- Volkswagen employees at a Chattanooga, Tennessee, facility voted to join the United Auto Workers (UAW). The workers voted 2,628 to 985 to join the UAW. The union has been focusing its organizing efforts at foreign automakers with U.S. facilities following successes with the “Big Three” automakers last year. The UAW won record-breaking pay increases for those workers. Those successes likely increased momentum at Volkswagen. According to a UAW press release, the Volkswagen workers are the first Southern autoworkers outside the Big Three to win a union election. The UAW plans to continue its push to organize at other non-union car manufacturers across the country.
- The National Labor Relations Board’s General Counsel (GC) Jennifer Abruzzo issued a memorandum instructing Board Regional Offices to seek enhanced remedies for unlawful work rules or contract terms. Memorandum GC 24-04 (Apr. 8, 2024). While the GC noted progress in achieving make-whole relief relating to back pay for employees “discharged for engaging in union or other protected concerted activity,” she stated such relief must be expanded to include all employees harmed as a result of an unlawful work rule or contract term — such as in an employment or severance agreement — “regardless of whether those employees are identified during the course of the unfair labor practice investigation.” The GC asserted that “mere rescission” of the rule or term does not provide adequate relief. Rather, discipline must be expunged or retracted to make impacted employees whole. Accordingly, Regions should seek settlements for make-whole relief where the discipline or legal enforcement action stemming from an unlawful rule or term “targets employee conduct that ‘touches the concerns animating Section 7,’ unless the employer can show that the conduct actually interfered with the employer’s operations and it was that interference, and not reliance on the unlawful rule or term, that led to the employer’s action.” Regions should seek and obtain information from employers regarding which employees were impacted with discipline or legal enforcement action..
- The Board reported significant increases in union election petitions and unfair labor practice charges. According to a Board press release, union activity is still on the rise, with both unfair labor practice charges and election petitions increasing at the highest levels in decades. In the first six months of fiscal year (FY) 2024 (which began Oct. 1, 2023), the Board noted a 7% increase in unfair labor practice charges compared to the same period last year. Union election petitions increased 35%, from 1,199 in the first six months of FY2023 to 1,618 during the same period in FY2024. RM petitions by employers have particularly skyrocketed — accounting for 281 of filed petitions — due to the Board’s new framework for when an employer needs to file an RM petition after receiving a demand for union recognition..
- The Department of Labor’s final rule for Occupational Safety and Health Administration (OSHA) inspections raises unionization concerns for employers. The rule aims to clarify (but it instead expands) the rights of employees to authorize third-party representatives to accompany an OSHA compliance safety and health officer during a workplace inspection. As a result, however, the rule seemingly allows a third-party union representative during an organizing campaign to report a safety concern to OSHA and then gain direct access to an employer’s workplace during the inspection that follows. This would give union organizers unprecedented access and broaden unions’ access rights to employer property. The rule is scheduled to take effect on May 31, 2024.
- Law360 reported that the College Basketball Players Association filed an unfair labor practice charge against the University of Notre Dame regarding classification of college athletes. University of Notre Dame, 25-CA-340413 (Apr. 18, 2024). The charge alleges Notre Dame violated the National Labor Relations Act “by classifying college athletes as ‘student-athletes.’” The charge follows the Board GC’s 2021 memorandum, Memorandum GC 21-08, in which she stated her position that student-athletes at private universities are “employees” under the Act because they perform services for their colleges and the National Collegiate Athletic Association in return for compensation and are subject to their respective college’s control. The Board has yet to rule on the issue.
Tag: Unions
What Are the Top 3 Labor Law Developments of 2023 (So Far)?
It’s hard to believe the end of 2023 is upon us. This year is one for the history books on the labor law and labor relations fronts. In a year packed with significant legal landscape changes and high-profile labor disputes, it’s worth a quick recap of what are – in my view – the top 3 developments.
1. NLRB Revamps the Union Organizing Process
At the top of my list are changes the National Labor Relations Board (NLRB) made to the union organizing process. The board did several things in this regard. First, the NLRB reinstated the Obama-era “ambush” election rules that accelerate the union election timetable. Specifically, these rules truncate the amount of time between an election petition being filed and a vote being held (i.e., shorten the amount of time a company has to campaign).
