Tag: NLRB

National Labor Relations Board Tightens Standard for Joint Employer Status

A business is a joint employer of another employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, according to a recently unveiled and long-awaited final rule from the National Labor Relations Board (NLRB). This means that a business must exercise “substantial direct and immediate control” over such issues as wages, benefits, hours of work, hiring, discharge, discipline, supervision and work direction. The rule, which takes effect on April 27, 2020, tightens the legal test the NLRB uses to determine whether workers are jointly employed by affiliate businesses, including franchisors and franchisees.

Specifically, the new rule substantially tightens the standard for joint employer status articulated by the NLRB in its 2015 Browning-Ferris decision. In that decision, the NLRB departed from a half-century’s worth of precedent in determining that it could consider employers who exercised indirect control over the terms and conditions of another employer’s employees, or who reserved the right to exercise such control, as joint employers. The new rule expressly rejects this standard, making clear that neither “indirect” control nor a reservation of right to control terms and conditions of employment is sufficient, on its own, to establish joint employer status. The new rule returns the NLRB to its pre-Browning-Ferris jurisprudence, which required actual and direct control. The new rule also notes that “sporadic, isolated, or de minimus” direct control will not be enough to warrant a finding of joint employment.

The issue of joint employer status is significant for businesses because workers and the unions that represent them can collectively bargain with joint employers and hold them jointly liable for unfair labor practices, which are violations of federal labor law. The Browning-Ferris decision, with its broader test for joint employer status, engulfed more contractors and franchisors into costly and time-consuming labor disputes and contract negotiations. By rejecting the Browning-Ferris standard, the NLRB’s new narrower test brings certainty to this area of law by ensuring that labor disputes and contract bargaining only involve those contractors and/or franchisors that exercise direct control over the employees of another employer. NLRB Chairman Jon Ring made this very point when he explained that “employers will now have certainty in structuring their business relationships, [and] employees will have a better understanding of their employment circumstances.”

This new rule is particularly important to franchisors and comes on the heels of the Department of Labor’s (DOL) new joint-employer rule, which also affected franchisors. Since the Browning-Ferris decision, there has been uncertainty about how much “control” is too much. This new NLRB rule provides welcomed clarity for franchisors, and will allow franchisors to provide more operational support and guidance to franchisees, which should result in franchisees having the opportunity to run their small businesses in a manner that will make a difference in their communities. Franchisors can protect their brands through appropriate brand standards and require franchisees to meet those standards without the heightened risk of being deemed a joint employer of their franchisees’ employees.

However, franchisors must be mindful of various state joint employer regulations, which may be broader in scope than the new rule, as well as plaintiffs’ lawyers asserting claims based on control theories. Franchisors should continue to review their business models and business practices (training, technology and field support) to ensure they are not involved in the exercise of control over a franchisee’s employees. Franchisors also should appropriately address these issues in their franchise agreements and operations manuals.

In sum, the NLRB’s new joint employer test is a win for employers, returning the NLRB’s joint-employer status jurisprudence to the narrower direct and actual control standard. Under this new test, contractors and franchisors who do not want to become joint employers should be careful to avoid exercising direct control over another employer’s employees’ terms and conditions of employment, including wages and benefits. The new rule’s clarity allows businesses to know where they stand as a potential joint employer and to prepare accordingly.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.

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

New NLRB Rule Defining Joint-Employer Status to Take Effect

The National Labor Relations Board has announced the issuance of its final rule governing joint-employer status. The new rule, which was first proposed in September 2018 and has been the subject of extensive public comment, will become effective April 27, 2020.

The critical elements for finding a joint-employer relationship under the new rule is the possession and the exercise of substantial direct and immediate control over the terms and conditions of employment of those employed by another employer.  The essence of the new rule is described in the Board’s February 25, 2020 press release:

To be a joint employer under the final rule, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees. The final rule defines key terms, including what are considered “essential terms and conditions of employment,” and what does, and what does not, constitute “direct and immediate control” as to each of these essential employment terms. The final rule also defines what constitutes “substantial” direct and immediate control and makes clear that control exercised on a sporadic, isolated, or de minimis basis is not “substantial.”

Evidence of indirect and/or contractually reserved control over essential employment terms may be a consideration for finding joint-employer status under the final rule, but it cannot give rise to such status without substantial direct and immediate control. Importantly, the final rule also makes clear that the routine elements of an arm’s-length contract cannot turn a contractor into a joint employer.

