and universities have an urgent need to assess management policies and practices, as well as campus culture, in order to prepare for possible organizing efforts.

© Steptoe & Johnson PLLC. All Rights Reserved.

ARTICLE BY John R. Merinar, Jr. of Steptoe & Johnson PLLC
For more articles on the NLRB, visit the NLR Labor & Employment section.

A Biden Board at the NLRB: What to Expect and When

This past Labor Day, President-elect Joe Biden told a group of union supporters that he would be “the strongest labor president you have ever had.” Just how true those words will be hinges on what party controls the Senate after the dust settles on this election season.

As part of his labor goals, Biden has championed the PRO Act, a substantive and drastically pro-union rewrite of the 85-year-old National Labor Relations Act that was passed by the House in early 2020. The PRO Act would codify the ambush election rule and micro-unit policy, neuter employers’ ability to mount counter-campaigns to union organizing attempts, and weaken right-to-work laws that protect employee free choice. The ambitious legislation would also permit the NLRB to issue heavy monetary penalties on employers for violating the NLRA and would more strictly require bargaining after an initial certification of a new union.

The legislation would be destructive to companies, but it seems unlikely to become law in today’s political landscape. Indeed, a less ambitious pro-labor bill, the Employee Free Choice Act, failed to pass a Democrat-controlled Congress in 2009.

But even if the PRO Act does not come to fruition, one thing is clear: there will be changes. Employers have benefitted greatly from the pro-employer NLRB over the past four years. We have seen a flurry of positive changes including wins on issues like joint employers, micro-units, abolishing the ambush election rule, and making it easier for employers to make unilateral changes in the workplace.

When and how change might occur under President-elect Biden will largely depend on when he is able to gain control of the NLRB.

The NLRB is currently composed of three Republican members and one Democrat, with one vacant seat. Assuming President-elect Biden is able to fill the vacant seat, his first opportunity to flip control of the Board in his favor will come in August 2021, when Trump appointee Bill Emanuel’s seat expires. NLRB General Counsel Peter Robb’s term expires in November 2021. Even then, control depends on the Senate confirming both the new general counsel and Board member positions.

In short, we could expect there to be pro-union changes at the NLRB beginning in the fall or winter of 2021. This timeline is similar to the beginning of the Trump administration, when we saw the biggest flurry of pro-employer rulings come in December 2017 after Republicans gained control of the NLRB. Once Biden gains control, we might see a strategy similar to that employed by the Trump and Obama Boards. A mix of precedent-overturning NLRB decisions and rulemaking could be in store for employers.

© 2020 BARNES & THORNBURG LLP
For more articles on the NLRB, visit the National Law Review Labor & Employment section.

Black Lives Matter, Racial Unrest and Corporate Culture – How Do Employers Respond?

As the daily news continues to show protests and calls for justice in response to the death of George Floyd and others at the hands of police officers, there is, unsurprisingly, a desire from employees to hear from their employers regarding the ongoing violence and racial unrest in our communities and across the country. Many employers recognized the gravity of the racial unrest by celebrating, for the first time, Juneteenth on June 19, 2020, a holiday celebrating the emancipation of slaves. But is that enough? How do employers respond?

As a practical matter, employers must be aware of the application of Constitutional free speech protections, employee rights under the National Labor Relations Act and state laws that may apply to expressive employee conduct, as detailed in our previous post.

Beyond that, employers can choose the level of their response and engagement, or choose to do nothing at all—there is no right or wrong answer or a “one size fits all” solution. The most common reaction from employers is to acknowledge the unrest and issue a statement of support. Many employers have also chosen to make a public announcement expressing solidarity and support of the Black Lives Matter movement.

Though these responses are important, they fail to accomplish the more ambitious goal of many employers, which is to articulate and implement a strategy for lasting and real change within their own workplace and beyond. This action requires substantial reflection, consideration, time and effort.

So, for employers looking to do more, where do they start?