Second, the agency issued arguably one of its most groundbreaking decisions in decades in Cemex. In that case, the NLRB altered the framework for how unions can and will be recognized and significantly loosened the standard for Draconian bargaining orders in some cases. Bottom line: The legal landscape, relatively speaking, makes it exponentially easier for workers to vote in unions now.
2. UAW Strikes at the Big 3
Labor relations issues haven’t been top headlines in recent decades. That changed this year. The ongoing nationwide union push at Starbucks over the last two years has garnered much attention, along with some other high-profile union pushes and disputes. But the United Auto Workers’ (UAW) coordinated strike efforts at Detroit’s “Big Three” automakers truly was remarkable in terms of the national attention it garnered. For the first time, the UAW struck General Motors, Ford, and Stellantis (aka Chrysler) at once.
The UAW took a creative approach: it targeted specific plants for work stoppages while leaving others operational. This approach had two primary benefits to the union: 1) it allowed it to slow the cash burn on their strike pay bank (estimated to be north of $800 million at one point) and 2) it allowed the union to keep the companies guessing as to which plants the UAW may bring offline next – creating operational inefficiencies and uncertainty. Ultimately, this strategy resulted in deals with each of the Big 3, and most view the UAW as having come out on top in these negotiations.
3. NLRB Starts to Scrutinize Non-competes
On May 30, the NLRB’s top lawyer, Jennifer Abruzzo, turned heads when she issued a memo signaling that her office was taking the view that non-compete agreements, in some circumstances, violate the National Labor Relations Act (NLRA). This development was somewhat surprising to some given that the NLRA was passed nearly 100 years ago and was not cited previously as a basis to invalidate standard restrictive covenants found in countless employment agreements around the country.
Abruzzo further announced the NLRB will be coordinating enforcement and a potential crackdown on non-competes with the other agencies, including the Federal Trade Commission – which this year also signaled an emphasis on these agreements – and the Department of Justice.
Given there’s a month left to go before the end of 2023, there may be other significant developments to come, but, for now, these are my top three. Happy Holidays!
Beltway Buzz, January 20, 2023
Union Membership Decreases. The percentage of workers who are union members dropped to 10.1 percent in 2022 from 10.3 percent in 2021, according to data released this week by the U.S. Bureau of Labor Statistics (BLS). In the private sector, the unionization rate fell to 6 percent last year from 6.1 percent in 2021. According to BLS:
The 2022 unionization rate (10.1 percent) is the lowest on record. In 1983, the first year where comparable union data are available, the union membership rate was 20.1 percent and there were 17.7 million union workers.
Thus, despite some splashy headlines and a few high-profile examples, the great majority of employees continue to reject unionization. Expect labor unions and their allies in Washington, D.C., to spin these numbers as a reason to double down on efforts to tilt the labor policy field in favor of labor unions.
D.C. Circuit Issues Ruling on NLRB 2019 Election Regs. This week, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision relating to five specific provisions of the National Labor Relations Board’s (NLRB) 2019 changes to its regulations governing union elections. In a May 2020 decision, the U.S. District Court for the District of Columbia (in an opinion by then-judge Ketanji Brown Jackson) invalidated the five provisions as contrary to the Administrative Procedure Act because the NLRB did not seek public comment on the changes. (The Board argued that the changes were procedural, not substantive, in nature and that public comment was not necessary.) In this week’s decision, the D.C. Circuit agreed that the district court was correct in invalidating three provisions: “the rules regarding the eligible employee-voters list, the timeline for certification of election results, and election-observer eligibility.” However, the D.C. Circuit ruled that the two remaining provisions—regarding pre-election litigation of voter eligibility and the timing of the date of an election—are “‘internal house-keeping’ rules” that are exempt from notice and comment requirements.
