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Top Five Labor Law Developments for December 2017

  1. In Hy-Brand Industrial Contractors, 365 NLRB No. 156 (Dec. 14, 2017), the National Labor Relations Board overruled Browning-Ferris Industries, 362 NLRB No. 186 (2015), an Obama-era decision that held two entities are joint employers under the National Labor Relations Act where the second employer exercises indirect control over another entity’s employees or where the second employer has reserved a right of control, even if unexercised. In Hy-Brand, the Board reversed course, returning to prior precedent finding joint employer status only where the second entity actually has exercised control over the other entity’s employees and has done so “directly and immediately.” Applying the new standard, the Board found Hy-Brand Industrial Contractors and Brandy Construction Co. were joint employers and, as a result, were jointly and severally liable for employee terminations the Board found were unlawful. For more on the decision, see our article, Labor Board Returns to Pre-2015 Joint Employer Standard.

  2. On December 15, the Board issued its decision in PCC Structurals, 365 NLRB No. 160, in which it overruled Specialty Healthcare, 357 NLRB 934 (2011). Under Specialty Healthcare, if a union petitioned for an election among a group of employees, contending the smallest appropriate unit must include additional employees, the Board would find only the larger unit appropriate if the excluded employees shared an “overwhelming” community of interest with the petitioned-for group. In PCC Structurals, the Board replaced the “overwhelming community-of-interest” standard with the pre-Specialty Healthcare “community-of-interest” test for determining whether a larger bargaining unit is appropriate. The Board remanded the case to a NLRB Regional Director to reconsider the Director’s prior rejection of the employer’s bid to expand a proposed unit. Subsequent to the Board’s decision, the NLRB General Counsel issued a memorandum instructing Directors on how to apply PCC Structurals in “currently active” cases. For more on the decision and the memo, see our blog posts, Board Overrules Specialty Healthcare and New NLRB GC Opens Door to Possible Widespread Bargaining Unit Changes.

  3. On December 15, the Board decided in Raytheon Network Centric Systems, 365 NLRB No. 161, to reverse its recent decision in E.I. du Pont de Nemours, 364 NLRB No. 113 (2016). In du Pont, the Board held that an employer must bargain with a union before taking unilateral action requiring the exercise of employer discretion or when the action follows a past practice that commenced pursuant to a management rights clause in an expired collective bargaining agreement. According to the Board in Raytheon, employer actions do not constitute a change requiring bargaining if the action is “similar in kind and degree” with a past practice, regardless of whether the action involves discretion or arose under a collective bargaining agreement. Applying the reinstated standard, the Board in Raytheon held the employer’s changes to employee healthcare were a continuation of similar unilateral changes made during the same time every year for more than a decade.

  4. In its first reversal of an Obama-era precedent, the NLRB on December 11 held that Board administrative law judges can approve unfair labor practice settlement agreements, even if the Board’s General Counsel and the charging party object, as long as the settlement is “reasonable” under the Board’s analysis in Independent Stave, 287 NLRB 740 (1987). UPMC, 365 NLRB No. 153 (Dec. 11, 2017). The Board’s decision reversed U.S. Postal Service, 364 NLRB No. 116 (2016), in which the Obama-era Board held Board ALJ’s were no longer able to accept a charged party’s settlement terms if the Board GC or charging party objected, unless the settlement represented a “full remedy for all the violations alleged in the complaint.” In UPMC, the employer offered to settle a single-employer allegation by guaranteeing the performance by its affiliate, Presbyterian Shadyside, of any remedial requirements in an underlying unfair labor practice judgment against the two entities. While an ALJ accepted the guarantee, the union and GC objected. Upholding the ALJ’s decision, the Board held that UPMC’s settlement offer was reasonable, since its guarantee had the same effect in binding both entities as would a single-employer determination by the Board.

  5. On December 13, the Board published a Request for Information seeking public comments on the “quickie election” representation rules. The RFI seeks input on whether the Board should maintain, amend, or rescind the 2014 rules, which, among other things, reduced the time between the date of the filing of a representation petition and the NLRB-conducted election. This reduced the amount of time employers had to communicate with employees about union issues. Interested parties may submit comments until February 12, 2018. It remains to be seen what action, if any, the Board will take after reviewing comments. For more on the RFI, see our blog post, Labor Board Asks: Retain, Modify, or Rescind ‘Quickie Election’ Rules?

Jackson Lewis P.C. © 2018

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

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...

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Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.

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

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...

617-367-0025
Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney
Principal

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....

212-545-4080
Associate

Christopher M. Repole is an Associate in the New York City, New York, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counsel.

While attending law school, Mr. Repole served as Notes and Comments Editor of the Brooklyn Journal of Corporate, Financial and Commercial Law and as Vice President of the Moot Court Honor Society, for which he received the Moot Court Honor Society Award.

Prior to...

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