Today’s Labor Updates:
Let the chips fall: when is an impasse an impasse?
Union Membership is Getting Younger and More Educated
Summary of NLRB Decisions for Week of November 30 – December 4, 2015
DOL Sends ‘Persuader’ Rule to OMB for Review; Seeks Publication of Final Rule in March 2016
Let the chips fall: when is an impasse an impasse?
Barnes & Thornburg LLP – Gerald F. Lutkus
USA December 14 2015
When is an impasse a legal impasse? That’s a decision that courts and the NLRB have kicked around for many years. Last week, the United States Court of Appeals for the D.C. Circuit affirmed an NLRB decision finding that an employer jumped the gun in declaring that an impasse had been reached largely because its conduct and statements at the table differed from post-bargaining letters declaring a last and final position and impasse.
In Mike-Sells Potato Chip Company v. NLRB, No. 14-1021, the court noted that the company had presented a close case and even commiserated that its “predicament was unfortunate,” but the court concluded that the NLRB was right in finding that the parties were not at impasse in bargaining and as a result, the company could not implement the terms of its last and final contract offer.
The NLRB largely adopted the administrative law judge’s (ALJ) opinion in coming to the conclusion that no impasse existed. As noted in the ALJ’s opinion, the parties had reached some agreements and they “went back and forth” on three central issues — pensions, health benefits and route sales drivers’ commissions. According to the ALJ, when the parties met for the last time before the contract’s expiration date, the company did not indicate that day that it had made a final offer or that an impasse had been reached. Both parties indicated they were open to scheduling further negotiating sessions, even though as it turned out they were unable to schedule another meeting date prior to the expiration date.
The ALJ noted that two days after the last bargaining session, the company informed the union in writing that their last offer at the table was in fact a last and final offer. Two days thereafter, according to the ALJ, again in writing, the company declared that they were at impasse.
The ALJ’s opinion emphasized that the union had made concessions and that where a party has already made significant concessions indicating a willingness to compromise further, it would be wrong to find impasse merely because the party making concessions was unwilling to capitulate immediately.
Among other things on appeal, the company argued that the ALJ focused on progress on peripheral matters instead of focusing on the parties’ positions on the key issues of pension, health benefits and commissions.
The D.C. Circuit noted on review that “it is often said by both the Board and courts that an impasse exists when both parties believe bargaining has reached a dead end.” However, to require the parties to reach a “contemporaneous understanding” or a “mutual agreement” as to impasse would mean that “an employer would virtually never be entitled to implement a final offer. It would, in effect, require the union’s consent.”
The law regarding impasse, the court explained, is that “if an employer maintains a firm position, and has made clear that acceptance of its position on particular issues is essential to agreement, a union’s last minute movement, short of agreement, will not avoid an impasse.” However, “if an employer remains firm in collective bargaining as to one or more essential issues and credibly declares a last offer in the negotiations, a last offer that is consistent with and follows logically from its negotiating position, a union’s failure to agree creates an impasse.”
Thus, in Mike-Sells, the court carefully examined the company’s offers at the table and the Union’s response to each of the three central issues and determined that “it would not have been apparent to a neutral observer” that at the close of the bargaining on November 14, “the parties had run into a brick wall.” Moreover, at no time at the bargaining table did the company declare its positions to be a last and final offer or to assert that the parties were at impasse. Indeed, the letter declaring impasse came about “abruptly, seemingly inconsistent with the tenor of the negotiations” just four days prior.
The D.C. circuit concluded that “Under those circumstances, we think the Board’s determination that an impasse had not been reached is a legitimate finding (a mixed question of fact and law). Petitioner had not displayed the requisite firmness on the key issues in negotiations, it had not made a last offer – a necessary if not a sufficient condition – nor declared an impasse in the crucial bargaining session.”
A copy of the court’s decision is available here.
Union Membership is Getting Younger and More Educated
Roetzel & Andress – Matthew D. Austin
USA December 14 2015
After decades of declining membership, unionization rates are increasing thanks in large part to the unionization of non-traditional workforces. In the past, unions found success organizing workers in manufacturing, hospitality, and construction trades. Today, its success is found through technology workers, adjunct professors, digital media, and if unions have their way, Uber drivers.