House Republicans Seek Information From Federal Agencies. Representative Virginia Foxx (R-NC) is wasting no time exercising her authority as chair of the House Committee on Education and the Workforce. Late last week, Foxx resent to federal labor agencies a series of previous information requests that were answered while Republicans were in the House minority in 2021 and 2022. The requests include the following:
- Letters to Secretary of Labor Martin Walsh regarding, among other issues, his involvement in various high-profile labor disputes; documents and communications relating to the development and implementation of the Occupational Safety and Health Administration’s (OSHA) 2021 vaccine-or-test emergency temporary standard; and information surrounding the February 2022 report offered by the Task Force on Worker Organizing and Empowerment, such as attendance lists, meeting minutes, rejected policy proposals, involvement of outside organizations.
- A letter to National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo regarding her April 2022 memorandum relating to employer speech. Specifically, the letter asks for information about the possible involvement of outside organizations, other agencies, and the White House, in the drafting of the memo.
- A letter to NLRB Chair Lauren McFerran inquiring about potential conflicts of interest that Member Gwynne Wilcox and Member David Prouty may have regarding the Board’s joint employer policy.
The Buzz suspects that these letters are just the first examples of what will be at least two years of aggressive agency oversight by the committee.
DHS Announces Deferred Action for Workers Involved in Labor Investigations. Late last week, the U.S. Department of Homeland Security (DHS) announced a new streamlined and expedited process for undocumented workers seeking deferred action as a result of their cooperation in investigations into potential violations of labor laws. The new policy further implements provisions of DHS’s October 2021 memorandum, “Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual.” According to the announcement, DHS will “provid[e] new guidance to labor agencies regarding processes to seek deferred action for certain workers” and will create a “single intake point for deferred action requests from noncitizen workers.” As such, “[t]he centralized intake process will allow DHS to efficiently review these time-sensitive requests, provide additional security to eligible workers on a case-by-case basis, and more robustly support the mission of labor agencies.”
OFCCP Proposes Changes to Complaint Intake Process. This week, the Office of Federal Contract Compliance Programs (OFCCP) proposed changes to its complaint intake process. OFCCP is proposing to add a preliminary step to evaluate the timeliness of allegations, whether it has jurisdiction over a matter, and how the matter should proceed. If OFCCP determines that an investigation is warranted, it will direct the complainant to fill out a more detailed form. According to the proposal, this two-step procedure “will improve the efficiency of [OFCCP’s] complaint intake process.” Comments are due by March 20, 2023.
Days of Hayes. President Rutherford Birchard Hayes passed away this week (January 17) in 1893. Hayes, the nineteenth president, was a former congressman and three-time governor of Ohio before he ran for president in 1876. His election against Democrat Samuel Tilden, the governor of New York, was mired in controversy and allegations of voter intimidation, resulting in disputed Electoral College votes. This led to the creation of an electoral commission, which eventually swung the Electoral College votes to Hayes by a margin of 185–184. The process earned Hayes the nickname “Rutherfraud” from Democrats. While Hayes hasn’t been the subject of popular movies or Broadway shows, he was a very interesting president:
- Although twelve presidents who served before him were lawyers, Hayes was the first president to graduate from law school.
- At almost forty years old, with no previous military experience, Hayes volunteered to fight for the Union during the Civil War. He was wounded several times, and served in the same infantry unit as fellow future president, William McKinley.
- In 1879, Hayes signed the “Lockwood Bill,” which permitted women to practice law in federal court.
- Hayes was the first president to make a trip to the West Coast and the first president to have both a telephone and a typewriter in the White House.
Hayes is responsible for the first Easter Egg Roll on the White House lawn, a tradition that will celebrate its 145th anniversary in just a few weeks.
© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
Following the Recent Regulatory Trends, NLRB General Counsel Seeks to Limit Employers’ Use of Artificial Intelligence in the Workplace
On October 31, 2022, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released Memorandum GC 23-02 urging the Board to interpret existing Board law to adopt a new legal framework to find electronic monitoring and automated or algorithmic management practices illegal if such monitoring or management practices interfere with protected activities under Section 7 of the National Labor Relations Act (“Act”). The Board’s General Counsel stated in the Memorandum that “[c]lose, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights,” and urged the Board to find that an employer violates the Act where the employer’s electronic monitoring and management practices, when viewed as a whole, would tend to “interfere with or prevent a reasonable employee from engaging in activity protected by the Act.” Given that position, it appears that the General Counsel believes that nearly all electronic monitoring and automated or algorithmic management practices violate the Act.
