On October 3, the National Labor and Relations Board (NRLB) Office of the General Counsel (OGC) issued a Memorandum from the Division of Operations-Management to all Regional Directors, Officers-In-Charge, and Resident Officers.  This Memo (Memorandum OM 17-02) reveals an aggressive new position from the OGC, one which attempts to overturn decades of Board precedent.

For years, the Board has limited workers’ ability to engage in partial or intermittent strikes. In some instances, the Board has used the term “partial strike” to include anything less than a total, traditional strike (where employees completely withdraw their labor and refuse to work until the parties settle the dispute).  This would include intermittent strikes, where employees go back and forth between working and striking.  Other times, the Board has used the term “partial strike” more narrowly to describe more specific types of limited, non-traditional strikes which are situationally distinct from intermittent strikes.  Regardless of the verbiage used, however, the Board has consistently found that Section 7 of the National Labor Relations Act (NLRA), which protects “concerted activity,” does not protect employees engaging in either of these types of limited strikes.  Under current Board precedent, therefore, employees who strike multiple times over the same labor dispute may be disciplined by their employers.

Now, the OGC wishes to dramatically extend Section 7 protection to cover multiple short-term strikes. The Memo states that the Board’s present test for determining whether such strikes are protected “is difficult to apply” and “exposes employees to potential discipline for activities that should be considered protected under Section 7 of the Act.”  Accordingly, the OGC will now be taking the position that the Board should modify the law regarding intermittent and partial strikes.  In furtherance of this effort, the Memo references an attached model brief and instructs its recipients to utilize the analysis contained in the model brief and incorporate those arguments into the General Counsel’s briefs submitted to Administrative Law Judges and the Board.

The arguments contained in the model brief “urge[] the Board to clarify this area of law by drawing clear conceptual distinctions between partial and intermittent strikes and redefining the circumstances under which intermittent strikes become unprotected.” More specifically, the General Counsel proposes a framework where multiple strikes (even if those strikes are over the same labor dispute) would be protected if: (1) the strikes “involve a complete cessation of work, and are not so brief and frequent that they are tantamount to work slowdowns”; (2) the strikes “are not designed to impose permanent conditions of work, but rather are designed to exert economic pressure”; and (3) the “employer is made aware of the employees’ purpose in striking.”  The model brief argues that this framework “more effectively protects” a worker’s right to strike, “dispenses with the unpersuasive rationales” on which the Board has previously relied, and “better addresses Supreme Court precedent.”

Unfortunately, such an expansion Section 7 protections would upend years of generally understood and accepted labor relations practices. And unsurprisingly, employers would suffer the most, as they attempt to navigate new distinctions and the nuances of newly-protected strikes that will undoubtedly disrupt operations more than traditional strikes.  Accordingly, employers will have an important role to play in NLRB proceedings by pushing back against the OGC’s new and threatening position.

In most situations the NLRB’s long established Weingarten doctrine can be applied in a fairly straight-forward fashion.  But I still get questions regarding the interplay of drug and alcohol testing when it comes to Weingarten.  This is probably due to the fact that the Ralphs Grocery Company decision, which issued in 2014, is a relatively new expansion of the Weingarten doctrine wherein an employee has the right to consult a union steward prior to taking a drug test.  And then more recently, in Manhattan Beer Distributors the Board expanded Weingarten rights further, in the context of drug and alcohol testing, as the Board established that an employee had a right to a union steward to be physically present for the alcohol or drug test.  An employer need only wait a “reasonable amount of time” for the union representative to be physically present; however, that time will be a function of the substance being tested for and the effect of time on the outcome of the test results.  In other words, alcohol will probably have a shorter timeline in terms of what is a reasonable period, versus marijuana, which stays in the system for days, if not weeks.

Again, the employee must request the union representation. There is no duty on the part of the employer, absent a contractual requirement otherwise, to seek out union representation for these circumstances.  So be aware of these new restrictions and apply them wisely, otherwise your discipline will more than likely be found unlawful and an otherwise clean discharge will turn into the nightmare of reinstatement and full backpay.

Once again I shake my head at the NLRB’s analysis in their application of the National Labor Relations Act. In the high profile Northwestern University case which issued in August of last year, the Board found that it would not assert jurisdiction over the grant-in-aid scholarship football players of Northwestern University, citing in particular the fact that it would not promote stability in labor relations.  The Board bypassed the issue as to whether the football players were statutory employees and went with a policy oriented approach, finding that it was not in the best interest of all involved to invoke jurisdiction.  As the Board noted “even when the Board has authority to act( which it would in this case, were we to find that the scholarship players were statutory employees) the Board sometimes properly declines to do so”, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction.