The new rule marks a return to a standard similar to that which the Board followed from 1984 until 2015.  In 2015, in Browning-Ferris Industries, the Board adopted a much more liberal test under which a finding that the putative joint employer possessed indirect influence and the ability (including through a reserved contractual right) to influence terms and conditions, regardless of whether the putative joint employer actually exercised such influence or control, could result in it being held to be a joint-employer of a second employer’s employee.

As a practical matter, the standard under the Board’s new rule should make it much more difficult to establish that a company is a joint-employer of a supplier, contractor, franchisee, or other company’s employees. The new rule will mean that a party claiming joint-employer status to exist will need to demonstrate with evidence that the putative joint-employer doesn’t just have a theoretical right to influence the other employer’s employees’ terms and conditions of employment, but that it has actually exercised that right in a substantial, direct and immediate manner.

This new rule is likely to make it much more difficult for unions to successfully claim that franchisors are joint-employers with their franchisees, and that companies are joint-employers of personnel employed by their contractors and contract suppliers of labor, such as leasing and temporary agencies.

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

For more on the Joint-Employer Rule see the National Law Review Labor & Employment Law section.

Employee Advocacy for Nonemployee, Unpaid Interns Is Not Protected by National Labor Relations Act

Unpaid interns are not “employees” as defined by the National Labor Relations Act (NLRA), and employee advocacy on their behalf is not protected concerted activity under Section 7 of the NLRA, the National Labor Relations Board (NLRB) has ruled. Amnesty International of the USA, Inc., 368 NLRB No. 112 (Nov. 12, 2019).

The NLRB also concluded the employer’s expression of frustration and disappointment with its employees’ actions on behalf of the interns was not an unlawful implied threat.

Background

Amnesty International is a nonprofit advocacy organization that typically hires 15 unpaid interns to volunteer each academic semester.

In February 2018, a group of interns, assisted by an employee, circulated a petition requesting the organization pay them for their volunteer work. Nearly all the organization’s employees signed the petition. At the same time, the organization’s executive team was considering a paid intern program with only three interns.

On April 2, 2018, unaware of the unpaid intern’s petition, the Executive Director of the organization shared the organization’s plans for a paid internship program during an employee meeting. The unpaid interns sent their petition to the Executive Director the next day.

On April 9, 2018, the Executive Director held separate meetings with the current interns and the employees who signed the petition to announce plans to implement the paid internships that fall. The employees reacted negatively and expressed concern about the reduced number of interns. The Executive Director stated that she was disappointed the employees did not take advantage of the organization’s open-door policy to discuss the matter with management before using a petition. The Executive Director also stated that she viewed the petition as adversarial and felt it threatened litigation.

On May 9, 2018, the employee who assisted the unpaid interns with their petition met privately with the Executive Director. The employee recorded the conversation. The Executive Director stated she was “very embarrassed” that her employees felt unable to approach her about the issue and “disappointed that she did not ‘have the kind of relationship with staff’ that she thought she had.” The Executive Director said that it would have been “really helpful” to know about the intern’s interest in paid internships in advance and that the employee could have told the interns to “give me a heads-up to let me know it’s coming.” The Executive Director indicated that a petition “sets off a more adversarial relationship” and is not effective when the demand could “be met without applying that pressure.” She further stated, “you could try talking to us before you do another petition.”

Administrative Law Judge Decision

After a trial, ALJ Michael A. Rosas held that the employees had engaged in protected activity under Section 7 of the NLRA by joining the interns’ petition. He also determined the organization violated Section 8(a)(1) of the NLRA by: (1) instructing employees to make complaints orally before making them in writing; (2) threatening unspecified reprisals because of the employees’ protected concerted activity; (3) equating protected concerted activity with disloyalty; and (4) requesting employees to report to management other employees who are engaging in protected concerted activity. He dismissed the allegation that the Executive Director’s statements “impliedly threatened to increase employees’ workloads as a result of the petition.”

NLRB Decision

The NLRB reversed the ALJ’s conclusions and dismissed the complaint.

Holding that “[a]ctivity advocating only for nonemployees is not for ‘other mutual aid or protection’ within the meaning of Section 7,” the NLRB reasoned that the unpaid interns were not employees because they did not “receive or anticipate any economic compensation from [Amnesty International].”

