August 21, 2018

August 21, 2018

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August 20, 2018

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Top Five Labor Law Developments for May 2018

  1. The U.S. