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).