The NLRB also held that the Executive Director’s statements did not coerce the employees. It concluded the Executive Director’s statements fell within Section 8(c) of the NLRA, which permits employers to express views, arguments, or opinions that are not accompanied by coercion (e.g., threats or promises of benefits). Considering the timing of the petition and the employees’ reaction, the NLRB determined that the Executive Director’s “opinions about how to handle petitions in the future to be, at most, suggestions, rather than commands or even direct requests.” Her statements “clearly expressed her frustration that, as a result of the lack of communication, management’s attempt to provide a positive response to the … petition had instead resulted in a backlash from employees.” However, the comments did not rise to the level of conveying anger, threaten reprisal, or accuse the employees of disloyalty, the NLRB ruled. Therefore, it concluded they did not violate Section 8(a)(1) of the NLRA.

***

The NLRB has been signaling a hesitancy to impose obligations on employers outside the traditional employment context. It has proposed exempting paid undergraduate and graduate students from the NLRA, for example. Over the last several years, as employers are forced by the low employment rate to increase their use of nonemployees, unions have increased their efforts to expand the NLRA’s reach by organizing non-traditional workers, including temporary campaign workers and graduate students.

 

Jackson Lewis P.C. © 2019
Read more about NLRB rulings on the National Law Review Labor & Employment law page.

Can You Spy on Your Employees’ Private Facebook Group?

For years, companies have encountered issues stemming from employee communications on social media platforms. When such communications take place in private groups not accessible to anyone except approved members, though, it can be difficult for an employer to know what actually is being said. But can a company try to get intel on what’s being communicated in such forums? A recent National Labor Relations Board (NLRB) case shows that, depending on the circumstances, such actions may violate labor law.

At issue in the case was a company that was facing unionizing efforts by its employees. Some employees of the company were members of a private Facebook group and posted comments in the group about potentially forming a union. Management became aware of this activity and repeatedly asked one of its employees who had access to the group to provide management with reports about the comments. The NLRB found this conduct to be unlawful and held: “It is well-settled that an employee commits unlawful surveillance if it acts in a way that is out of the ordinary in order to observe union activity.”

This case provides another reminder that specific rules come into play when employees are considering forming a union. Generally, companies cannot:

  • Threaten employees based on their union activity
  • Interrogate workers about their union activity, sentiments, etc.
  • Make promises to employees to induce them to forgo joining a union
  • Engage in surveillance (i.e., spying) on workers’ union organizing efforts

The employer’s “spying” in this instance ran afoul of these parameters, which can have costly consequences, such as overturned discipline and backpay awards.

© 2019 BARNES & THORNBURG LLP

For more on employees’ social media use, see the National Law Review Labor & Employment law page.

Bite Your Tongue: NLRB Rules that Produce Company’s Media, Confidentiality Policies are Lawful

The NLRB under the current administration continues to issue decisions that factor in legitimate business considerations of employers when evaluating rules that are alleged to restrict employee protections under the NLRA.  One such recently issued decision, LA Specialty Produce Company, 368 NLRB No. 93 (October 10, 2019), may have particular significance because it addresses an important issue — restrictions on communications responsive to inquiries from the media.

The restriction at issue in the LA Specialty case provided as follows:

“Employees approached for interview and/or comments by the news media, cannot provide them with any information. Our President, Michael Glick, is the only person authorized and designated to comment on Company policies or any event that may affect our organization.”

The Board’s general counsel issued a complaint alleging that the rule in its entirety violated the NLRA because it purportedly chilled employees from exercising their section 7 rights under the NLRA, including the right to discuss work issues publicly when asked to comment by the press.  The administrative law judge found the rule to be overly broad, and therefore unlawful, because on its face it could be construed to cover NLRA-protected activities; however, the Board disagreed with this reading of the rule.  While the Board recognized that the first sentence of the rule, standing alone, might suggest that employees may never speak to the news media when approached for comment, it concluded that an objectively reasonable employee would understand that the second sentence qualified the first sentence by explaining that only the company president was authorized and designated to comment on company matters. Thus, read as a whole, a reasonable employee would understand that he or she is only precluded from speaking on behalf of the employer when approached for comment.