Huffington Post editorial workers are the latest digital media employees seeking to unionize. These 350 workers that stream video operations at HuffPost Live “overwhelmingly” signed authorization cards to showcase their support for union representation. These workers join similar digital media employees at Salon, Vice Media, ThinkProgress, The Guardian US, and Al Jazeera America as the new face of a rebounding union movement.
Summary of NLRB Decisions for Week of November 30 – December 4, 2015
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov (link sends e-mail) or 202‑273‑1991.
Summarized Board Decisions
U.S. Xpress Enterprises, Inc., and U.S. Xpress, Inc. (10-CA-141407; 363 NLRB No. 46) Chattanooga, TN, November 30, 2015.
Citing Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), and D. R. Horton, Inc., 357 NLRB No. 184 (2012), a Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by maintaining and enforcing an arbitration agreement that requires employees, as a condition of employment, to waive their rights to purse class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. Member Miscimarra dissented and would find that the maintenance and enforcement of agreements between employers and employees that waive class and collective actions do not violate Section 8(a)(1), especially when they contain an opt-out provision, as here.
Charge filed by an individual. Administrative Law Judge Ira Sandron issued his decision on July 16, 2015. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Convergys Corporation (14-CA-075249 and 14-CA-083936; 363 NLRB No. 51) Hazelwood, MO, November 30, 2015.
A Board panel majority consisting of Chairman Pearce and Member McFerran affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) of the Act by requiring prospective employees to sign job applications that included a provision waiving their Section 7 rights to bring or otherwise participate in a class, joint, or collective action, and by attempting to enforce the waiver in court. Member Miscimarra dissented, arguing (among other points) that the Board does not have authority to dictate the procedures for litigating claims that do not arise under the Act and that the Act protects employees’ rights to bring claims individually. The panel majority also affirmed the Judge’s finding that the Respondent violated Section 8(a)(1) by enforcing its mandatory waiver through its motion to strike the class and collective allegations in a wage-hour lawsuit filed by the Charging Party. In dissent, Member Miscimarra would find that the Respondent’s motion to strike was protected by the First Amendment’s Petition Clause.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on October 25, 2012. Chairman Pearce and Members Miscimarra and McFerran participated.
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International Longshore and Warehouse Union, AFL-CIO and International Longshore and Warehouse Union, Local 8, AFL-CIO and International Longshore and Warehouse Union, Local 40, AFL-CIO (ICTSI Oregon, Inc.) (19-CC-100903; 363 NLRB No. 47) Portland, OR, November 30, 2015.
A unanimous panel of the Board affirmed the Administrative Law Judge’s finding that Respondents International Longshore and Warehouse Union, AFL-CIO, and International Longshore and Warehouse Union, Local 8, AFL-CIO (collectively, the Respondents), violated the Act by, since September 2012, inducing and encouraging longshoremen employed by ICTSI Oregon, Inc. to engage in a deliberate work slowdown at Terminal 6 of the Port of Portland, with an unlawful “cease doing business” object, namely forcing or requiring ICTSI and the steamship carriers that call on Terminal 6 to seek the Port’s relinquishment of control over the dockside reefer work at Terminal 6 for the benefit of workers represented by Respondent ILWU Local 8.
The Board ordered the Respondents to cease and desist from inducing or encouraging employees of ICTSI Oregon, Inc., or any other employer to engage in a slowdown or otherwise refuse to handle or work on goods or refuse to perform services if an object is to force ICTSI Oregon, Inc., the carriers who call on Terminal 6, or any other person, to cease doing business with the Port of Portland. The Board also ordered the Respondents to post a notice regarding the cease and desist order at their offices and dispatch hall, and to mail a copy of the order to all of their members who have worked at Terminal 6 since September 1, 2012.
There were no exceptions filed to the Administrative Law Judge’s dismissal of the complaint allegations against Respondent ILWU Local 40.
Charges filed by ICTSI Oregon, Inc. Administrative Law Judge Jeffrey D. Wedekind issued his decision on May 30, 2014. Chairman Pearce and Members Hirozawa and McFerran participated.
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New York University (02-CA-120698; 363 NLRB No. 48) New York, NY, November 30, 2015.
The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain with the Union over the effects of its decision to change the job duties and job descriptions of certain unit employees working in library clerical positions. To remedy the violation, the Board ordered the Respondent to bargain with the Union upon request over the effects of its decision, to rescind, upon request by the Union, the effects that were visited upon employees, and to remove all adverse comments from the job evaluations of affected employees related to its failure and refusal to bargain.
