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Top Five Labor Law Developments for March 2018

  1. The National Labor Relations Board (NLRB) continued to deal with tumult over the “joint-employer” issue. On March 1, the Board asked the U.S. Court of Appeals for the D.C. Circuit to resume considering an appeal of Browning-Ferris Industries, 362 NLRB No. 186 (2015), the NLRB decision that made it easier for unions and employees to prove entities are joint-employers. The request followed a number of reversals by the Board on the joint-employer issue. In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), the Board reversed Browning-Ferris and restored the Board’s previous, more employer-friendly test for determining whether entities are joint employers, and therefore can be held jointly liable for labor law violations. However, the Board subsequently vacated Hy-Brand over concerns that Member William Emanuel had a conflict of interest and should not have participated in the case. Browning-Ferris filed a motion with the D.C. Circuit opposing the Board’s request to reconsider Browning-Ferris, arguing the request was “premature” until the Board rules on a pending motion for reconsideration in the Hy-Brand matter (discussed in #2 below). D.C. Circuit on April 6 granted the Board’s motion to reopen the Browning-Ferris appeal and placed the case in abeyance until the Board rules on the pending motion for reconsideration in Hy-Brand.

  2. The roles individual NLRB members played in the decision to vacate Hy-Brand are being scrutinized. In a March 9 motion for reconsideration, Hy-Brand asked the Board to reconsider its decision to vacate, arguing the NLRB denied the company’s due process rights by excluding NLRB Member William Emanuel from deliberations over the decision to vacate. The motion for reconsideration also argued the decision to vacate was tainted by Member Mark Gaston Pearce’s disclosure at an American Bar Association conference that an “important decision” was coming, just one day before the decision to vacate became public. The motion argued that the disclosure was “an egregious breach of confidentiality and the Board’s deliberative process” and further justified reconsidering the decision to vacate. The request for reconsideration is pending. In a March 22 letter to the Board’s Inspector General, Member Emanuel maintained he did not have a conflict of interest and did not violate NLRB rules when he voted in Hy-Brand.

  3. NLRB General Counsel (GC) Peter Robb stated he will continue efforts to issue joint guidance with the Equal Employment Opportunity Commission (EEOC) on workplace civility, the NLRB announced on March 6. Prior to Robb’s confirmation as GC, EEOC Acting Chairwoman Victoria Lipnic worked on guidance with former Board Deputy General Counsel Jennifer Abruzzo. When the initiative was announced in 2017, the participants explained it as an effort to clarify the line between harassment and protected speech at work. While many employers institute rules requiring workplace civility based on concerns over EEOC litigation, the NLRB has taken a hard line against such rules, finding that they may chill employees from engaging in concerted activity. In Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), the Board strongly suggested that it would look more favorably upon civility and similar rules.

  4. The NLRB avoided cuts to its budget in 2018, but it may face cuts in 2019. In an omnibus Fiscal Year 2018 budget that passed the U.S. Senate and House of Representatives on March 19, the NLRB received $274 million, matching the funding level for 2017. However, the Trump Administration has proposed a 9% cut to the NLRB budget in FY 2019, correlating to a 7.2% decrease in the number of full-time NLRB employees. While the cuts might not be implemented, the Board has taken steps to cut costs. Among other cuts, the Board is planning to announce a hiring freeze and to eliminate certain performance awards. Echoing the changes proposed in the Trump Administration plan, GC Robb has suggested that cuts to NLRB staff may be necessary. The union representing NLRB employees has publicly opposed the possible reduction in staff, arguing the budget cuts are not yet certain.

  5. In a memorandum, the NLRB’s Division of Advice found that an employer violated the National Labor Relations Act (NLRA) when it fired employees who participated in the “Day Without Immigrants” national protest. EZ Industrial Solutions, LLC, 07-CA-193475 (Div. of Advice, Aug. 30, 2017) (released March 2018). Eighteen employees missed work as part of the protest, a nationwide one-day strike organized by groups opposing the Trump Administration’s stances on immigration. The employer fired all the employees who missed work, and the employees filed unfair labor practice (ULP) charges. The Division found the terminations violated the NLRA because the protests leading to the terminations constituted protected concerted activity. It also found the protest, had a direct nexus to the terms and conditions of work because it was in response to the sudden increase in workplace immigration raids in the U.S. The Division also found the employer violated the NLRA by asking one of the protesters about the details of the ULP charge before terminating him.

Jackson Lewis P.C. © 2019


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...

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-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.

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....

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...

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....