The Board also designated this rule as a “category 1” rule under the principles announced by the Board in Boeing Co., a Board decision that was issued in December of 2017. “Category 1” rules include rules the Board designates as lawful, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.  See our client alert here.  Since there is no Section 7 right to speak to the media on behalf of the employer, the Board concluded that the employer’s media contact restriction, when reasonably interpreted, would not potentially interfere with the exercise of Section 7 rights.

© 2019 Mitchell Silberberg & Knupp LLP

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

Legal Alert: Not So Fast: National Labor Relations Board Rejects Boeing S.C. Micro Unit

On September 9, 2019, the National Labor Relations Board (the “Board”) clarified its test for unionizing “micro units” of employees within larger workforces, and prevented the International Association of Machinists from representing a small group of Boeing Co. technicians at a plant in South Carolina. The Boeing Company, 368 NLRB No. 67 (2019). In a three-to-one vote, the Board said a proposed bargaining unit consisting of about 175 flight-readiness technicians at Boeing’s Charleston Final Assembly operation does not meet federal standards for appropriate units, because the workers are not distinct from the site’s larger workforce of approximately 2,700 maintenance and production workers.

The International Association of Machinists won an election in May of 2018 to become the bargaining representative of this smaller unit of employees. This election followed an earlier election where a large unit of production and maintenance workers rejected the Union in a 2,087 – 731 vote. After the May 2018 election, the Company appealed the certification of the smaller unit of Boeing employees, arguing that the NLRB Regional Director had improperly approved the small unit of flight-readiness technicians.

In Boeing, the Board indicated that the standard it set forth for unionizing smaller bargaining units of employees in the PCC Structurals decision from December of 2017 was being misapplied. The standard for unionizing micro units of employees, as set forth in Boeing, requires a three-step legal analysis to determine the appropriateness of the proposed bargaining unit. First, the proposed unit must share an internal community of interest. Second, the interests of those within the proposed unit and the shared and distinct interests of those excluded from that unit must be comparatively analyzed and weighed. Third, consideration must be given to the Board’s decisions on appropriate units in the particular industry involved.

Moving forward, unions will have to demonstrate a sufficiently distinct community of interest among the proposed bargaining unit as compared to excluded employees. And, excluded employees’ distinct interests will have to outweigh the similarity of interests that excluded employees share with members of the proposed bargaining unit. This decision strikes a strong blow against unions’ efforts to organize and represent smaller bargaining units.

Copyright © 2019 Ryley Carlock & Applewhite. A Professional Association. All Rights Reserved.

For more NLRB decision-making, see the Labor & Employment law page on the National Law Review.

Changing Course: “Contract Coverage” is the New Standard for Unilateral Action

The National Labor Relations Board (NLRB) departed from precedent last week when it addressed whether an employer’s unilateral action under a collective bargaining agreement was lawful.

The case in question – M.V. Transportation, Inc. and Amalgamated Transit Union Local #1637, AFL–CIO, CLC., Case 28– CA–173726 – concerned what standard the Board should apply to determine whether a collective bargaining agreement grants an employer the right to take certain unilateral actions, without further bargaining with the union. Under prior case law, the Board had applied the “clear and unmistakable waiver” standard, under which the employer would be found to have violated the Act unless a provision of the collective bargaining agreement specifically refers to the type of employer decision at issue, or mentions the kind of factual situation that the case presents.

In M.V. Transportation, the Board noted that several appeals courts have rejected the “clear and unmistakable waiver” standard in favor of a “contract coverage” standard, including, importantly, the United States Court of Appeals for the District of Columbia Circuit, which, by statute, has full jurisdiction to review NLRB decisions.  Under the “contract coverage” standard, the decision-maker must examine the plain language of the collective bargaining agreement to determine whether the action taken by an employer was within the “compass or scope of contractual language granting the employer the right to act unilaterally. The Board cited the example of a collective bargaining agreement that broadly grants the employer the right to implement new rules and policies and to revise existing ones, noting that under such circumstances, an employer would not violate the law by unilaterally implementing new attendance or safety rules or by revising existing disciplinary or off-duty-access policies.

While the Board did choose to adopt the “contract coverage” standard, it did not totally abandon the “waiver” concept. It warned that if an agreement does not clearly cover the employer’s disputed act, and that act has materially, substantially and significantly changed a term or condition of employment constituting a mandatory subject of bargaining, the employer will have violated the law unless it demonstrates that the union clearly and unmistakably waived its right to bargain over the change, or that its unilateral action was privileged for some other reason.

