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Top Five Labor Law Developments for December 2018

A U.S. Circuit Court of Appeals partially upheld the Obama-era standard the National Labor Relations Board (NLRB) adopted for determining whether two entities are joint employers under the National Labor Relations Act (NLRA). Browning-Ferris Industries of Cal., Inc. v. NLRB, No. 16-1028 (D.C. Cir. Dec. 28, 2018). The case came before the Court on appeal from the Board’s decision in Browning-Ferris, 362 NLRB 186 (2015). In that case, the Board held it would not only consider a putative employer’s direct and exercised control, but also its indirect and reserved control over employees, when determining joint-employer status. The employer’s petition for review (appeal) of the Browning-Ferris decision was pending before the Court when the Board reversed Browning-Ferris in late-2017. The appeal resumed after the Board vacated its reversal and reinstated Browning-Ferris in early-2018. While upholding the Board’s indirect/reserved control standard, the Court found the Board misapplied the standard, and remanded the case for further consideration. Meanwhile, the Board has proposed to enshrine the direct/exercised control standard in its rules, which would effectively overturn Browning-Ferris yet again. The Board invited the public to submit comments on its proposed rule, now due by January 14, 2019. The Court’s decision contains some admonishments the Board likely will need to follow in promulgating its rule. (See our article, Joint Employment under NLRA: Interpreting D.C. Circuit Court’s Browning-Ferris Decision.)

The NLRB’s General Counsel (GC) criticized the Board’s proposed joint-employer rule, discussed above. Board GC Peter Robb made public comments stating the proposed rule “did not go far enough,” because, among several things, it fails to state how much control a business must have over the details of an employee’s work before the business is considered a joint employer. The “direct and immediate” control standard is insufficient, Robb stated, because it does not make clear, for example, whether that control must be exerted over all terms and conditions of work, or over just some.

The Board’s Strategic Plan for fiscal years 2019 through 2022, released jointly by NLRB Chairman John Ring and GC Peter Robb, announced four primary goals. “(1) achieving a 5% increase over each of four years in timeliness of case processing of unfair labor practice charges, (2) achieving resolution of a greater number of representation cases within 100 days of the filing of an election petition, (3) achieving organizational excellence and productivity, and (4) managing agency resources efficiently and in a manner that instills public trust.” In support of the Plan, the General Counsel issued Memorandum GC 19-02, “Reducing Case Processing Time,” which states how the Plan affects the Board’s regional offices and its various departments and divisions.

The NLRB’s General Counsel found an employer did not violate the NLRA by maintaining a broadly worded “civility” rule or by terminating an employee who violated the rule. Wilson Health, 09-CA-210124 (Adv. Mem. issued June 20, 2018, released Dec. 17, 2018). The employer’s rule required, among other things, that employees not complain about coworkers and “find[] solutions to problems rather than complaining about them or blaming someone for them.” An employee repeatedly complained about and spoke negatively about coworkers and was terminated for refusing to sign off on and violating the civility rule. The NLRB’s Division of Advice found the rule was a lawful “Category 1” rule under Boeing Co., 365 NLRB No. 154 (2017). The rule’s justification, maintaining civility, outweighed the rule’s negligible impact on employee rights, the Advice Division found. As a result, the employee’s termination did not violate the NLRA.

An employer cannot base its delay in reinstating unfair labor practice strikers on a contractual obligation with a temporary employee staffing agency, the Board held. Alaris Health at Castle Hill, 367 NLRB No. 52 (Dec. 21, 2018). After striking employees made an unconditional offer to return to work, the employer explained that it could not reinstate the strikers, because it contractually committed to staffing agencies supplying temporary replacements that it would guarantee the replacements’ employment for a number of weeks. The Board ruled that the employer’s refusal to reinstate the strikers based on the contracts with the agencies violated the NLRA. To find otherwise, the Board held, would place “a significant burden on the employees’ right to strike,” and would allow the employer “to delay reinstatement or to obtain [time] during which he is not required to pay backpay.” (In Pacific Mutual Door, 278 NLRB 854, 856 (1986), the Board held that fulfillment of a short, multi-day contract obligation with an employment agency that supplied the employer with temporary replacements for strikers was a lawful reason for refusing to reinstate returning economic strikers until the obligation was fulfilled, and not at the end of the strike.)

Jackson Lewis P.C. © 2019


About this Author

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

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-...

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 management in dozens of counter-organizing drives and participated in countless unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and other federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

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....