  • Leadership: Good leaders serve as good models. Leaders can lead by example and provide a safe workplace where all employees feel respected and included. As it pertains to the current environment, leaders can be open about their own lack of knowledge and share their growth and experiences with their workforce.
  • Anti-Discrimination Policies: Employers can review their policies regarding equal employment opportunity and workplace discrimination. Though most employers articulate such policies as a matter of course, it is important to reinforce these policies and remind employees of what is expected of them and to reassure employees who may be feeling vulnerable at this time.
  • Diversity Initiatives: Employers can focus on building diversity within their ranks by ensuring that recruitment, hiring, retention and advancement are truly objective and based on merit. Employers can also consider implementing a version of the National Football League’s recently-revised “Rooney Rule,” wherein at least two non-white candidates must be considered for open head coaching positions, and one non-white candidate must be considered for coordinator, senior football operations or general manager positions. Forming a diversity committee or task force is another way to ensure that minority members of your workforce are being heard and understood by management.
  • Awareness: Employers can educate their employees about prejudice and racism in its various forms; this can consist of formal training or open forums in which employees can communicate with one another and, importantly, with their co-workers of color. Employers can also make educational materials available for employees.
  • Community Involvement: Employers can publicly support the movement in the form of donations or activism. Doing so can create a sense of pride among your workforce, and it can also help in attracting future hires that share the principles of your workplace.

© Copyright 2020 Squire Patton Boggs (US) LLP

ARTICLE BY Anne Marie Schloemer at Squire Patton Boggs (US) LLP.

For more on employer-employee conduct see the National Law Review Labor & Employment law section.

NLRB Approves Company’s Baseball Cap Rule

Under Section 8(a)(1) of the National Labor Relations Act (“NLRA”), employers are permitted to maintain uniform and dress code policies in the workplace, so long as such policies do not prohibit employees from wearing union insignia, absent special circumstances, such as health and safety concerns. While seemingly straightforward, application of this rule can be quite meticulous in practice. A recent National Labor Relations Board (the “Board”) case, World Color (USA) Corp., a Wholly-Owned Subsidiary of Quad Graphics Inc., 369 NLRB No. 104 (June 12, 2020), provides guidance as to when an employer can restrict apparel logos at work.

When Can You Limit Apparel to Company Logos?

World Color (USA) Corp., is a Wisconsin company that maintains a facility in Nevada, where it prints commercial inserts for newspapers.

In early 2011, World Color distributed a set of mandatory guidelines to its employees containing a uniform and dress code policy requiring that all employees wear authorized company uniforms as a condition of employment, and to dress and groom professionally at all times. The guidelines permitted employees to accessorize the uniform, but required the accessorizing to be “in good taste and in accordance with all safety rules.” The guidelines further required that if “hair… could potentially get caught in [production equipment], it must be secured… with a hairnet or other means. Baseball caps are prohibited except for [company] baseball caps worn with the bill facing forward.” World Color further prohibited wearing buttons and pins on the production floor as a safety hazard.

After the union filed a charge, the Administrative Law Judge (ALJ) found that the policy was unlawful because it prohibited employees from wearing baseball caps with union logos and from displaying union insignia on hats.

After several appeals, however, the Board found that the policy did not prohibit employees from engaging in the protected activity of wearing caps bearing union insignia. Rather, the cap policy merely required employees to wear a company cap to align with the overall company uniform. The Board noted that employees were not prohibited from wearing union insignia on the company cap as long as they were “in good taste and in accordance with all safety rules”. As such, the Board found that the uniform policy was lawful because it permitted employees to wear union insignias on company caps as long as they did not pose a safety risk.

What This Decision Means for Employers

Uniform and dress code rules are just one of a great number of issues that employers face in ensuring that their workplace policies comply with the mandates of the NLRA. The NLRA applies to almost all private sector employers nationwide, whether their employees are currently represented by a union or not. Employers should be aware of the level of scrutiny that can be placed on their workplace policies — by unions, by ALJs, and by the Board. Employers should be on the look-out for uniform and dress code provisions that:

  • Specifically prohibit wearing union insignia;

  • Broadly prohibit wearing all non-company insignia, even without reference to unions;

  • Require company or supervisor approval or authorization of union insignia;

  • Unreasonably limit the size and shape of union insignia on uniforms;

  • Prohibit union insignia without documented specific and legitimate safety reasons.

We recommend that employers consult with experienced labor counsel to revise and review their workplace policies to fully comply with all state and federal requirements, including the NLRA. This way, employers will be in the best position to protect the right to efficiently and effectively maintain their businesses. Moreover, employers should be aware that even seemingly minor violations of the NLRA may compromise the ability to assert their rights in other contexts, such as possible threats of union organizing.

©2020 von Briesen & Roper, s.c

For more on dress code policies, see the National Law Review Labor and Employment law section.

NLRB: Federal Court in DC Issues Promised Opinion on Election Regulations

As indicated in our previous blog on this topic, on May 30, 2020, the U.S. District Court for the District of Columbia issued a two page order invalidating five elements of the NLRB’s 2019 election regulation, based on Count One of the plaintiff’s complaint.  On June 7, the court issued its promised memorandum opinion further explaining that order.