In a move that is becoming more common in NLRB cases, the Board also decided to apply the new standard retroactively in all pending unilateral change cases where the determination of whether the employer violated the law turned on whether contractual language granted the employer the right to make the change in question.

Under the new standard, employers should take care in collective bargaining to make sure that the plain language of the collective bargaining agreement supports any unilateral action that the employer wants to reserve the right to take. The language should be clearly written and explicit in its grant of authority, and its meaning should be clear when applying ordinary principles of contract interpretation. By doing that, the employer can assure that its unilateral action does not violate the law or the agreement.

Copyright © 2019 Godfrey & Kahn S.C.

California Arbitration Roundup: Employers Are 3-1 For Favorable Arbitration Rulings

California employers received mostly good news this past month on the arbitration front, with a trio of pro-employer arbitration-related rulings.  The California Supreme Court’s recent ruling invalidating an employer’s arbitration agreement (discussed below) is a notable exception.

California Supreme Court Invalidates Employer’s Arbitration Agreement As Unconscionable.

In OTO LLC v. Ken Kho, the California Supreme Court ruled that an Oakland Toyota dealership’s arbitration agreement with a former employee was unenforceable and was so unfair and one-sided that it was procedurally and substantively unconscionable.  “Arbitration is premised on the parties’ mutual consent, not coercion, and the manner of the agreement’s imposition here raises serious concerns on that score,” the majority opinion said.

In 2013, Ken Kho, then an employee of the dealership, One Toyota, was asked to sign several documents, including an arbitration agreement.  Kho signed it, and was later terminated.

The California Supreme Court acknowledged that California and federal laws strongly favor arbitration. However, the Court considered the following factors in determining that One Toyota’s arbitration agreement was unconscionable:

  • The arbitration agreement purported to waive Kho’s right to file a wage claim with the Labor Commissioner and to have a “Berman” hearing before the Labor Commissioner (while not dispositive, the Court noted that this remains a significant factor in considering unconscionability of employee arbitration agreements);

  • The agreement was presented to Kho in his workspace, along with other employment-related documents;

  • Neither its contents nor its significance was explained;

  • Kho was required to sign the agreement to keep the job he had held for three years;

  • Because One Toyota used a piece-rate compensation system, any time Kho spent reviewing the agreement would have reduced his pay;

  • A low-level employee (a porter) presented the agreement to Kho, “creating the impression that no request for an explanation was expected and any such request would be unavailing”;

  • By having the porter wait for the documents, One Toyota conveyed an expectation that Kho sign them immediately, without examination or consultation with counsel;

  • There was no indication that the porter had the knowledge or authority to explain the terms of the agreement;

  • Kho was not given a copy of the agreement he had signed;

  • The agreement was written in an extremely small font in the form of a “single dense paragraph” of 51 lines, and the text was “visually impenetrable” and “challenge[d] the limits of legibility”;

  • The sentences were complex, filled with statutory references and legal jargon;

  • Kho was not offered a version to read in his native language (while the Court noted this factor, it did not consider it because it did not know Kho’s English proficiency);

  • The arbitration agreement did not make clear One Toyota’s obligation to pay arbitration-related costs (and rather cited to statutory provisions and referenced legal precedent; the Court noted “It would have been nearly impossible to understand the contract’s meaning without legal training and access to the many statutes it references. Kho had neither.”);

  • One Toyota’s agreement did not mention how to bring a dispute to arbitration, nor did it suggest where that information might be found (e.g., by citing to a commercial arbitration provider such as JAMS or AAA); and

  • One Toyota’s arbitration process was complicated to navigate and would likely require an attorney, making it cost-prohibitive for Kho.

The Court concluded that “[w]e have not said no arbitration could provide an appropriate forum for resolution of Kho’s wage claim, but only that this particular arbitral process, forced upon Kho under especially oppressive circumstances and erecting new barriers to the vindication of his rights, is unconscionable.”

Employers would thus be well-advised to revisit their employee arbitration agreements to ensure that they do not contain any of the defects discussed by the Supreme Court in the Kho case.

