December 19, 2019
On December 16, 2019, the National Labor Relations Board issued a trio of rulings that reversed decisions issued during the Obama administration. Each case was decided by a 3-1 majority, with Member Lauren McFerran dissenting.
New York Labor and Employment Law Report
December 19, 2019
On December 16, 2019, the National Labor Relations Board issued a trio of rulings that reversed decisions issued during the Obama administration. Each case was decided by a 3-1 majority, with Member Lauren McFerran dissenting.
"Quickie" Elections Are Not So "Quickie" Any More: NLRB Amends Union Representation Election Procedures
December 18, 2019
On December 18, 2019, the National Labor Relations Board published a final rule in the Federal Register amending its union representation election procedures to eliminate several aspects of the "quickie" election rule that became effective on April 14, 2015. The "quickie" election rule provided unions with a significant advantage in the representation process by, among other things, shortening the time period between the filing of a petition and the scheduling of an election and limiting the issues that may be litigated by employers in a pre-election hearing. The final rule will become effective on April 16, 2020.
October 4, 2019
On September 23, 2019, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking that addresses the long-standing issue of whether undergraduate and graduate students who perform services for compensation (including teaching or research) at private colleges and universities can form a union under the National Labor Relations Act (NLRA). Under the proposed rule, student workers would not be able to organize based on the Board’s position that such individuals do not meet the definition of “employee” under Section 2(3) of the NLRA because their relationships with their colleges and universities are predominantly educational, not economic.
August 15, 2019
On August 12, 2019, the National Labor Relations Board (“NLRB” or the “Board”) published proposed rules with the goal of protecting “employees’ statutory right of free choice on questions concerning representation.” The proposed rules would amend three Board policies and practices that are not currently set forth in its rules and regulations: (1) the “blocking charge policy”; (2) the “voluntary recognition bar”; and (3) the standard of proof required to convert a Section 8(f) collective bargaining relationship into a Section 9(a) bargaining relationship in the construction industry.
July 13, 2016
Temporary, contracted-for, or leased employees who are employed by a “supplier,” but are assigned to work at another employer’s premises, currently comprise as much as 5% of American workers, and are among the fastest growing sectors. Noting this trend, the National Labor Relations Board, in its Miller & Anderson, Inc. decision this week, announced a new standard that makes it much easier for unions to organize these temporary employees working at another employer’s facility; and further, allows them to be organized in a single bargaining unit together with the host employer’s employees who perform similar functions, if both groups share a “community of interest.” The case addressed a petition by the Sheet Metal Workers for a union election among a group of (a) Miller & Anderson’s workers at its Pennsylvania construction site, together with (b) a second group of sheet metal workers employed by a separate company, Tradesmen International, who had supplied additional workers at the site on a contract basis. Under the Board’s newly-liberalized “joint employer” standards promulgated in its recent Browning-Ferris decision, Miller & Anderson was deemed to be the joint employer of its own sheet metal workers on the site and also those provided by contract with Tradesmen International. By contrast, however, Tradesmen International had no employment relationship at all with the Miller & Anderson employees. Both groups -- and both employers -- were included by the Board in a single unit, on the ground that they shared a “community of interest” since they worked side-by-side under common working conditions. Thus, the Board’s decision allowed a single bargaining unit of employees even where there would be two different employers at the bargaining table -- with potentially differing interests -- without the consent of both employers. Further, it authorized for the first time a bargaining unit with two employers, where one (the “supplier” of temporary help) employed only a portion of the unit, but had no employment relationship with the remainder. The Board’s majority, however, brushed aside concerns raised by dissenting Board Member Miscimarra that this result would be “unworkable” and lead to “confusion and instability,” holding instead that each employer will be expected to bargain over “jointly employed workers’ terms and conditions which it possesses the authority to control.” This decision should be viewed together with the Board’s newly-expanded joint-employer standards articulated in Browning-Ferris (holding that “indirect” or “potential” control over terms and conditions suffices to show joint employer status; “actual” or “immediate” exercise of control are no longer required). Together, these cases allow proliferation of combined units including not only employees directly employed by an employer, but also temps performing similar functions, in circumstances that may involve only indirect control by the host company, or incidental collaboration with the temp agency. The decision appears to be yet another element of the Board’s program to broaden opportunities for unionization. At a minimum, employers who are supplied by agencies with temporary, contract or leased personnel -- and agencies who supply these personnel -- must be wary that these arrangements are now targets for union organizing, and that the user of these personnel is more likely to be viewed as jointly employing both groups. Employers using these personnel, and agencies who supply them, should closely review their contractual arrangements, and the level of control assigned to each employer in practice, with these issues in mind.