Under the General Counsel’s proposed framework, an employer can avoid a violation of the Act if it can demonstrate that its business needs require the electronic monitoring and management practices and the practices “outweigh” employees’ Section 7 rights. Not only must the employer be able to make this showing, it must also demonstrate that it provided the employees advance notice of the technology used, the reason for its use, and how it uses the information obtained. An employer is relieved of this obligation, according to the General Counsel, only if it can show “special circumstances” justifying “covert use” of the technology.
In GC 23-02, the General Counsel signaled to NLRB Regions that they should scrutinize a broad range of “automated management” and “algorithmic management” technologies, defined as “a diverse set of technological tools and techniques to remotely manage workforces, relying on data collection and surveillance of workers to enable automated or semi-automated decision-making.” Technologies subject to this scrutiny include those used during working time, such as wearable devices, security cameras, and radio-frequency identification badges that record workers’ conversations and track the movements of employees, GPS tracking devices and cameras that keep track of the productivity and location of employees who are out on the road, and computer software that takes screenshots, webcam photos, or audio recordings. Also subject to scrutiny are technologies employers may use to track employees while they are off duty, such as employer-issued phones and wearable devices, and applications installed on employees’ personal devices. Finally, the General Counsel noted that an employer that uses such technologies to hire employees, such as online cognitive assessments and reviews of social media, “pry into job applicants’ private lives.” Thus, these pre-hire practices may also violate of the Act. Technologies such as resume readers and other automated selection tools used during hiring and promotion may also be subject to GC 23-02.
GC 23-02 follows the wave of recent federal guidance from the White House, the Equal Employment Opportunity Commission, and local laws that attempt to define, regulate, and monitor the use of artificial intelligence in decision-making capacities. Like these regulations and guidance, GC 23-02 raises more questions than it answers. For example, GC 23-02 does not identify the standards for determining whether business needs “outweigh” employees’ Section 7 rights, or what constitutes “special circumstances” that an employer must show to avoid scrutiny under the Act.
While GC 23-02 sets forth the General Counsel’s proposal and thus is not legally binding, it does signal that there will likely be disputes in the future over artificial intelligence in the employment context.
©2022 Epstein Becker & Green, P.C. All rights reserved.
Employers, It’s Time to Replace Your Mandatory EEOC Poster
On October 20, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released an updated version of its mandatory workplace poster that informs employees of their rights and protections.
Employers must post this new version of the poster in their office spaces as soon as practicable.
The latest “Know Your Rights” flyer, which replaces the previous “EEO is Law” poster, must be displayed in all workplaces covered by the agency’s jurisdiction. This includes private sector businesses with 15 or more employees, as well as state and local government agencies, educational institutions, unions, and staffing agencies.
What’s Changed?
The new poster includes several updates from the older version. Some of the main changes are:
- Clarification that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation, or gender identity;
- Identifies harassment as a prohibited form of discrimination;
- Provides information about equal pay discrimination for federal contractors; and
- Uses more straightforward language and formatting.
The poster also includes a QR code for employees with a smartphone or other compatible devices to quickly access the EEOC’s website on how to file a charge of employment discrimination.
What’s Remained the Same?
While the poster has been updated, some of the information included remains the same. The bulletin still outlines the types of discrimination that are prohibited by federal law, such as:
- Race, color, sex (including pregnancy and related conditions, sexual orientation, or gender identity), national origin, religion,
- Age (40 and older),
- Equal pay,
- Disability,
- Genetic information (including family medical history or genetic tests or services), and includes
- Retaliation for filing a charge, reasonably opposing discrimination, or participating in a discrimination lawsuit, investigation, or proceeding.
Actions Employers Should Take
Employers who fail to post the new Know Your Rights poster could face noncompliance penalties from the EEOC. Therefore, businesses must take the time to update their posters as soon as possible.
On October 25, 2022, the EEOC distributed an FAQ stating that employers should remove the old poster and display the new one “within a reasonable amount of time” but did not provide a specific deadline.