NLRB Upholds Employer Conduct Related to Mandatory Arbitration Agreements

In Cordúa Restaurants, Inc., 368 NLRB No. 43 (2019), the National Labor Relations Board (NLRB) addressed the lawfulness of employer conduct surrounding mandatory arbitration agreements for the first time since the U.S. Supreme Court’s 2018 decision in Epic Systems v. Lewis, where the Court held that mandatory arbitration agreements do not violate the National Labor Relations Act (NLRA) (see here).  In Cordua Restaurants, the NLRB ruled in part that employers are not prohibited under the NLRA from: (1) informing employees that failing or refusing to sign a mandatory arbitration agreement will result in their discharge; and (2) promulgating mandatory arbitration agreements in response to employees opting in to a collective action under the Fair Labor Standards Act or state wage-and-hour laws.

The NLRB’s decision in Cordua Restaurants is a natural extension of the Supreme Court’s analysis and ruling in Epic Systems.  There, the Court held that Congress, when passing the Federal Arbitration Act (FAA) in 1925, instructed courts to enforce arbitration agreements as written.  Since the passage of the FAA predates the NLRA by ten years, and since the NLRA says nothing about overruling the FAA, the NLRB could not, under the guise of enforcing the NLRA, rule that an arbitration agreement that otherwise is lawful on its face violates the NLRA.  This decision by the NLRB is further evidence of that agency’s retreat from past policies advanced by the NLRB in the prior administration and likely will not be overruled.

California Court of Appeals Compels Employee to Arbitrate Claims Even Though He Filed Suit Before Signing Arbitration Agreement

In Quiroz Franco v. Greystone Ridge Condominium, the California Court of Appeals compelled an employee to arbitrate his claims against his employer even though the employee filed his lawsuit two days before he signed an arbitration agreement.  The Court held that the arbitration agreement was clear in that it required arbitration of any claims and that it did not contain any restriction based on when a claim was filed.

In the case, Quiroz Franco, the employee, was given an arbitration agreement on March 9, 2018, and a Spanish translation shortly thereafter.  On March 19, 2018, he filed a lawsuit against his employer, alleging harassment, discrimination, and wage and hour claims among others.  On March 21, 2018, Quiroz Franco handed in his signed arbitration form, which the employer used to attempt to compel him to arbitrate. The lower court ruled that the claims in the employee’s suit started to accrue before he signed the arbitration agreement, so arbitration couldn’t be compelled.  The employer appealed and the Court of Appeal overturned the lower court’s decision.

California Court of Appeals Rules that Unfair Competition Law Claims Are Arbitrable

In Clifford v. Quest Software Inc., the California Court of Appeals addressed whether an employee’s claim against his employer for unfair competition under Business and Professions Code section 17200 (the UCL) was arbitrable, ruling that it was.  The employee brought various wage and hour claims against his employer, and the employer moved to compel arbitration based on the parties’ arbitration agreement.  The trial court granted the motion in part and ordered to arbitration every cause of action except the employee’s UCL claim, which the court concluded was not arbitrable.  The Court of Appeals reversed, holding that the employee’s UCL claim was subject to arbitration along with his other causes of action—more good news for California employers.

© 2019 Mitchell Silberberg & Knupp LLP

Running Backs NLRB Petition Seeks To “Stiff Arm” NFL Players Association With New Bargaining Unit

An upstart labor organization, the International Brotherhood of Professional Running Backs (IBPRB), has filed a petition with Region 13, the Chicago office of the National Labor Relations Board (NLRB), seeking to form a separate union for the National Football League’s running backs. The unit clarification petition, NLRB Case No. 13-UC-246227, seeks to sever and create a separate running back bargaining unit from the National Football League Players Association (NFLPA), which has historically represented all NFL players regardless of position.

A unit clarification or “UC” petition generally is used to resolve disputes regarding the unit placement of disputed positions, typically newly created positions, in a process referred to as an accretion. However, a UC petition also can be used as a method to affect the subdivision of an existing bargaining unit, as the IBPRB seeks to do here. A severance effort is most often undertaken when some changed circumstances have occurred that have negated any “community of interest” (similarity of terms and conditions of employment) that may have previously existed among the bargaining unit and raise uncertainty regarding the continued appropriateness of the existing bargaining unit.

