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Top Five Labor Law Developments for April 2020

The National Labor Relations Board (NLRB) has signaled its intention to amend its criteria for ordering mail-ballot elections, even as some regional offices are directing mail-ballot elections due to the COVID-19 pandemic. In Western Wall Systems, LLC, Case 28-RC-247464 (Apr. 16, 2020), the NLRB rejected an employer’s appeal of a Regional Director’s dismissal of objections to a mail-ballot election that included numerous reports of irregularities. Among other issues raised, ballots were received late, some voters received duplicate ballots, and at least one voter had difficulty receiving answers to questions posed to the NLRB about the election when calling a regional office. Reviewing the employer’s appeal of the dismissal of the objections and noting its frustration with mail-ballot election irregularities, the NLRB stated, “In our view, … this is yet another case that reveals the many potential problems inherent in mail ballot elections. The Board is therefore open to addressing the criteria for mail balloting in a future appropriate proceeding.” (On May 8, in Atlas Pacific Engineering Co., 27-RC-258742, the NLRB reiterated its interest in reviewing the criteria for mail balloting. The NLRB also lifted its stay of a mail-ballot election that had been ordered by a Regional Director because of the COVID-19 pandemic. Further, it denied the employer’s Request for Review of the Regional Director’s decision to order a mail-ballot election.)

The NLRB’s final rule governing determination of joint-employer status under the National Labor Relations Act (NLRA) went into effect on April 27. This restores the standard that was applied for several decades before the NLRB’s decision inBrowning-Ferris, 362 NLRB No. 186 (2015). Under the final rule, a business must possess and exercise substantial direct and immediate control over at least one essential term and condition of employment of another employer’s employees to be found a joint employer. These essential terms and conditions of employment are wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction. The final rule defines “substantial” direct control as actions that have “a regular or continuous consequential effect” on one of the eight core aspects of a worker’s job listed above. Further, the final rule provides that even where an employer exercises direct control over another employer’s workers, it will not be held to be a joint employer if such control is exercised on a sporadic, isolated, or de minimis basis.

The NLRB explained that its recently adopted “contract coverage” standard does not apply unless the (CBA) contains language explicitly providing the relevant provision(s) survive the contract’s expiration. KOIN-TV, 369 NLRB No. 61 (Apr. 21, 2020). In this case, after a labor contract’s expiration, the employer unilaterally made changes in posting employees’ work schedules and implementing a new requirement that employees complete an annual motor vehicle background check. The union filed an unfair labor practice charge alleging the changes violated the NLRA. Subsequently, the NLRB, in MV Transportation [368 NLRB No. 66 (2019)], held that it will use a “contract coverage” standard to determine if an employer was privileged to make unilateral changes on a topic arguably covered by a CBA. To determine whether the CBA covers the change in question, the NLRB will “examine the plain language of the collective-bargaining agreement to determine whether action taken by an employer was within the compass or scope of contractual language granting the employer the right to act unilaterally.” Interpreting the MV Transportation standard in KOIN-TV, the NLRB first held provisions in an expired CBA do not privilege post-expiration unilateral changes, unless the CBA contains language explicitly providing that the relevant provisions would survive CBA expiration. Applying that holding, the NLRB found the employer’s changes violated the NLRA because, after the CBA expired, it had a duty to maintain the status quo, and the expired CBA did not explicitly make the relevant contract language effective beyond the expiration of the contract.

