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Top Five Labor Law Developments for March 2019

The National Labor Relations Board (NLRB) ruled that a private-sector union may not require non-member objectors (known as Beck objectors) to pay for its political lobbying expenses. United Nurses and Applied Professionals (Kent Hospital)367 NLRB No. 94 (Mar. 1, 2019). Several of the employer’s workers had resigned their union memberships and objected to the assessment of dues and fees for activities unrelated to the union’s representation of employees. While the employees had paid reduced dues and fees, the amounts they were assessed included union lobbying expenses. One of the employees filed an unfair labor practice charge at the NLRB alleging the inclusion of such expenses was unlawful. The NLRB found the lobbying expenses could not be charged to the non-members because the expenses were not related to “collective bargaining, contract administration, and grievance adjustment,” the only categories of expenses that may be charged to non-members under the U.S. Supreme Court’s decision in Communications Workers of America v. Beck, 487 U.S. 735 (1988).

NLRB Chairman John Ring wrote to members of the U.S. House of Representatives to dispel rumors that the Board was “outsourcing” its review of public comments on the NLRB’s proposed joint-employer rule. Ring stated in a March 22 letter to the leaders of the Committee on Education and Labor and the Subcommittee on Health, Employment, Labor, and Pensions that the NLRB had not, and would not, outsource its review of the public comments. (However, the NLRB is outsourcing categorization of the comments.) Ring also reported that the response to the proposed rule was “outstanding,” with more than 29,000 comments received. If adopted as the final rule, the proposed rule will overrule Browning-Ferris and joint-employer status will be found only where two entities actually share or codetermine employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.

The Department of Labor (DOL) announced a proposal to limit when it will find companies to be joint employers under the Fair Labor Standards Act (FLSA). Under the proposal, the DOL would find joint employer liability under the FLSA only where both companies hire, fire, and supervise employees, set their pay, and maintain employment records. The proposal likely will exclude as joint employers many franchisors and companies that hire contract labor. The DOL’s proposal will require a 60-day public comment period (ending June 10, 2019) before DOL can take the next step toward finalization.

The NLRB General Counsel’s office is encouraging its regional officials to rely less on investigative subpoenas in unfair labor practices investigations. In a March 13 memorandum to NLRB Regional Directors (RD), NLRB Associate to the General Counsel Beth Tursell instructed officials that, in their discretion, they may rely less on investigative subpoenas in unfair labor practice cases, as a way to resolve more quickly, and with less litigation, the underlying unfair labor practice charges. Tursell stated that RDs could note a charged party’s lack of cooperation as an alternative to issuing subpoenas, which could result in an adverse inference being made against that party. However, as Tursell stated in the memorandum, “whether any failure to cooperate is significant will be dictated by the particular facts and circumstances of the case.” See Memorandum OM 19-05, “Noting Respondents Failure to Cooperate with ULP Investigations in Subsequently-Issued Complaints.”

The U.S. Supreme Court declined to hear an appeal asking the Court whether a hospital employer violated the National Labor Relations Act (NLRA) when it restricted off-duty workers from displaying picket signs on hospital property. Capital Med. Ctr. v. NLRB, et al.No. 16-1320 (D.C. Cir.), cert. denied, No. 18-608 (U.S. Apr. 1, 2019). The U.S. Court of Appeals for the District of Columbia Circuit had upheld a decision of the Obama NLRB that the employer could not prohibit workers from picketing on hospital property without demonstrating the workers’ actions affected patient care. The Supreme Court’s decision left in place the NLRB’s and Circuit Court’s rulings, which provided employees greater leeway to engage in protected concerted activity. However, that likely is not the last word on the subject; NLRB General Counsel Peter Robb has signaled he would like to argue to the NLRB that Capital Med. Ctr. should be overruled. See Memorandum GC 18-02, “Mandatory Submissions to Advice” (Dec. 1, 2017).

Jackson Lewis P.C. © 2020National Law Review, Volume IX, Number 102


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....