News & Analysis

The Good, the Bad and the Ugly

NEWS & ANALYSIS
NLRB seats fill, and more to come. The U.S. Senate confirmed William Emanuel as a member of the National Labor Relations Board on September 25, creating a Republican majority on the Board. Mr. Emanuel was a management-side labor and employment attorney. As we previously reported, Marvin Kaplan, former counsel to an Occupational Safety and Health Review Commission Commissioner, was confirmed in August. Mr. Emanuel’s term will expire August 27, 2021, and Mr. Kaplan’s term will expire August 27, 2020. The term of Republican Chairman Philip Miscimarra will expire in December, and he has announced that he will not serve another term. According to a report in Bloomberg BNA’s Daily Labor Report, President Trump is considering two candidates to replace Chairman Miscimarra. They are Mike Stoker, who has represented a California agricultural advocacy group, and John Ring, co-chair of the labor and employment department in a large national law firm.

Democrats Mark Gaston Pearce and Lauren McFerran fill out the remainder of the Board. Member Pearce’s term ends December 16, 2018, and Member McFerran’s term ends December 15, 2019. With the new Republican majority, many decisions of the Obama-era are ripe for reversal or change. These include decisions on class action waivers in arbitration agreements, joint employment, bargaining unit placement of temporary workers and appropriate units that include temporary employees, the validity and appropriateness of so-called “ambush” or “quickie” election regulations, so-called “micro” bargaining units, and the scope and limitations of protected concerted activity, particularly the recent focus on employer rules and policies.

President Trump on September 15 nominated Peter B. Robb to become the NLRB General Counsel to replace Obama appointee Richard F. Griffin, Jr. Mr. Robb, a management-side labor and employment attorney in Vermont, previously worked at the NLRB as counsel to a Republican Board member. Meanwhile, Mr. Griffin’s term has ended, and the Board, in a November 1 press release, announced that Jennifer A. Abruzzo, a longtime career attorney of the NLRB’s Miami and Headquarters offices, has been named Acting General Counsel. Ms. Abruzzo is likely to remain in that role until Mr. Robb is confirmed by the Senate (assuming he is). The General Counsel is in a position to steer the operations of the NLRB’s Region offices and plays an important role in deciding whether to advance new interpretations of the NLRA through discretion akin to a prosecutor’s power.

Continued litigation over class action waivers in arbitration continues unwavering. On October 2, the U.S. Supreme Court heard oral argument on the issue of employee waivers of class and collective actions in arbitration agreements and whether such waivers violate the National Labor Relations Act. We have previously reported on the three companion cases, Ernst & Young LLP et al. v. Morris., NLRB v. Murphy Oil USA Inc., and Epic Systems Corp. v. Lewis. The U.S. Department of Justice under President Trump has reversed the Obama Administration’s position in the cases, now contending that such waivers are lawful and opposing the NLRB’s position. It remains to be seen whether the NLRB will maintain its position with the new Republican majority.

Supreme Court to revisit agency fees issue for public sector employees. On September 28, the Supreme Court agreed to review Janus v. AFSCME, Council 31, a case involving so-called “agency fees” charged to public sector employees under collective bargaining agreements. The plaintiffs contend that an Illinois law allowing unions to require public sector employees to pay agency fees violates the First Amendment to the U.S. Constitution. They argue the Supreme Court should overrule its 1977 decision in Abood v. Detroit Board of Education, which held to the contrary. The Court faced the same issue in 2016 in Friedrichs v. California Teachers Association, but Justice Antonin Scalia died between oral argument and the issuance of the Court’s decision. Without Justice Scalia, the Court split 4-4, leaving in place a decision from the U.S. Court of Appeals for the Ninth Circuit, which followed Abood. Now, with Justice Neil Gorsuch on the Court, Abood may be overruled.The impact could be significant, as agency fees and union dues are the lifeblood of public sector unions, whose contributions and support, along with that of other labor organizations, are often the foundation for partisan political activity.

Court enforces NLRB panel decision finding one employee engaged in protected concerted activity. In NLRB v. Long Island Association for AIDS Care, Inc., the U.S. Court of Appeals for the Second Circuit granted enforcement of an NLRB panel decision finding that an employer violated the NLRA by discharging an employee who complained about being forced to sign a confidentiality statement. The employer, an AIDS treatment center, required employees to sign a confidentiality statement that prohibited the disclosure of various types of information, including information on wages and working conditions. The employee signed the confidentiality statement but noted that his signature was “under duress.” The employer viewed the notation as insubordination and discharged the employee. The employee filed an unfair labor practice charge asserting that the confidentiality statement was unlawful interference and that his discharge violated the NLRA. The NLRB panel sided with the employee. On review, the Second Circuit rejected the employer’s argument that the employee was not engaged in any protected “concerted” activity because he was acting alone. The court agreed with the NLRB that that an employer may not require “even one individual employee to abide by unlawful restrictions as a condition of employment.” The case is a reminder that employers should regularly review their rules and policies to be sure that they do not include provisions that the NLRB might view as interference with employees’ Section 7 rights.