Charge filed by Union of Clerical, Administrative, and Technical Staff (UCATS) at NYU, Local 3882, NYSUT, AFT, AFL-CIO. Administrative Law Judge Lauren Esposito issued her decision on April 21, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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Price-Simms, Inc. d/b/a Toyota Sunnyvale (32-CA-138015; 363 NLRB No. 52) Sunnyvale, CA, November 30, 2015.
A Board panel majority consisting of Chairman Pearce and Member McFerran granted the General Counsel’s motion for summary judgment, finding that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to waive their right to maintain class or collective actions in all forums. The majority also found that the Respondent unlawfully enforced that provision by filing a motion in California Superior Court to compel the Charging Party to submit his class action wage and hour claim to individual arbitration. In a dissenting opinion, Member Miscimarra would find that the agreement and the Respondent’s enforcement are lawful, arguing that the NLRA creates no substantive right for employees to engage in class treatment of non-NLRA claims, that a waiver of non-NLRA claims does not infringe on any NLRA rights or obligations, and that enforcement of non-NLRA class action waivers is warranted by the Federal Arbitration Act.
Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
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Brinker International Payroll Company L.P. (27-CA-110756; 363 NLRB No. 54) Denver, CO, December 1, 2015.
In accord with the Administrative Law Judge’s application of D.R. Horton, 357 NLRB No. 184 (2012) and Murphy Oil USA Inc., 361 NLRB No. 72 (2014), a Board panel majority consisting of Chairman Pearce and Member McFerran found that the Respondent violated Section 8(a)(1) by maintaining and enforcing an arbitration agreement that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. The majority also found that the Respondent violated Section 8(a)(1) by maintaining the arbitration agreement because employees reasonably would believe that it bars or restricts their right to file unfair labor practice charges with the Board. In so doing, the majority rejected the Respondent’s arguments that the complaint was time-barred under Section 10(b), that the General Counsel failed to properly allege that the Respondent violated the Act by maintaining an arbitration agreement that would reasonably be interpreted as preventing employees from filing charges with the Board, and that the judge erred by failing to issue a stay pending the outcome of related civil litigation. The majority amended the judge’s recommended remedy consistent with the Board’s decision in Murphy Oil and ordered the Respondent to notify the two courts in question that it has rescinded or revised the arbitration agreement and no longer opposes the employees’ lawsuit on the basis of the arbitration agreement. Member Miscimarra dissented in part for the reasons explained in his partial dissenting opinion in Murphy Oil, but agreed with the majority that the arbitration agreement unlawfully interferes with the filing of charges with the Board.
Charges filed by The Sawaya & Miler Law Firm. Administrative Law Judge Lauren Esposito issued her decision on June 4, 2014. Chairman Pearce and Members Miscimarra and McFerran participated.
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Citigroup Technology, Inc. and Citicorp Banking Corporation (parent), a subsidiary of Citigroup, Inc. (12-CA-130742; 363 NLRB No. 55) Tampa, FL, December 1, 2015.
Applying Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), and D.R. Horton, Inc., 357 NLRB No. 184 (2012), a panel majority consisting of Members Hirozawa and McFerran affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to agree to resolve certain employment-related disputes exclusively through individual arbitration, thus waiving their right to pursue class, collective, or other representative actions. Member Miscimarra dissented from this finding. Citing his partial dissent in Murphy Oil, Member Miscimarra would find that the agreement does not violate Section 8(a)(1). In addition, the panel unanimously found, contrary to the Administrative Law Judge, that the Respondent did not violate Section 8(a)(3) when it presented its arbitration policy to the American Arbitration Association in response to a former employee’s demand for class arbitration. Accordingly, the panel dismissed that allegation.
Charge filed by an individual. Administrative Law Judge Donna N. Dawson issued her decision on December 23, 2014. Members Miscimarra, Hirozawa, and McFerran participated.
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Amalgamated Transit Union, Local 689 (05-CA-141077; 363 NLRB No. 43) Forestville, MD, December 1, 2015.