The agency recommends that employers post the new flyer in a conspicuous place where employees will see it, such as in a break room or near the time clock. Covered employers should also consider posting an online notice on their website for remote or hybrid workers.
© 2022 Ward and Smith, P.A.. All Rights Reserved.
Supreme Court Set to Decide Whether NLRA Preempts State Law Claims for Property Damage Caused During Strikes
Factual Background
The case – Glacier Northwest Inc. v. International Brotherhood of Teamsters Local Union No. 174 – began over five years ago when the Union in Washington State representing the Employer’s truck drivers went on strike. The Union timed their strike to coincide with the scheduled delivery of ready-mix concrete, and at least 16 drivers left trucks that were full of mixed concrete, forcing the Employer to rush to empty the trucks before it hardened and caused damage. The Employer was able to do so, but incurred considerable additional expenses and, because it dumped the concrete in order to avoid truck damage, lost its product.
Employer Brings State Law Suit for Property Damage
After the incident, the Employer sued the Union under Washington State law for intentional destruction of property. The Union argued that the suit was preempted by the Supreme Court’s decision in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959) (“Garmon”). In Garmon, the Supreme Court held that, although the Act does not expressly preempt state law, it impliedly preempts claims based on conduct that is “arguably or actually protected by or prohibited by the Act.” The Supreme Court held in Garmon that conduct is “arguably protected” when it is not “plainly contrary” to the Act or has not been rejected by the courts or the National Labor Relations Board (the “Board”).
State Court Holdings
The Washington State trial court dismissed the Employer’s suit for property damage because strikes are protected by the Act. The Washington Court of Appeals reversed, holding that intentional destruction of property during a strike was not activity protected by the Act, and thus, not preempted under Garmon.
Finally, the Washington Supreme Court reversed again, holding that the Act impliedly preempts the state law tort claim because the intentional destruction of property that occurred incidental to a work stoppage was at least arguably protected, and the Board would be better-suited to make an ultimate determination on this legal issue.
Question Before the Supreme Court
The Supreme Court will now determine whether the National Labor Relations Act bars state law tort claims against a union for intentionally destroying an employer’s property in the course of a labor dispute.
Under Garmon, the Act does not preempt suits regarding unlawful conduct that is plainly contrary to the NLRA, and the Employer argues that the strike at issue here was plainly unprotected because of the intentional destruction of property. In other words, the conduct is not even arguably protected by the Act such that the Act would preempt – it was, rather, plainly unprotected conduct, and thus, the proper subject of a lawsuit. The Employer also cited the “local feeling” exception to Garmon, which creates an exception to preemption where the States may have a greater interest in acting, such as in the case of property damage or violence.
The Union argued in opposition to the Employer’s certiorari petition that the Employer merely challenged the Washington Supreme Court’s conclusion that the conduct was arguably protected by the Act, and not its reasoning. Moreover, whether or not the conduct was protected should be decided by the Board, which is better-suited to decide the matter.
Takeaway
Employers should gain much greater clarity into whether they can seek relief from such conduct via a damages lawsuit. If the Court finds that such conduct is not preempted and may be litigated in state court, such a ruling could go far in protecting employers’ interests in contentious labor disputes and potentially shift the balance of power towards employers during these disputes.
© 2022 Proskauer Rose LLP.
Could Leagues and Teams be Joint Employers Before the NLRB?
The National Labor Relations Board (NLRB) has released a Notice of Proposed Rulemaking to change the standard for determining if two employers may be joint employers under the National Labor Relations Act (NLRA). The proposed rule, expected to become effective sometime in 2023, could make it more likely that professional and collegiate leagues would be found to be joint employers of any unionized professional players or collegiate student-athletes who play for teams that are members of those leagues.
As a joint employer of unionized players of member teams, a league could be jointly responsible for unfair labor practices committed by the teams or the team’s supervisors or managers (i.e., coaches and administrators), be required to participate in collective bargaining negotiations with the teams concerning the wages and other terms and conditions of employment of the players, and picketing directed at the league would be considered primary and therefore permissible (rather than secondary and subject to injunction).