July 4, 2016
Last month, the United States Court of Appeals for the Fifth Circuit affirmed the lower court’s decision upholding the National Labor Relations Board’s “quickie” election rule. As we previously reported, the final rule, among other things, significantly reduces the time period between the filing of an election petition to the date of the election, narrows the issues that may be raised at a pre-election hearing, and requires disclosure of employees’ personal information, including personal telephone numbers and e-mail addresses. The rule was effective as of April 14, 2015. The Associated Builders and Contractors of Texas, Inc. (“ABC”) mounted the challenge to the rule’s lawfulness, asserting that the Board both exceeded its authority under the National Labor Relations Act (the “Act”) and violated the Administrative Procedure Act. ABC first argued that the rule unlawfully postpones the resolution of certain voter eligibility issues until after the election is complete, in contravention of the Act. The Fifth Circuit rejected this argument, reasoning that under the plain language of the Act the purpose of the pre-election hearing is to determine whether a question of representation exists -- not to resolve all voter eligibility issues. Next, ABC contended that the rule arbitrarily and capriciously requires the disclosure of employees’ personal information to the petitioning union in violation of the Administrative Procedure Act. The Fifth Circuit found that the Board had sufficiently considered employees’ privacy concerns as well as the burden on employers when it expanded the disclosure requirement, and thus, the requirement was not arbitrary and capricious in violation of the Administrative Procedure Act. ABC also challenged the rule on the grounds that faster elections interfere with an employer’s right to free speech during organizing campaigns. In rejecting this argument, the Fifth Circuit found that there is no language in the Act which requires a specified waiting period between the filing of the petition and the date of the election. Additionally, the Fifth Circuit noted that the Board’s Regional Directors, who are responsible for setting the date of the election, are to consider the interests of both parties when setting an election date, which may include an employer’s opportunity to communicate its views concerning unionization to its employees. Now that the Fifth Circuit has joined an earlier decision from the United States District Court for the District of Columbia upholding the Board’s “quickie” election rule, employers must be prepared to respond before an election petition is even filed. The time employers have from date of petition to date of election has been effectively cut in half (from about 6 weeks to about 3 weeks), making a successful counter campaign extremely difficult to mount without advance planning and preparation. We recommend regular supervisory training and the creation of a tentative campaign blueprint that is ready for immediate activation in the event of a union petition. As before, an employer’s best opportunity to remain union-free comes from early awareness of organizing activity and an effective pre-petition campaign that discourages employees from signing the number of union authorization cards needed for the union to trigger an NLRB election.
August 17, 2015
In a long-awaited decision issued on August 17, 2015, the five-member National Labor Relations Board (“Board”) unanimously shut down an attempt by Northwestern University’s scholarship football players to become the first group of college athletes to form a labor union. This Board holding vacates the direction of election issued by an NLRB Regional Director in March 2014 and dismisses the representation petition filed by the College Athletes Players Association (“CAPA”), but does not address the fundamental issue of whether the players are “employees” under the National Labor Relations Act (“Act”). Instead of deciding this issue, the Board declined to assert jurisdiction over this case based on its conclusion that it “would not promote stability in labor relations” and therefore would not effectuate the policies of the Act. The Board noted that it had never been asked to assert jurisdiction in a case involving college athletes, nor had there ever been a petition for representation of a unit of a single college team, or even a group of college teams. The Board also pointed out that the players in this case did not “fit into any analytical framework” the Board had used in other cases involving college students (such as graduate student assistants or student janitors and cafeteria workers) because this case involved student athletes who receive scholarships to participate in what traditionally has been regarded as an extracurricular activity. The Board also distinguished these scholarship players from professional athletes, because the scholarship players are required to be enrolled full time as students and meet various academic requirements. The Board further observed that bargaining units in professional sports have never been limited to a single team’s players – they have always included the players of all teams in the entire league. Therefore, the Board concluded that there was no precedent that required it to assert jurisdiction, and that it was free to exercise its discretion to decline jurisdiction over this case. In justifying its decision to decline jurisdiction, the Board explained that Northwestern is a member of the National Collegiate Athletic Association (“NCAA”), which has a “substantial degree of control over the operations of individual member teams, including many of the terms and conditions under which the scholarship players (as well as walk-on players) practice and play the game.” Under these circumstances, the Board determined that its assertion of jurisdiction over only Northwestern and its scholarship football players would not promote stability in labor relations across the NCAA. The Board further explained that Northwestern competes in the NCAA Football Bowl Subdivision (“FBS”), where 108 of the 125 member schools are public institutions that are not covered by the Act. As a result, the Board does not have jurisdiction over the vast majority of the FBS teams. In fact, the Board pointed out that because Northwestern is the only private school in the 14-member Big Ten