The opinion makes three key points.

First, the Court noted that under the Administrative Procedure Act, the norm is for notice and comment rule making.  An exception in the APA, however, permits agencies to forego notice and comment requirements when promulgating “rules of agency organization, procedure, or practice.”  5 U.S.C. Sec. 553(b)(A). The NLRB had relied on this exception to promulgate the election rule without notice and comment. As the Court stated, “The nub of the instant dispute is the NLRB’s valiant effort to shoehorn five parts of its 2019 Election Rule into this narrow classification.” Slip op. at 28.

Following a thorough discussion of the five parts of the rule it had held invalid in its May 30 order, the Court concluded: “[T]he challenged provisions carry many of the indicia of substantive rules — i.e., they grant rights and impose obligations; they produce ‘significant effects on private interests’; and they ‘foreclose alternative courses of action’ or ‘conclusively bind the . . .      affected private parties.’ . . . Therefore, this Court finds the NLRB’s promulgation of these particular [five] rules without engaging in notice-and-comment rulemaking violated the APA.” Slip op. at 42-42 (citation omitted).

Second, the Court found that the five invalidated parts of the election regulation were severable from the remainder of the election rule. The Court rejected AFL-CIO’s argument that the election regulation should be invalidated in its entirety. Slip op. at 43-51. The Court stated that its severability ruling was not prejudical to plaintiffs, however, who are “always free to press an independent basis for setting aside the remainder of the rule and ask the court to do so . . . .” Slip op. at 48 (emphasis in original).

Indeed, the plaintiff’s complaint had three additional counts alleging that the election rule was arbitrary and capricious in whole and in part, and was contrary the National Labor Relations Act.  In a footnote, the Court observed: “[T]he AFL-CIO might well have argued that . . . the Court should . . . proceed to reach the merits of its alternative claims . . . . But for whatever reason, the AFL-CIO maintained that this Court need not reach its other claims, apparently assuming that the Court would agree with its severability analysis.” Slip op. at 48, n. 13.

Third, Court made it clear that the NLRB would have very broad discretion in dealing with the Court’s remand of the remaining rules for consideration in light of the Court’s opinion and order.   “[T]he agency decides what happens next when all or part of a challenged action has been invalidated.”  Slip op. at 46 (emphasis in original).

In a footnote, the Court held: “Thus, no matter how illogical it might seem to this Court for the NLRB to proceed to enforce the remaining portions of the 2019 Election Rule, it is up to the agency to determine which otherwise lawful policy proscriptions it wishes to adopt and enforce, and a simple remand of the matter gives the agency the best opportunity to make that determination in the first instance.”  Slip op. at 47, n. 12.

Following the Court’s May 30 order, the NLRB had swiftly acted to implement the remaining election regulations.  The AFL-CIO also filed a motion for clarification of the May 30 order seeking, among other things, a ruling on the swiftness of the NLRB’s action.  The Court signaled its inclination to deny that motion in its memorandum opinion, stating that “no matter how swiftly the agency undertakes to make that decision  . . . [courts] ‘do not, and cannot, police agency deliberations as a general matter . . . .’ Thus, the AFL-CIO’s recent motion . . . raises an issue that is plainly non-justiciable.”  Slip op. at 48, n. 13.

While the Court’s ruling, and the parties’ respective reactions to it, paint a bit of a muddy picture on what comes next, it is clear that there are still other shoes to drop in this case.  The Board has indicated its intent to appeal the court’s decision invalidating the five elements of the election rule.  The AFL-CIO may re-assert the counts of its complaint not addressed in the Court’s decision, or make additional arguments based on the NLRB’s actions on remand, as further grounds for invalidating the entire election rule.  Or, it may file its own appeal of the Court’s decision seeking appellate review of the Court’s decision not to deal with the other counts in the complaint.

For now, the NLRB will conduct elections in accordance with the undisturbed portions of the election rules, but how they may be impacted by further court litigation is unknown.  It therefore will be very important for employers involved in representation cases to stay up to speed on developments in this dynamic arena.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.

For more NLRB decisions, see the National Law Review Labor & Employment law section.

NLRB Ends Suspension of Union Representation Elections

Amid the ever-increasing impact of the COVID-19 crisis across the country, the National Labor Relations Board (“NLRB” or “Board”) announced on Wednesday that the two-week freeze on representation elections currently in effect would end on April 3, 2020.  In the weeks leading up to the nationwide postponement of elections, which included both manual and mail ballot elections, the Board implemented an agency-wide telework policy and announced the closure of several Regional Offices.  According to the Board’s website, at least six Regional Offices remained closed as of March 30, 2020, with another 14 Regional and Subregional Offices closed to the public.