West Virginia Right-To-Work law becomes enforceable. As we have previously reported, the West Virginia legislature passed right-to-work legislation that was to take effect on July 2016. However, the effective date was delayed after a court enjoined the legislation from taking effect. On September 15, 2017, the state Supreme Court of Appeals dismissed the injunction, allowing the law to take effect on October 15. The law generally provides that no employee can be forced to be a union member or pay union dues as a condition of employment.

THE GOOD, THE BAD AND THE UGLY
Is “taking a knee” protected concerted activity? A union has filed an unfair labor practice charge against the Dallas Cowboys organization, alleging that statements of the Cowboys’ General Manager were threats to prevent the players from engaging in protected concerted activity. The charge was filed by Local 100, United Labor Unions, which represents no NFL football players. Journalists and legal commentators have varying views on whether “taking a knee” is protected by the NLRA. Some say it is not because it is in protest of so-called “social justice” issues and not wages, hours, or other terms and conditions of employment. Others say it is protected to the extent that the players are expressing solidarity with former player Colin Kaepernick and what some claim is his alleged “blacklisting” by teams in the league. Former General Counsel Richard Griffin’s stated view in a General Counsel Memorandum on employer rules was that political actions may be protected concerted activity. Given that position, he would have been expected to find that social justice activity is protected by the NLRA. What position the next General Counsel or the current Acting General Counsel will take is uncertain. The NFL teams have a collective bargaining agreement with the NFL Players Association and individual contracts with the players. Whether the NLRB might defer to an arbitration provision in either type of agreement in these circumstances is also uncertain. Stay tuned, “sports fans”: This dispute is still in the first half, if not the first quarter.

New York labor unions aggressively oppose constitutional convention. Every 20 years, New York voters are presented with a ballot measure asking whether the state should hold a constitutional convention to consider amendments. This is a year for such a ballot measure and, according to an Associated Press report, the state’s labor unions are coming out in force to oppose a convention. The state AFL-CIO and unions are bombarding their members and the public with advertisements, newsletters, web pages, and emails, asserting that a constitutional convention could put at risk state law regarding collective bargaining rights, workers’ compensation, and unemployment insurance benefits. Proponents of a constitutional convention argue that the status quo has resulted in skyrocketing taxes and government corruption. Employer groups have remained relatively silent on the measure. Election day is November 7. The last state constitutional convention was in 1968, and it resulted in no changes.

Oh, the irony, Part 1: SEIU and (alleged) quid pro quo sexual harassment. News reports continue to pour out regarding sexual harassment by chieftains of industry, Silicon Valley entrepreneurs, Hollywood moguls, politicians, journalists and news directors, entertainment and sports stars – and union officials? According to news reports, several employees have lost their positions at the Service Employees International Union and an Executive Vice President has resigned, apparently due to complaints about his conduct and that of other supervisors of organizers connected to the SEIU’s Fight for $15 campaign. According to a recent article in BuzzFeed, “women inside the union say the internal culture of the Fight for $15 contrasts starkly with the values [SEIU President Mary Kay] Henry and the union preach.” The BuzzFeed story noted that sources, including current or former SEIU staffers, “spoke on the condition of anonymity for fear of retaliation within the labor movement.” So much for the often-claimed higher ground?

Oh, the irony, Part 2: UFW, organizers propose settlement after court finds that union violated wage and hour laws. In a lawsuit filed in California by 24 union organizers against the United Farm Workers of America, the parties have submitted a proposed settlement in which the UFW would pay $1.3 million, consisting of back pay and penalties of $1.12 million, and attorneys’ fees and costs of $800,000. In an earlier ruling, the court found that the union had misclassified the organizers as exempt employees, failed to provide proper wage statements, and failed to pay them properly for overtime and meal periods. According to Bloomberg BNA’s Daily Labor Report, the lead plaintiff had been fired by the union in 2013 “for what it said were multiple disciplinary issues.” After his termination, he decided to challenge the misclassification of UFW organizers. The plaintiffs’ attorney in the case was quoted as saying, “[T]he irony of it isn’t lost on anybody of the union workers having to sue the union to require the union to comply with the labor laws.” No, it is not lost!

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