Conference, it “cannot assert jurisdiction over any of Northwestern’s primary competitors.” The Board cited this as an additional reason why its assertion of jurisdiction over only Northwestern and its scholarship football players would not promote stability and uniformity in labor relations. Although the Board’s exercise in restraint in this decision comes as somewhat of a surprise given this Board’s activism in expanding the reach of the Act, the Board made clear that its decision does not “preclude a reconsideration of this issue in the future,” and should be interpreted narrowly. In fact, the Board seemingly opened the door for consideration of a broader proposed bargaining unit than scholarship football players at one university by stating that its decision is not intended to “address what the Board’s approach might be to a petition for all FBS scholarship football players (or at least those at private colleges and universities).” So, the landscape of collegiate athletics will remain the same for now, but this may not be the last unionizing effort of student athletes that we see.
April 13, 2015
On April 6, the National Labor Relations Board ("NLRB") General Counsel issued a guidance memorandum to explain the changes in the procedures for processing union representation petitions under the NLRB's final rule on "quickie" elections that was adopted on December 15, 2014. Although a resolution was passed by Congress to block the NLRB from implementing the quickie election rule, President Obama vetoed the resolution, paving the way for the NLRB's final rule to take effect on April 14, 2015. Although the practical effect of the NLRB's final rule will likely be a shorter time period between the date when a representation petition is filed and the date when the election is held, the General Counsel noted in the guidance memorandum that "neither the final rule, nor this memorandum, establishes new timeframes for conducting elections or issuing decisions." The guidance memorandum supersedes any provisions contained in the NLRB's manuals and other guidance to the extent that those provisions are inconsistent with the guidance memorandum. For a summary of the NLRB's final rule, see our December 15, 2014 blog post.
December 15, 2014
Recent activity by the National Labor Relations Board has significantly changed the landscape of union organizing campaigns and representation elections. Attorneys from Bond, Schoeneck & King's Labor and Employment Department will conduct two free webinars this week to explain these recent developments and their impact on employers. Each webinar is scheduled for 45 minutes. Ray Pascucci will conduct a webinar on December 17 at 3:00 p.m. to review the Board's final rule on "quickie" union representation elections and provide some practical recommendations to prepare for the possibility of a fast-track union organizing campaign. Andy Bobrek will conduct a webinar on December 18 at 11:00 a.m. to review the Board's decision in Purple Communications, Inc., holding that employees have a presumptive right to use their employer's e-mail system during non-working time to communicate about union organizing and discuss their terms and conditions of employment.
December 14, 2014
On December 15, the National Labor Relations Board's final rule amending the current procedures for handling union representation elections (which has become known as the "quickie" or "ambush" election rule) was published in the Federal Register. The final rule will become effective on April 14, 2015. Although Board Chairperson Mark Pearce hailed the new representation election procedures as "a model of fairness and efficiency for all," the new procedures provide unions with a significant advantage in representation elections in a number of ways. Among other things, the new rule shortens the time period between the filing of a petition and the scheduling of an election, requires employers to provide the union with a list of employees in the proposed bargaining unit earlier in the process, requires employers to provide to the union personal telephone numbers and e-mail addresses for employees in the proposed bargaining unit, and limits the issues that may be litigated by employers in a pre-election hearing. The impending implementation of the final rule makes it even more important for employers to be able to recognize potential union activity as early as possible and to have a plan in place to respond quickly to a union representation petition once it is filed. This is the second time the Board has issued a final rule amending union representation election procedures. The Board's first final rule was issued on December 22, 2011, but it was declared to be invalid by the U.S. District Court for the District of Columbia on May 14, 2012, because the Board lacked a quorum when it voted on the final rule. The Board initially appealed the District Court's decision, but subsequently withdrew its appeal and re-issued its proposed rule in February of 2014. The final rule was approved by Board Chairperson Mark Pearce and Board Members Kent Hirozawa and Nancy Schiffer. Board Members Philip Miscimarra and Harry Johnson dissented and voted against the issuance of the final rule. The final rule:
Currently, the general time period from the filing of the petition to the representation election is approximately five to six weeks. The amendments contained in the final rule will likely shorten that time period to approximately two to three weeks, which will give employers much less time to communicate with employees regarding the drawbacks of unionization, to explain the realities and risks of the collective bargaining process, and to dispel the myth that unionization will automatically result in better wages and benefits. Accordingly, it will be even more important for employers to train their supervisors to recognize and report some early warning signs of union activity and to develop a plan to respond quickly to a union representation petition once it is filed. Ray Pascucci, one of my colleagues in the Labor and Employment Department of Bond, Schoeneck & King, will be conducting a webinar on the Board's final rule on Wednesday, December 17, at 3:00 p.m. Ray will review each element of the final rule and provide some practical recommendations to prepare for the possibility of a fast-track union organizing campaign. More details will follow.