In declining jurisdiction the Board focused on the fact that the overwhelming majority of Northwestern’s competitors in football are public colleges and universities over which the Board cannot assert jurisdiction, so it would not promote stability in labor relations to assert jurisdiction in that situation. This underlying theme is restated repeatedly in the Board’s decision in Northwestern University and while there are other distinctions set out by the Board, this is the core determining factor for the Board.  Yet, here we are, a few months later, and the Board holds in Columbia University that graduate students should be protected under the Act even though the Board will not have jurisdiction over the bulk of the universities and colleges who compete for their services, resulting in the same instability in labor relations.  The Board’s reasoning and distinctions simply make no sense.  Indeed, I think that if the matter is taken up on appeal, given the Northwestern University case, grounds for overturning the Board’s Columbia University decision are readily apparent.  There simply is not a rational distinction between the two cases.

So we are going to have to wait this one out and see if there is an appeal and what the courts’ findings may be in this further expansion by the Board of its jurisdiction.

An order, dated February 19, 2016, by the Board granted special permission to appeal and invited briefs over the issue of whether or not they will continue to permit Administrative Law Judges to issue orders granting settlement terms proposed by a respondent, to which no other party has agreed to, over the objections of the General Counsel.  Although these are relatively limited situations that arise, under Board procedures they definitely provide a mechanism to keep the General Counsel’s office in check over unreasonable settlement demands, especially in light of unfair labor practice claims that would normally be subject to a motion to dismiss or summary judgment if litigated in the courts.

Let’s be realistic, the Board normally does not take this action (brief invitation) unless it intends to change its practice. This is no more than a heads-up to all those who practice before the Board, that they are going to change their policy on this matter.  The invitation to file briefs over the current practice is simply providing lip service to the public and is truly not meant to engage in any high level discussion over the pros and cons of this procedure.   Like so many of the other changes which this Board has made since the Obama Administration has been in power, the best that can be hoped is that there will be a true change come the elections in November that would result in a change in the make-up of the Board and a reversal to the status quo ante for so many of these matters.   Let’s keep our fingers crossed.

The Eighth Circuit became another notch in the belt of the NLRB in support of its position as set forth in Specialty Healthcare with the issuance of FedEx Freight, Inc. v. NLRB.  The facts are fairly straightforward and are typical for a representation proceeding in that the employer wanted to expand the bargaining unit beyond the scope of that which was petitioned for by the union, citing prior case law and the Board’s misapplication of the law, in particular, its Specialty Healthcare doctrine.  Unfortunately for FedEx Freight, this is one area of the law in which the courts give the NLRB a great deal of deference.  And that is exactly the route the Eighth Circuit took in this matter.  As frustrating as this area of the law is for many of us on the management side, the law has long been stated that the unit petitioned for need only be an appropriate unit, not the most appropriate unit.  And while it may appear that the Board is simply allowing the unions to dictate the scope of the bargaining unit based upon the extent of organization, as the Eighth Circuit points out in its decision, while that may not be given controlling weight it can be a consideration in the determination by the Board regarding the appropriateness of the unit.

Simply put, I see the Specialty Healthcare decision something we are going to have to live with for some time until the makeup of the Board changes and there is a reversion to the previous standard. Regardless of the case law in this area, ultimately it gets down to winning the election, and while obtaining a unit that is more favorable for a win in management’s column is part of that process, there are other ways in which to win a NLRB election and the recent statistics set forth by the Board under the new rules indicate that that has not changed.  So in terms of an organizing campaign, the focus should be on the campaign, versus the scope of the unit, given the overwhelming direction by the Courts of Appeal who have supported the Board’s Specialty Healthcare decision.

Many of us have been watching the ongoing battle taking place in Region 2 of the NLRB as to the consolidated unfair labor practice proceedings that are taking place with respect to McDonalds and various McDonalds’ franchisees. The hearing that was originally scheduled to begin on March 30th of this year has been postponed repeatedly due to ongoing disputes over production of documents pursuant to various subpoenas issued to the franchisees involved.  The subpoenaed information related to the joint employer relationship between the franchisees and McDonalds.  Apparently, realizing that they were being stonewalled, the NLRB finally filed, in the U.S. District Court for the Southern District of New York, an application for enforcement of the subpoenas.  The Court, by Order of November 12, 2015, granted enforcement of the subpoenas citing the fact that the Board had set forth a prima facie case for enforcement and that the defenses put forth by the franchisee respondents failed to establish that enforcement of subpoenas would impose an unfair burden on them, or was otherwise contrary to the Board’s authority to seek such enforcement.

Obviously this finding by the Court makes it clear that parties engaged in franchise agreements need to get their house in order as to the documents relating to their relationship to lessen the potential for a joint employer finding. The Board will do an extensive subpoena request in any such proceedings in an attempt to flush out each and every fact that will support their position that a joint employer relationship exists.  Doing battle through subpoena enforcement is simply too late to protect your interests.  The time is now to be pro-active and review the documents in question, and to revise, if necessary, so that the potential for a joint employer finding is lessened as much as practical.