The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) and (1) when it issued a negative performance review to an employee for engaging in protected union activity. Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on August 25, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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Buchanan Marine, L.P. (29-UC-000570; 363 NLRB No. 58) Staten Island, NY, December 2, 2015.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Regional Director’s finding that the Employer’s tugboat captains are not supervisors within the meaning of Section 2(11) of the Act, and therefore denied the Employer’s petition to clarify the unit to exclude those captains. In doing so, the Board majority affirmed the Regional Director’s application of the standard in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), and did not rely on previous precedent applying different standards. Finally, the Board majority found that the record does not show that the Employer holds its captains accountable for other employees’ performance. Member Miscimarra dissented, and would have found that the disputed captains responsibly direct and assign employees, and therefore are statutory supervisors.
Petition filed by Buchanan Marine, L.P., to clarify a unit represented by Local 333, United Marine Division, International Longshoremen’s Association, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Salem Hospital Corporation, a/k/a The Memorial Hospital of Salem County (04-CA-130032; 363 NLRB No. 56) Salem, NJ, December 2, 2015.
The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing to timely notify the Union and afford it an opportunity to bargain over the effects of its decision to close the inpatient obstetrics unit and discontinue the HealthStart program, and failing to provide the Union with the information it requested in its January 15 and May 9, 2014 letters, with the exception of the first portion of May 9 request 4. The Board also adopted the Judge’s recommendation for a limited backpay remedy under Transmarine Navigation Corp., 170 NLRB 389. The Board also ordered the Respondent to mail a copy of the Notice to the terminated employees, and the panel majority consisting of Chairman Pearce and Member McFerran ordered the Board’s notice be read aloud to the Respondent’s employees by the Respondent’s chief executive officer or, at the Respondent’s option, by a Board agent in that officer’s presence. Member Miscimarra disagreed with the majority that a notice-reading remedy is warranted in this case.
Charge filed by Health Professionals and Allied Employees, AFT/AFL-CIO. Administrative Law Judge Susan A. Flynn issued her decision on February 27, 2015. Chairman Pearce and Members Miscimarra and McFerran participated.
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Babcock & Wilcox, Nuclear Operations Group, Inc. (08-CA-138022; 363 NLRB No. 50) Barberton, OH, December 3, 2015.
The Board granted the Respondent’s motion to dismiss the complaint because it found that deferral to the grievance-arbitration procedure in the parties’ collective-bargaining agreement is appropriate under Collyer Insulated Wire, 192 NLRB 837 (1971), and its progeny. The Board did not apply the modified prearbitral deferral standard that it articulated in Babcock & Wilcox Construction Co., 361 NLRB No. 132 (2014), because that standard only applies prospectively, and this case was pending at the time that Babcock & Wilcox, supra, was decided. The Board found that the single allegation that the Respondent violated Section 8(a)(3) and (1) by issuing a warning letter to a union steward for engaging in protected union activity did not, by itself, establish that there is a claim of employer animosity to employees’ exercise of protected statutory rights. Additionally, the Board found that although the parties’ collective-bargaining agreement lacks language that expressly provides for the resolution of claims of unjust discipline less than discharge, the fact that the parties have previously used the grievance-arbitration procedure to process such claims indicates that they both consider such disputes to be subject to the grievance-arbitration procedure.
Charge filed by International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local #900. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Casino Pauma (21-CA-125450; 363 NLRB No. 60) Pauma Valley, CA, December 3, 2015.
The Board affirmed the Administrative Law Judge’s finding that the Board has jurisdiction over the Respondent, a casino owned and operated by the Pauma Band of Mission Indians. The Board also affirmed the Judge’s findings that the Respondent violated Section 8(a)(1) by maintaining and enforcing a rule prohibiting employees from distributing literature in the “guest areas” of the casino; prohibiting employees from distributing literature near the casino’s main entrance and threatening them with discipline for doing so; and disciplining an employee for distributing union literature during non-working hours and in a non-working area. A panel majority consisting of Member Miscimarra and Member McFerran found it unnecessary to pass on the Judge’s finding that Respondent violated Section 8(a)(3) by disciplining an employee for the distribution of union literature. In dissent, Member Hirozawa would find that violation.