NLRB Overrules 2007 Decision and Holds That Employees Have a Right to Use Their Employer's E-Mail System for Union Organizing
December 11, 2014
On December 11, 2014, the National Labor Relations Board ("Board") issued a 3-2 decision (with Board Members Philip Miscimarra and Harry Johnson dissenting) in Purple Communications, Inc., holding that employees have a presumptive right to use their employer's e-mail system during non-working time to communicate regarding union organizing and to engage in other protected concerted activities under Section 7 of the National Labor Relations Act ("Act"). The Board's decision overruled its 2007 decision in Register Guard. Purple Communications' electronic communications policy provided that its electronic communications systems and equipment were "to facilitate Company business" and that "all such equipment and access should be used for business purposes only." The policy also prohibited employees from using its systems and equipment to engage "in activities on behalf of organizations or persons with no professional or business affiliation with the Company" and to send "uninvited e-mail of a personal nature." There was no dispute that, under the Board's 2007 Register Guard decision, the policy was perfectly lawful as written. In the fall of 2012, the Communications Workers of America ("Union") filed petitions to represent employees at seven of Purple Communications' facilities. After an election was held, the Union filed objections to the results of the election at two facilities and an unfair labor practice charge, alleging (among other things) that the electronic communications policy interfered with the employees' Section 7 rights. The Administrative Law Judge, relying on the Board's 2007 Register Guard decision, found the electronic communications policy to be lawful. The Board majority, however, found that the Register Guard decision improperly placed too much weight on the property rights of employers in their own e-mail systems and too little weight on the Section 7 right of employees to communicate in the workplace about their terms and conditions of employment. The Board majority also believed that the Register Guard decision failed to recognize the importance of e-mail as a means by which employees engage in protected communications. Therefore, the Board majority overruled its Register Guard decision and held that employees have a presumptive right to use their employer's e-mail system during non-working time to engage in communications protected by Section 7 of the Act. The Board made clear in its decision that this presumption applies only to employees who have been granted access to the employer's e-mail system in the course of their work and does not require an employer to provide access to its e-mail system to employees who do not otherwise need it. In addition, the Board held that an employer may rebut the presumption and justify a total ban on non-business use of its e-mail system by demonstrating that "special circumstances make the ban necessary to maintain production or discipline." Virtually no guidance is provided in the decision regarding what those "special circumstances" might be, but the Board majority stated that "we anticipate that it will be the rare case where special circumstances justify a total ban on non-work e-mail use by employees." The Board remanded the case back to the Administrative Law Judge for a determination of whether Purple Communications could successfully rebut the presumption and justify the scope of its prohibition on the personal use of e-mail. The restriction that employees may use their employer's e-mail system for Section 7 purposes only during non-working time raises a significant question: can an employer monitor employee use of its e-mail systems during working time to ensure compliance with this restriction and discipline employees who are found to have engaged in Section 7 activity through e-mail during working time, without risking potential liability for unlawful surveillance or discrimination based on union activities? According to the Board's decision, an employer may continue to notify employees that they should have no expectation of privacy in their use of the employer's e-mail system and may continue to monitor the use of its e-mail system for legitimate business purposes. However, the Board stated that this monitoring is lawful only if "the employer does nothing out of the ordinary." For example, the Board's decision leaves open the possibility that an employer's increased monitoring during a union organizing campaign or an employer's particular focus on employees who are known union activists could result in potential liability under Sections 8(a)(1) or 8(a)(3) of the Act. Members Miscimarra and Johnson both wrote strong dissenting opinions. In the view of the dissenters, an employer's interests in controlling the use of its own electronic communications system should prevail over employees' interests in using that system for union organizing activities, especially in light of the availability of other electronic communications networks such as employees' own personal e-mail and social media sites. Many employers' electronic communications policies already permit employees to engage in some limited personal use of their e-mail systems as long as that personal use does not interfere with the employee's work duties or the work duties of other employees. This type of policy may very well be lawful even under the Board's Purple Communications decision, because, on its face, it likely would not be interpreted to prohibit Section 7 protected activity during non-working time. At this point, however, if your electronic communications policy contains a blanket prohibition on the use of your e-mail system for personal reasons, you may want to consider potential revisions to your policy. Andrew Bobrek, one of my colleagues in the Labor and Employment Department of Bond, Schoeneck & King, will be conducting a webinar on the Board's Purple Communications decision on Thursday, December 18, at 11:00 a.m. More details will follow.