In the NLRB’s never ending expansion of its jurisdiction, it has agreed to reconsider whether graduate teaching assistants at private non-profit universities are entitled to collective bargaining under the National Labor Relations Act. As anyone who has been involved in education labor law for any period of time knows, the Board has gone back and forth on this issue and all in a relatively short timeline. Initially, back in 2000, the Board ruled that graduate teaching assistants were eligible for collective bargaining under the Act, and then in the 2004 Brown University decision the Board reversed its 2000 ruling. However the unions are taking notice of the Board’s desire to expand its jurisdiction and so they have been on the prowl to organize such students. The New School, the current case, is now before the Board and it is very likely that they will find that graduate students, once again, have the right to organize under the NLRA, at least with respect to private educational institutions. Hence, universities will be under attack again, not only with respect to the adjunct faculty issue, which has been a very hot topic recently, but also with respect to graduate assistants and unions attempts to organize them.

In the first reported decision since the Board’s holding in Browning-Ferris, the Regional Director for Region 5 of the NLRB found that, with respect to the particular facts in a case before that Region, the union failed to establish a joint employer relationship. The case arose in the context of a staffing agency, GJW, providing temporary labor to various construction companies in the Maryland, Washington, D.C., and Virginia areas. The other employer involved was ACECO, who was a construction company engaged primarily in asbestos removal in the same geographic area who used GJW employees to supplement their workforce. The facts in the case were very favorable for the finding that there was not a joint employer relationship. Indeed it appears that both employers were quite prepared in avoiding such a finding. The contract language, in particular, made it clear that the temporary service, GJW, acted independently to the contractor it served. More importantly, as a practical matter, both parties acted in accordance with the written terms of the contract; meaning they not only agreed to keep employment matters separate in writing, they kept matters separate in practice, including supervision, benefits, wages, and overall working conditions. In particular, ACECO did not engage in those activities that normally result in a joint employer finding, such as being involved in the hiring process, regularly supervising and disciplining the temporary service employees, assigning them specific work assignments, and otherwise acting as their employer.

To be perfectly frank, it appears that the union did not do their homework in this situation as there was not a single employee who presented evidence on behalf of the union that would undermine the employers’ position that there was no joint employer relationship. Now maybe those facts did not exist, but in the real world I think we all recognize that there are enough situations that arise, especially in the temporary service world, where common supervision, assignment of work, and control over working conditions often takes. Why the record fails to produce such evidence, again, may be a function of the employers’ being at the ready, but after reading this decision, most unions will be very aware that it is not going to be a “slam dunk” in obtaining joint employer status and they should not get too cocky in their presentations at such hearings. So a word of caution to other employers, I think this is going to be a “heads-up” to the unions to be more aggressive in presenting evidence on the joint employer issue and not simply rely upon the assumed pro-union stance of the Board.

In the case of Murphy Oil USA, Inc. v NLRB, the Fifth Circuit recently reaffirmed its position allowing class waivers in arbitration agreements, contrary to the NLRB’s position in D.R. Horton. Obviously, given the fact that this same Court of Appeals recently denied enforcement of the Board’s Order in D.R. Horton on this same subject matter most parties were interested as to whether the Court of Appeals would sanction or rebuke the Board for defending the appeal. Surprisingly the Court was extremely gracious, to say the least, saying they neither condemned nor celebrated the Board’s failure to follow the D.R. Horton reasoning.

The real question is whether or not there will be a further rehearing by the panel or an en banc court. Obviously an appeal before this panel probably is not warranted. And placing the case in the hands of an en banc court may put the Board in the position of receiving sanctions. In any event, it is another nail in the coffin with respect to the Board’s position on class waivers. To date, not one Court of Appeals has supported the NLRB’s position on this matter.

In an August 27, 2015 decision, a majority of the Board found that the Purple Communications standard, with respect to an employer’s email system, would apply without exception to healthcare providers and, in particular, for acute care hospitals. Contrary to the cogent arguments put forth by member Johnson in his dissent, the majority found that there should be no exception to the presumption set forth under Purple Communications that employees have a statutory right to use an employer’s email system for Section 7 related communications during non-working time. The majority also found that the hospital failed to show “special circumstances” to rebut this presumption, notwithstanding the fact that evidence was submitted of studies finding a correlation between employee distractions and patients’ safety and identifying computers and other electronic communication devices as sources of such distraction. Again, member Johnson, in his dissent, sets forth the obvious impact of electronic distractions in a hospital setting, but to no avail. He also emphasizes the fact that the use of email is actually extremely difficult, if not impossible, to monitor in terms of limiting its use to non-working time for a number of logical reasons, especially with respect to when employees receive emails. Indeed, Johnson points out that an email system is a virtual work area. This fact, along with the fact that there were numerous other alternative modes of communication available for employee communication, which do not depend on access to the employer’s email system, such as the employees’ personal cell phones, other electronic devices, numerous break rooms, and other locations for face to face conversations, make the Purple Communications standard inapplicable in the cited employment context.

Needless to say, this decision will have an immense impact on how healthcare providers will be able to stem abuse of their email systems, as well as increase the risk of litigation over distracted healthcare providers.

Finally, as always, policies need to be reviewed and modified in light of this decision so that the enforcement of such policies do not run afoul of the NLRA and result in additional risk management considerations.