Charges filed by Unite Here International Union. Administrative Law Judge Ariel L. Sotolongo issued his decision on June 4, 2015. Members Miscimarra, McFerran, and Hirozawa participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Rhino Northwest, LLC (19-RC-152947) Fife, WA, November 30, 2015. A Board panel unanimously denied the Employer’s Request for Review of the Regional Director’s finding that the petitioned-for unit of the Employer’s riggers, excluding other stagehands, is an appropriate unit. The Regional Director found that the riggers are a readily-identifiable group of workers who share a community of interest because they perform the unique job function of suspending and removing apparatus from above performance stages, are separately supervised, and receive a different rate of pay. Further, the Regional Director found, and the Board panel agreed, that given the significant differences between the riggers and other stagehands, including separate supervision, different job functions, and different terms and conditions of employment, namely a higher hourly wage and shorter work hours, the Employer failed to demonstrate that the riggers share an overwhelming community of interest with the other stagehands, which the Employer sought to include. Petitioner—Local No. 15, International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United States, Its Territories and Canada, AFL-CIO, CLC. Chairman Pearce and Members Hirozawa and McFerran participated.
Lift Truck Sales and Services, Inc. (14-RD-153982) Kansas City, MO, December 2, 2015. The Board granted the Building Materials, Excavating, Heavy Haulers, Drivers, Warehousemen and Helpers, Local Union No. 541, affiliated with International Brotherhood of Teamsters’ (the Union) Request for Review of the Regional Director’s decision and direction of election. The Regional Director applied Master Slack Corp., 271 NLRB 78 (1984) to find that the decertification petition had not been tainted by prior settled unfair labor practice charges, which were remedied by the terms of an informal Board settlement agreement and the Employer’s actions pursuant to the agreement. The Regional Director, applying the Poole Foundry and Machine Co., 95 NLRB 34 (1951), line of cases, also found that the petition was timely filed because the parties had a reasonable time to bargain for a successor contract after entering into the settlement agreement and prior to the filing of the petition. The Employer admitted in the settlement agreement that it violated Sections 8(a) (1) and (5) of the Act “by engaging in bad faith bargaining designed to frustrate the parties’ ability to achieve agreement on a new collective bargaining agreement” and acknowledged that the unfair labor practices admitted were sufficient to taint a previous decertification petition and require the dismissal of that petition. The Union argued that the Regional Director incorrectly applied the Master Slack causation analysis in finding that the instant petition had not been tainted by the prior settled unfair labor practices, and instead should have applied the standard set forth in Lee Lumber Material Corp., 322 NLRB 175, 178 (1996), which presumes an unlawful taint based on a prior refusal to recognize or bargain that must be rebutted by an employer showing that employee disaffection arose after the employer resumed its recognition of the union and bargained for a reasonable period of time without committing any additional unfair labor practices that would detrimentally affect the bargaining unit. The Union, distinguishing this case from Poole Foundry, asserted that based on Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), a reasonable period of time for bargaining is a minimum of 6 months following the resumption of bargaining in good faith, pursuant to the settlement agreement, and that the Regional Director erred by not equating the settlement agreement with an adjudication by the Board. The Union emphasized that the Board has treated settlement agreements containing an admission of unlawful conduct as the functional equivalent of a Board adjudication of unlawful conduct, citing TruServ Corp., 349 NLRB 227 (2007). The Union argued that to the extent that there is an absence of precedent as to whether the 6-month minimum insulated bargaining period established in Lee Lumber would apply where a settlement of unfair labor practices contains an admission of bad faith bargaining, the Board should grant review to address this matter. Petitioner—an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
Shamrock Foods Company (28-CA-150157) Phoenix, AZ, December 1, 2015. The Board denied the Respondent’s request for special permission to appeal the Administrative Law Judge’s order denying the Respondent’s petition to revoke a subpoena duces tecum. The Board found that the Respondent failed to establish that the judge abused his discretion. Charge filed by Bakery, Confectionary, Tobacco Workers, and Grain Millers’ International Union, Local Union No. 232, AFL-CIO, CLC. Members Miscimarra, Hirozawa, and McFerran participated.
Denmar Electric Corporation (02-CA-147463) New York, NY, December 1, 2015. The Board approved the parties’ formal settlement agreement and issued an order requiring the Respondent Employer to bargain with the Union as the collective-bargaining representative of a unit of its mechanical engineers. Pursuant to the settlement agreement, the order requires the parties to meet at least twice a month for a minimum of two hours in the presence of a stenographer and to extend the Union’s status as the exclusive bargaining representative for an additional nine months upon the commencement of bargaining. Charge filed by Local 3, International Brotherhood of Electrical Workers. Chairman Pearce and Members Hirozawa, and McFerran participated.