June 16, 2014
For the first time in New York State, a Regional Director for the National Labor Relations Board ("NLRB") has asserted NLRB jurisdiction over a New York charter school, and ordered an election for a unit of approximately 35 teachers at the school. The decision, Hyde Leadership Charter School Brooklyn, Case No. 29-RM-126444, preempts the New York Public Employment Relations Board ("PERB") from asserting jurisdiction, and conflicts with prior PERB decisions holding that charter schools are public entities for labor relations purposes. The Hyde Leadership decision involved a representation petition for teachers at a charter school in Brooklyn, New York. On April 14, 2014, the United Federation of Teachers, Local 2 (the "Union"), filed a petition with PERB seeking certification for a unit of approximately 35 teachers at the school. That same day, the school filed a representation petition with the NLRB seeking an election for the same unit of employees. Because the National Labor Relations Act excludes “any state or political subdivision thereof,” the NLRB was tasked with deciding the public or private nature of the charter school. To establish jurisdiction over the Hyde Leadership school, the NLRB would have to determine that the school was not a “political subdivision” of the state under the Supreme Court’s standard set forth in its NLRB v. Natural Gas Utility District of Hawkins County decision. Under the Hawkins County decision, an entity is a political subdivision if it is created directly by state so as to constitute a department or administrative arm of the government, or if it is administered by individuals who are responsible to public officials or to the general electorate. Applying the Hawkins County standard to the Hyde Leadership school, the NLRB acknowledged the blend of public and private characteristics embedded in New York charter schools and the New York State Charter Schools Act (“Charter Schools Act”). Factors suggesting a public character include: the Board of Regents, a public entity, issues the charter and can revoke the charter upon discovering certain problems such as fiscal mismanagement; the school is funded almost entirely with public funds; the language of the Charter Schools Act refers to charter schools as independent and autonomous public schools and states that charter school employees are public employees for purposes of New York’s public employment relations law; the charter schools are subject to certain public officers laws; and New York City charter schools are subject to audit by the city comptroller. However, factors suggesting a private character include: private individuals create and submit the charter agreement for approval (although this can optionally be done in conjunction with a public entity); except for laws specified in the Charter Schools Act, the charter schools are exempt from “all other laws and regulations governing public or private schools”; the charter schools are non-public for designation of textbooks, health services, student transportation, and other services; charter school employees are employees of the “education corporation” that runs the charter school, not the public school district; and there is no requirement that the board of directors for the charter schools be appointed or elected by any public entity or include any public officials. The Regional Director weighed the factors and concluded that the Hyde Leadership school was not a political subdivision under the Hawkins County test and therefore was subject to NLRB jurisdiction. Specifically, the Regional Director held that the charter school was not “created by the state” because private individuals applied to establish the charter school, and it was not an “administrative arm of the government” because the governance and control of the charter school “vested solely in the private incorporators” rather than in the public entities. Moreover, the school was not administered by individuals who are responsible to public officials or the general electorate, as none of the school’s governing trustees are appointed by public officials. Accordingly, the Regional Director asserted NLRB jurisdiction over the school and directed an election. Although this does not establish a “bright line” rule that all New York charter schools will necessarily be subject to NLRB jurisdiction (and the Union may still challenge the Regional Director's decision), the factors that contributed to the holding are largely statutory, and may compel a similar conclusion for other charter schools in New York.
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