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Top Five Labor Law Developments for January and February 2020

1. The Trump Administration announced its intent to re-nominate National Labor Relations Board (NLRB) member Marvin Kaplan and former member Lauren McFerran. President Donald Trump is preparing a nomination package to ensure the NLRB does not lose its quorum this summer. Currently, the NLRB is operating with only three members, the minimum it needs to maintain a quorum. Member Marvin Kaplan’s term is set to expire in August 2020, and his departure would leave the NLRB without a quorum. President Trump plans to re-nominate Kaplan, as well as Obama-appointed NLRB member Lauren McFerran, whose term expired in December 2019. If the nominations take place as reported, McFerran will again be the lone Democrat on the NLRB.

2. The NLRB’s top lawyer advocated for expanding damages imposed on unions found to have breached their duty to fairly represent members. The NLRB’s General Counsel (GC), Peter Robb, stated his position in a motion filed in a matter commenced by a union member alleging his union breached its duty of fair representation, in violation of the National Labor Relations Act (NLRA). See American Postal Workers Union Local 1901, Case 10-CB-231385. The case arose after a union failed to process its member’s grievance regarding her termination from the U.S. Postal Service. After the member filed an unfair labor practice charge against the union, the GC issued a complaint and notice of hearing against the union. The union did not respond to the action. In support of his default judgment motion, the GC argued the union should pay all damages a worker may have suffered as a result of a union’s failure to process grievances. While granting the default judgment motion, the NLRB issued a more limited damage award against the union, confined to damages that could be linked to the union’s malfeasance, the NLRB’s typical measure of damages in such cases. Declining to expand the damages award, the NLRB reasoned that the appropriateness of such an expanded remedy should be resolved after a full briefing by the affected parties, and “there has been no such briefing in this case.” While not successful in this case, the GC’s position suggests he may seek increased damages against unions in similar future cases.

3. On February 18, Kickstarter employees voted to join a union, reportedly becoming the first white-collar tech industry workers to do so. A bargaining unit of 88 accountants, creative content directors, and senior software designers were among the employees who voted, 47-36, for union representation. The organizing campaign at Kickstarter, an online crowdfunding company, began in 2018, after management removed from the company’s website a campaign for a comic book called “Always Punch Nazis,” after the comic book received negative news coverage. The decision to remove the campaign was controversial among employees and reportedly contributed to the union organizing. Kickstarter refused the union’s request for voluntary recognition, instead opting for an NLRB election, in which the union prevailed. Among the union’s stated goals for a first contract are a more equitable compensation structure, greater diversity and inclusion in hiring, more professional growth opportunities, and greater employee input in product development.

4.The NLRB found that an employer who took over a unionized company could set new initial employment terms governing the predecessor’s workforce, despite committing NLRA violations when taking over the new company. Stein, Inc., 369 NLRB No. 10 (Jan. 28, 2020). The employer took over an operation comprised of employees in three bargaining units, represented by separate unions. When the employer won the contract to perform the work, it decided to merge the three bargaining units into one unit represented solely by the union that represented most of the predecessor’s employees. The employer recognized that union as the sole representative and provided the employees with a handout setting forth new terms and conditions of employment. After the employer and the recognized union entered into a collective bargaining agreement covering all employees, one of the former unions requested recognition and demanded to bargain, which the employer refused. The former union filed an unfair labor practice charge against the employer and the recognized union. Relying on existing NLRB law, an administrative law judge (ALJ) found the employer forfeited the right to set initial terms and conditions of employment, because it committed a prior unfair labor practice charge, i.e., failing to recognize the existing unions. While the NLRB agreed with the ALJ that the employer violated the NLRA by failing to recognize the existing union, it reversed the ALJ, finding the employer could still set initial terms and conditions of work. Unlike NLRB cases where an employer completely repudiated employees’ Section 7 rights, the NLRB said the employer merely “questioned the trifurcation of the employees into three separate bargaining units.” Accordingly, the NLRB found the employer could set initial terms and conditions of work, but it must bargain with the existing union.

5. The NLRB found an employer did not violate the NLRA by removing union flyers from its bulletin boards in employee breakrooms, based on the employer’s contention that the flyers violated a provision in an expired collective bargaining agreement. Valley Health System, LLC, 369 NLRB No. 16 (Jan. 30, 2020). The employer and union were party to expired collective bargaining agreements (CBAs) that permitted the union access to bulletin boards in employee breakrooms regularly utilized by bargaining unit employees, provided the union did not post material critical of the hospital or employees. During bargaining for a successor agreement, the union posted flyers criticizing what it perceived as the employer’s slow pace during negotiations. The employer removed the flyers, citing the CBA provision. An ALJ found (among other things) that the employer acted unlawfully, notwithstanding the CBA provision, because the provision allowed the employer unfettered discretion to control the union’s messages, in violation of the NLRA. Reversing the ALJ in relevant part, the NLRB found the employer did not violate the NLRA and the CBA provision must be upheld as the status quo, because the provision was the product of a mutual agreement between the parties and there was no basis to ignore it until the parties agreed on a different CBA provision.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 64


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.

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....

 Megann K. McManus Associate Labor and Preventive Practices

Megann K. McManus is an Associate in the New York City, New York, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Ms. McManus’ practice also involves traditional labor law. She has experience handling unfair labor practice charges, labor arbitrations, and other labor proceedings. She has represented clients in state courts, as well as before administrative agencies including the National Labor Relations Board and the New York State Public Employment Relations Board...