A&K Signal and Utility Company, LLC (28-CA-151930) Phoenix, AZ, December 1, 2015. No exceptions having been filed the October 21, 2015 decision of Administrative Law Judge Eleanor Laws finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the Judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charge filed by International Union of Operating Engineers, Local No. 428, AFL-CIO.
Trane Puerto Rico, Inc. (12-CA-144599) San Juan, PR, December 1, 2015. No exceptions having been filed the October 15, 2015 decision of Administrative Law Judge Robert A. Giannasi finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the Judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charge filed by Congreso de Uniones Industriales de Puerto Rico.
Cedars-Sinai Medical Center (31-CA-143038) Los Angeles, CA, December 1, 2015. A Board panel majority consisting of Members Hirozawa and McFerran denied the Respondent’s request for special permission to appeal the Administrative Law Judge’s ruling. The Board found that the judge did not abuse his discretion by precluding as irrelevant the Respondent’s proposed testimony by its recruitment manager and a linguistics expert concerning how employees would reasonably interpret the Respondent’s arbitration agreement. Member Miscimarra, dissenting, would grant the Respondent’s request. In his view, although the Board’s test purports to be an objective one, the proposed testimony could assist the Board’s determination and should be evaluated. Moreover, Member Miscimarra expressed his disagreement with the current standard, as set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004). Charge filed by an individual. Members Miscimarra, Hirozawa, and McFerran participated.
Lear Renosol Selma Manufacturing Facility (15-CA-140072) Selma, AL, December 2, 2015. A Board panel majority consisting of Members Hirozawa and McFerran denied the Employer’s petition to revoke an investigative subpoena duces tecum and several subpoenas ad testificandum. The Board found that the subpoenas sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoenas. In addition, the Board rejected the Employer’s argument that the subpoenas must be revoked or a protective order entered because the Region’s investigation is in violation of the Memorandum of Understanding Between OSHA and NLRB, 40 FR 26083 (June 20, 1975) (the MOU). The Board noted that the MOU states in relevant part that “[w]here a charge involving issues covered by Section 11(c) of the OSH Act has been filed with the General Counsel and a complaint has also been filed with OSHA as to the same factual matters, the General Counsel will, absent withdrawal of the matter, defer or dismiss the charge.” The Board found, however, that the MOU does not require the Region to determine whether to defer or dismiss such charges, or engage in consultations with the Solicitor of Labor concerning deferral or dismissal, without having investigated the facts and circumstances surrounding the allegations.
In dissent, Member Miscimarra stated that he would grant the petition to revoke, without prejudice to the Region’s reissuance of one or more of the subpoenas following the consultation prescribed in the MOU. In his view, although the MOU does not explicitly indicate when compliance with these procedures is to occur, in light of its stated goal of obviating duplicate litigation, he believes the MOU requires the General Counsel to comply with these procedures before the Region conducts any investigation.
Charge filed by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America. Members Miscimarra, Hirozawa and McFerran participated.
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Appellate Court Decisions
International Union of Operating Engineers, Local 627, Board Case No. 17-CB-072671 (reported at 361 NLRB No. 93) (10th Cir. decided December 3, 2015)
In an unpublished judgment, the court enforced the Board’s order in full.
The union represents approximately 1,200 employee-members, primarily in the construction industry, from district offices in Tulsa, Oklahoma and Oklahoma City, and operates an exclusive hiring hall. To operate the hall, the union maintains an out-of-work referral list to track which members need work and to determine who should be referred to new jobs. In early 2011, a union member who utilized the hiring hall filed a charge with the Equal Employment Opportunity Commission and later, with two other union members, filed a lawsuit against the union alleging discrimination. After she was laid off from a job, she had numerous contacts with the hiring hall attempting to secure jobs from the referral list. During this period, the union engaged in conduct that the Board (Chairman Pearce and Members Miscimarra and Hirozawa) found, in agreement with the administrative law judge, violated Section 8(b)(1)(A) and (2) of the Act by denying her requests to examine the referral list, removing her from the list, refusing to allow her to re-register on the list, and refusing to stamp her Oklahoma Employment Security Commission’s work-search book.