In the press release announcing the moratorium on elections, the Board stated that the two-week suspension was “necessary to ensure the health and safety of our employees, as well as those members of the public who are involved in the election process.”

Concerning the resumption of elections, NLRB Chairman John Ring stated on Wednesday that the Board’s “General Counsel now has advised that appropriate measures are available to permit elections to resume in a safe and effective manner, which will be determined by Regional Directors.” Neither that announcement nor any other documents made public by the NLRB to date have explained those measures, though most observers anticipate that the NLRB will move to a greater if not exclusive reliance on employees voting by mail ballots.

In a letter to Chairman Ring the day before the NRLB announced that it would resume elections, Representative Bobby Scott (D-VA) urged the Board “to permit Regional Directors to direct elections to take place as soon as practicable if, in their discretion, the elections can safely be done, especially when considering the possibility of mail ballots.”  The announcement the Board issued the following day, however, does not require that forthcoming elections be conducted by mail ballot only, or provide any specific parameters for conducting elections as the effects of the COVID-19 crisis continue to mount.

As a practical matter, mail ballot elections appear to be the most likely manner of conducting elections in the immediate future given the growing restrictions implemented by the Federal, state, and local governments to curb the spread of COVID-19 cases.  Informally, some NLRB Regional Offices have indicated that they are preparing guidance regarding procedures for the resumption of elections, and will release such guidance once finalized.  Other Regional Offices have indicated that they are not presently scheduling any elections, even as the two-week suspension of elections concludes.   At least one Regional office has begun informing parties that the ballots will be counted via Skype conferences and not in person following the voting by mail.

Given the differing routes that Regional Offices currently appear to be taking, as well as the varying impact of the COVID-19 crisis in different areas of the country, it appears that Regional Offices will evaluate local conditions and resume elections based on pertinent circumstances.

Employers and advocates should remain up to date on the legal restrictions applicable to the areas in which workforces are located, as well as any guidance issued by Regional Offices, and be prepared to navigate the Board’s representation procedures, implement communication strategies, and monitor the election process without the in-person interactions normally accompanying election proceedings.

©2020 Epstein Becker & Green, P.C. All rights reserved.

For more from the NLRB, see the National Law Review Employment Law section.

Protected Activity or Illegal Harassment? Clarification May Be Coming.

It is a difficult balance for employers between respecting the rights to speech and other protected activity of their employees and avoiding a hostile workplace created by such speech. All too often employees may express views that are protected, but in ways that may be intimidating to their co-workers and create a hostile work environment. This tricky balance may soon gain much needed clarification. The D.C. Circuit Court of appeals, in issuing a decision in the case of Constellium Rolled Products Ravenswood, LLC v. NLRB, 945 F.3d 546 (D.C.Cir. 2019) set up the possibility.

The case involved an employee who was notified of his termination after writing “whore board” on the employer’s overtime signup sheet by way of protest of the employer’s newly adopted overtime policy. The administrative judge had found that the speech was protected under the National Labor Relations Act Section 8(a)(1) and that it was an unfair trade practice by illegally restraining the employee’s ability to participate in union activity under Section 8(a)(3).

While the D.C. Circuit agreed with the administrative law judge and the NLRB that the employee had been protected under the Act, it faulted the NLRB’s analysis for failing to take into consideration the employer’s “obligations under federal and state anti-discrimination laws to maintain a harassment-free environment.” 945 F.3d 546, 551.  The court then remanded the case to the NLRB to consider the balance between the employee’s protected activities and the employer’s responsibility to provide a harassment-free environment. This will potentially give the NLRB a chance to establish a framework in which to balance these types of cases.

The employer, in its arguments set forth two different proposed tests that could have found the employee’s speech to be unprotected due to the vulgar and offensive manner in which it was done. The company put forth a totality of the circumstances test, which would take into account the company’s anti-harassment policies in effect at the time. The employer alternatively proposed that the NLRB adopt the similar four-part test set forth in Atlantic Steel Co., 245 NLRB No. 107 (1979) that would take into consideration: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

The test that is chosen will have a substantial effect on how employers can go about protecting their employees from harassment and intimidation while not running afoul of the Act. Great attention should be paid to the result.

© 2020 by Raymond Law Group LLC.

For more on NLRA Protected Speech, see the National Law Review Labor & Employment law section.