Currently, the NLRB will find two or more employers to be joint employers if there is evidence that one employer has actually exercised direct and regular control over essential employment terms of another employer’s employees. An employer that merely reserves the right to exercise control or that has exercised control only indirectly will not be found to be a joint employer. The NLRB has proposed that the Browning Ferris standard be restored. Under the proposed rule, two or more employers will be found to be joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment.” Importantly – and the critical import of the proposed rule – the NLRB will consider both evidence that direct control has been exercised and that the right to control has been reserved (or exercised indirectly) over these essential terms and conditions of employment when reviewing two or more employers for status as joint employers.
Professional athletes are employees under Sec. 2(3) of the NLRA, of course. As for collegiate student-athletes, NLRB General Counsel Jennifer Abruzzo issued a memorandum, GC 21-08, announcing the intention to consider scholarship athletes at private colleges and universities to be employees because, as she wrote, they “perform services for their colleges and the NCAA, in return for compensation, and subject to their control.” Stating in summation “that this memo will notify the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA, that [she] will be taking that legal position in future investigations and litigation” under the NLRA, Abruzzo signaled that conferences, leagues, and the NCAA will face joint-employer analysis in an appropriate case.
The “essential terms and conditions of employment” will translate to the sports workplace in the nature of game, practice and meeting times, travel and accommodation standards, equipment and safety standards, conduct rules and disciplinary proceedings, the length of a season, the number of games and playoff terms, and numerous other areas. Professional leagues may already coordinate with their member teams on a number of employment terms for players. For collegiate conferences and leagues, this may be new. Under the current standard, a league could better insulate itself from the decisions made by its members’ coaches and administrators by not exercising direct involvement in those matters. Under the proposed rule, a league or conference that merely has the power (even if reserved and unexercised) to make decisions affecting the “work” conditions for student-athletes could be jointly liable along with the institution for decisions made solely by the institution’s agents.
Consequently, conferences and leagues should consider training managers on their responsibility under the NLRA to private sector employees. They should also consider the role they want to play in collective bargaining should any of the student-athletes at their member institutions unionize.
Jackson Lewis P.C. © 2022
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.
Are Tech Workers Considering Unionizing In The Wake Of COVID-19?
Big tech companies by and large have remained union-free over the years unlike their peers in other industries such as retail and manufacturing. However, earlier this year – and before the COVID-19 pandemic upended workplaces across America – unions scored their first major organizing victory in the tech sector when employees at Kickstarter voted to form a union. According to at least one recent report, more tech company workers may soon be following suit.
The Teamsters, Communications Workers of America, and the Office and Professional Employees International Union all reported an uptick in inquiries from non-union employees about prospects of unionizing the companies they work for, including in the tech and gig economy sectors. One of the reasons cited by these workers was a feeling that not enough is being done to protect employees against the spread of COVID-19, particularly those who work in e-commerce fulfillment centers or drive for ride-sharing apps. There also was concern by employees who were, at least at one point, denied remote work arrangements when they believed their jobs were suited for such an arrangement.
It remains to be seen whether organized labor will be able to augment its numbers based on these workers’ concerns. Several things may complicate any such efforts, including unprecedented layoffs and an almost singular focus by people across the nation on the ongoing pandemic itself.
To the extent unions try to capitalize on the unrest, there are many reasons employers facing organizing attempts should be concerned. For example, one of the most effective tools a company can consider to stave off a unionization attempt are large, all-employee meetings where leaders of the organization communicate directly to the workforce why forming a union isn’t in the company’s or employees’ best interests. In an era where social distancing is a necessity, such meeting – at least in-person – likely won’t be a viable option. In addition, mail-in ballot union elections may become the standard as long as social distancing requirements remain in effect, which are less preferred than live secret-ballot voting booths.
Accordingly, employers desiring to remain union-free should give thought to what talking points, materials, and strategies – as well as communications channels – they have available to them now around this issue. Waiting to do so until after a union petition hits may place them at a significant disadvantage.
© 2020 BARNES & THORNBURG LLP
For more industries impacted by COVID-19, see the National Law Review Coronavirus News 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.
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