On review, the court concluded that substantial evidence supported each of the Board’s unfair-labor-practice findings. In rejecting the union’s contentions, the court explained: “Instead of challenging the sufficiency of the evidence, the Union criticizes the [Board]’s interpretation of the evidence in the record and the [Board]’s decision to credit one version of events over another. We decline the invitation to usurp the role of the agency fact-finder.”
The court’s judgment is available here (link is external).
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Administrative Law Judge Decisions
Jack in the Box, Inc. (32-CA-145068; JD(SF)-48-15) Nationwide. Administrative Law Judge Mary Miller Cracraft issued her decision on December 1, 2015. Charge filed by an individual.
Grand Medical Transportation, LLC ( 22-CA-140495; JD(ATL)-22-15) Irvington, NJ. Administrative Law Judge Ira Sandron issued his decision on December 2, 2015. Charge filed by Med-Life M&M.
Michigan Bell Telephone Company (07-CA-150005; JD-66-15) Grand Rapids, MI. Administrative Law Judge Arthur J. Amchan issued his decision on December 3, 2015. Charge filed by Local 4034, Communications Workers of America (CWA), AFL-CIO.
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DOL Sends ‘Persuader’ Rule to OMB for Review; Seeks Publication of Final Rule in March 2016
By Brennan W. Bolt on December 9, 2015 Posted in Department of Labor, Persuader Rules
The Department of Labor’s latest regulatory agenda now sets a target date of March 2016 for the publication of its final rule addressing the “advice exception” to the so-called “persuader rule” in the Labor-Management Reporting Disclosure Act of 1959 (LMRDA). On December 7, 2015, the DOL finally sent its final rule to the Office of Management and Budget for review, one of the final steps before the rule can be published.
As the proposed rule has significant monetary and legal implications for employers, employers should continue to prepare for the expected rule change by evaluating their options for compliance and/or challenging the new rule once it is published.
How does the proposed change to the persuader rule affect employers?
The LMRDA currently provides that employers must report to the DOL each time they engage a consultant to persuade employees directly or indirectly regarding employees’ rights to organize or bargain collectively (i.e., “persuader activity”). If employers fail to comply with any of the LMRDA’s reporting requirements, they could face jail for a year and a $10,000 fine.
However, the LMRDA carves out from the reporting requirements an “advice exception,” which has consistently been interpreted to exclude an employer’s engagement of labor counsel to assist them with organizing campaigns so long as counsel has no direct contact with employees and the employer is free to accept or reject its counsel’s recommendations.
If the DOL’s final rule tracks the proposed rule it released in June 2011, it will narrow the advice exception significantly. As a result, employers who engage attorneys to assist in organizing campaigns will now have to file publicly available reports with the government detailing all the labor work, regardless of whether it is considered persuader activity or not, that the law firm performs for the employer.
Moreover, if an employer is a federal contractor, the new persuader rule would run in conjunction with Executive Order 13494, which requires federal contractors to exclude from any billing, claim, proposal, or disbursement the costs incurred in undertaking activities to persuade employees regarding their right to organize. Many expect the government to look to the new definition of reportable persuader activity under the LMRDA to define further the scope of “persuader activities” in Executive Order 13494.
Are there any legal bases for challenging the final rule?
Not surprisingly, the final rule is not without its critics, and there has been some speculation that DOL has taken its time in order to bolster the rule against potential legal challenges. Specifically, critics claim that the proposed rule is improper because it effectively writes the advice exception out of the statute. Moreover, the American Bar Association and the Association of Corporate Counsel assert that the proposed rule is also inconsistent with the rules of professional conduct pertaining to lawyer-client confidentiality. They and others believe that the proposed rule forces lawyers to disclose privileged attorney-client information and that it will discourage employers from seeking legal assistance during union organizing campaigns.
Opponents also claim the new persuader rule will place enhanced burdens on employers to comply, and they take exception to the DOL’s estimate that compliance with the rule will only cost all employers and their lawyers about $826,000 a year. Indeed, others project the increased burden from the narrowing of the “advice exception” to cost employers over $200 million a year, with a former chief economist at the DOL estimating that the new rules will cost approximately $60 billion over a 10 year period.
What can employers do now about the expected final rule?
Clearly, employers do not need to make any changes in their LMRDA reporting based on the expected rule changes yet, but they should continue to prepare for the expected rule change by evaluating their options for compliance and/or challenging the new rule once it is published.