The petition filed by the IBPRB cited “the unique career structures” of running backs as its basis for the loss of the necessary community of interest between the running backs and the other NFL player members of the NFLPA.

For a successful UC petition, the petitioner must show “recent, substantial changes in their operations, or that other compelling circumstances exist which would warrant disregarding the long-existing bargaining history” of the parties. In Batesville Casket Company, Inc., 283 NLRB 795 (1987), the NLRB relied upon the standard established in Rock-Tenn Co., 274 NLRB 772 (1985), and dismissed a UC petition because the employer-petitioners did not show any “recent, substantial changes in their operations, or that other compelling circumstances which would warrant disregarding the long-existing bargaining history” of the parties.

It may be difficult for the IBPRB to meet the “recent, substantial changes” test.

While the role of a running back has evolved over recent years as the passing game has become the dominant force in offensive schemes, the basic mission of the position– to carry the ball, catch passes, and block – is unchanged. Whatever may be the unique career structures to which the IBPRB referred in the petition (the average career of an NFL running back is 2.5 years compared to 3.3 years for all positions), it may be difficult for the union to show that there have been “recent, substantial changes” in the running back position to satisfy the Batesville Casket threshold for unit clarification.

In representation cases such as this, the regional office of the NLRB conducts an initial investigation and holds a hearing if appropriate. A notice of hearing has not yet been issued. The NLRB may still be in a huddle.

Jackson Lewis P.C. © 2019

More sports law on the National Law Review Entertainment, Sports & Art law page.

NLRB Will No Longer Require Employers to Permit Union Organizers in “Public Space” on Employers’ Property

Overruling 38 years of precedent, the NLRB has determined employers have no duty to permit union organizers to use “public space” to solicit union support on their property.  UPMC and SEIU, 368 NLRB No. 2 (June 14, 2019).

UPMC is a hospital system based in western Pennsylvania.  SEIU organizers visited the hospital cafeteria and distributed organizing materials to employees over lunch discussing union organizing activity. The hospital maintained a no-solicitation practice that prohibited nonemployees from using the cafeteria for purposes of solicitation.  When the hospital learned of the union organizers’ presence and purpose, they were asked to leave the cafeteria by security guards, and when they refused, local police were summoned and escorted the organizers off the property.  The Union filed unfair labor practice charges, alleging that this act was illegal.

The NLRB disagreed. Since 1981, the NLRB has created an entitlement to union agents to obtain access to “public space” – or, space in an employer’s property open to the public – for the purpose of soliciting union support among employees.  Typically, the “public space” involved a cafeteria or a restaurant, and union agents were permitted to use the space in a manner consistent with its intended use as long as they were not disruptive.  Montgomery Ward & Co., 256 NLRB 800, 801 (1981).

“The Board’s approach has been soundly rejected by multiple circuit courts (of appeal).”  In support of this finding, the Board recited decisions from the circuit courts of appeal of the 6th, 4th and 8th circuits, concluding the “public space” exception was insupportable in light of the United States Supreme Court decisions that permit employers to prohibit union agents from entering an employer’s property for organizing activity if the union could appeal to employees through other means and if the employer does not discriminate against unions by permitting other persons or organizations from soliciting on its property.  NLRB v. Babcock & Wilcox, 351 U.S. 105, 112 (1956).  Even when those conditions exist, the United States Supreme Court has held both of these exceptions are “narrow” and unions have a “heavy” burden of proof to establish the exception.  Sears Roebuck & Co. v. San Diego District Council of Carpenters, 436 U.S. 180, 205 (1978).

The NLRB agreed with the judicial criticism of its previous precedent and held:

… to the extent that Board law created a “public space” exception that requires employers to permit nonemployees to engage in promotional or organizational activity in public cafeterias or restaurants absent evidence of inaccessibility or activity-based discrimination, we overrule those decisions.

While the NLRB decision stops short of rejecting the policy of “nonacquiescence” where the Board ignores circuit court precedent which refuses to enforce its orders, it is illustrative of a growing sensitivity to the maintenance of Board law that is inconsistent with the precedent of the United States’ courts which refuse to enforce flawed NLRB precedent.

© 2019 Dinsmore & Shohl LLP. All rights reserved.
This article was written by Mark A. Carter and Brian J. Moore from Dinsmore & Shohl LLP.
For more on Union matters, see the National Law Review Labor & Employment page.