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Top Five Labor Law Developments for June 2017

In an amicus brief filed with the U.S. Supreme Court, the U.S. Department of Justice reversed itself and argued for the legality of mandatory arbitration agreement provisions waiving employees’ rights to bring class actions under the National Labor Relations Act. The parties have asked the Court to settle a Circuit Court split on whether such agreements are lawful under the Act. In its petition in NLRB v. Murphy Oil USA Inc., No. 16-307, the Obama DOJ had asked the Court to settle that split by holding such provisions are unlawful under the Act. According to the DOJ’s brief reversing that position, since President Donald Trump took office, the DOJ has “reconsidered the issue and has reached the opposite conclusion.” The consolidated cases are Ernst & Young LLP et al. v. Morris et al., No. 16-300; NLRB v. Murphy Oil USA Inc., No. 16-307; and Epic Systems Corp. v. Lewis, No. 16-285.

President Trump has nominated Marvin Kaplan and William Emanuel to fill the two openings on the National Labor Relations Board. Senator Lamar Alexander (R-Tenn.), the chairman of the Senate committee that will consider the nomination, has said he plans to push for a speedy confirmation process. If Kaplan and Emanuel are confirmed, the Board will have a 3-2 Republican majority and is expected to reverse many pro-employee rulings.

The Board ordered a rerun election after upholding a union’s claims that the employer’s voter list contained multiple defects under the Board’s new election rules. RHCG Safety Corp., 365 NLRB No. 88 (June 7, 2017). The Board concluded that a rerun was required because 90 percent of the addresses on a voter list were inaccurate, the names of at least 15 eligible employees were omitted from the voter list, and the employer did not provide phone numbers for any of its employees. Under the Board’s April 2015 “quickie” election rules, employers must provide an expanded voter eligibility list – including not only the names and home addresses required under the old rule, but also “available” home and cell phone numbers (as well as job titles, work locations, and “available” email addresses). While the employer argued its mistakes and omissions were inadvertent and that the list included all home and cell phone numbers available to the HR department, the Board held the employer’s search for the phone numbers also should have included the files of individual supervisors, who in fact have some additional phone numbers.

In a dissent in Cristal USA, Inc., 365 NLRB No. 74 (May 10, 2017), Board Chairman Phillip Miscimarra has stated his belief that the Board should reverse Specialty Healthcare, 357 NLRB 934 (2011). The Board majority in Cristal relied on Specialty Healthcare in affirming a Regional Director’s bargaining unit determination. The majority held the petitioned-for production employees constituted an appropriate unit, despite the fact that the employer’s other production employees and warehouse employees shared the same facility-wide terms and conditions of employment. The larger unit would not be appropriate, the majority held, because the petitioned-for employees did not share an “overwhelming” community of interest with the others, given their separate day-to-day supervision and minimal interchange. Miscimarra, arguing for a reversal of the RD decision, wrote that the micro-unit in Cristal would “promot[e] instability by creating a fractured or fragmented unit.” Going further, Miscimarra stated that “Specialty Healthcare was wrongly decided.”

Republicans in Congress have proposed bills that would reverse Board rules and rulings. The U.S. House of Representatives on June 6 proposed two bills that would repeal portions of the Board’s “quickie” election rules. Proposed by Representative Tim Walberg (R-Mich.), the Workforce Democracy and Fairness Act (H.R. 2776) would require that Board elections occur no earlier than 35 days after a Board order directing an election. Representative Joe Wilson (R-S.C.) proposed the Employee Privacy Protection Act (H.R. 2775), in conjunction with Walberg’s bill, to require the Board to ask employers for no more than one form of personal contact information for election voter lists (under current Board rules, employers must provide names, home addresses and “available” home and cell phone numbers). House Education and Workforce Committee Chairwoman Virginia Foxx (R-N.C.) has not yet stated when the Committee will consider the bills. Meanwhile, Senator Johnny Isakson (R-Ga.) has reintroduced a bill in the Senate that would reinstate the pre-2011 standard for determining which employees belong in a particular bargaining unit. While the bill has not advanced in past sessions of Congress, many anticipate it will proceed further in the current Congress.

Jackson Lewis P.C. © 2020National Law Review, Volume VII, Number 202

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About this Author

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-...

212-545-4000
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 campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

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

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....

402-827-4233
Douglas J. Klein, Jackson Lewis, arbitration attorney, labor employment lawyer
Associate

Douglas J. Klein is an Associate in the New York City, New York, office of Jackson Lewis P.C. He is engaged exclusively in the practice of labor and employment law on behalf of management.

Mr. Klein regularly appears in federal and state courts, at arbitrations and mediations and before administrative agencies such as the Equal Opportunity Commission, the National Labor Relations Board, the United States Department of Labor, the New York State Department of Labor, the New York State Division of Human Rights and the New York...

212-545-4000