The NLRB further relaxed restrictions on rules requiring confidentiality of ongoing workplace investigations. Securitas Security Services USA, 369 NLRB No. 57 (Apr. 14, 2020). In Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the NLRB found that rules requiring confidentiality in connection with ongoing investigations are lawful “Category 1” rules under The Boeing Co. [365 NLRB No. 154 (2017)], where, by their terms, the rules apply only for the duration of any investigation. It also provided that, where a rule does not, on its face, apply for the duration of any investigation, a determination is made whether one or more legitimate justifications exist for extending the confidentiality requirement, and whether those justifications outweigh the impact on employees’ NLRA-protected rights. In Securitas Security, the employer was charged with violating the NLRA by directing an individual employee to not discuss an internal investigation. Based on all the facts, the NLRB decided that the restriction was only for the duration of the investigation, primarily relying upon emails between the employee and a human resources manager, one of which said “employees are barred from talking during the time of the investigation in any circumstance.” Employees still have Section 7 rights to discuss workplace issues that may be relevant to an investigation, and even the events at issue in the investigation. However, they may be restricted from discussing information they learned or provided during the course of the investigation. The NLRB also appeared to extend the scope of Apogee, by noting that post-investigation discussions of an investigation, while not banned, can lawfully remain subject to an employer’s work rules prohibiting “disruptive, inappropriate or abusive” workplace investigation.

The NLRB’s Division of Advice found a union’s dues check off authorization card violated the NLRA by unduly restricting an employee’s right to resign union membership. Tutor-Perini Corp., No. 05-CB-229670 (issued July 29, 2019, released Apr. 10, 2020). The union’s card stated an employee could revoke the dues check off authorization only during a short window period. The authorization card also said, “[f]or the effective period of this checkoff authorization … I hereby waive any right I may have to resign my union membership.” An employee filed an unfair labor practice charge against the union alleging it violated the NLRA by maintaining the resignation provision. The Division of Advice concluded the card violated the NLRA, because it “unlawfully requires unit employees to agree to an undue restriction on their right to resign union membership, and imposes the restriction when they may only want to waive their distinct right to cease dues check off.” It noted the distinction between resigning union membership and revoking a dues check off authorization. Employees may want to resign union membership and free themselves of the obligations it imposes, while still wanting to continue financial support of the union. The Division of Advice stated “the Union cannot bootstrap the resignation waiver into its dues checkoff authorization, and thereby make resignation subject to the checkoff’s revocation window period, without violating the voluntariness principle regarding union membership.”

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 139


About this Author

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...

Richard F. Vitarelli Principal Jackson Lewis

Richard F. Vitarelli is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Part of the firm’s national labor practice, he has over two decades of experience representing employers nationally in strategic labor relations, collective bargaining, and union organizing, including in the context of mergers and acquisitions, corporate restructuring and contract administration. He serves as general labor and employment counsel for employers and multi-employer associations in various industries, including construction, manufacturing, health care and senior living, airline, commercial laundry, transportation and distribution, state and local government.

Mr. Vitarelli's practice includes handling sophisticated collective bargaining matters, including national, multi-employer and industry agreements.  His practice also includes representation of employers in multi-employer benefits matters, including multi-employer pension withdrawal liability and Taft-Hartley Fund collection matters. His labor relations practice includes representation of employers covered by the National Labor Relations Act and the Railway Labor Act.

He regularly represents and advises clients in preventive labor relations and counter-organizing. For several years, he served as a managing author of the "Employer’s Guide to Union Organizing Campaigns" (Wolters-Kluwer/Aspen Publishers).

Before joining Jackson Lewis, Mr. Vitarelli served as practice group leader for a major regional firm, overseeing the labor, employment, benefits and immigration practice. He also served as outside general counsel to the Waterbury Connecticut Financial Planning and Assistance Board, a state takeover board created to restructure finances, labor agreements and post-employment benefits. He was a Commissioner of the Connecticut State Ethics Commission from 1997 to 2004 and served as Vice-Chair and Chair-Elect from 2002 to 2004.

While attending law school, Mr. Vitarelli was a member of the Suffolk Transnational Law Review.

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free....

Chad P. Richter, Jackson Lewis PC, Alternative Dispute Resolution, Attorney

Chad Richter is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C.

Mr. Richter’s practice is divided into three areas: (1) preventive counseling and training; (2) traditional labor law; and (3) workplace litigation. With regard to Mr. Richter’s preventive practice, he routinely provides day-to-day advice and counseling to management on a variety of employment law matters including human resource management, traditional labor relations, employment discrimination, wage and hour, privacy, disability leave management, and reductions in force. Mr....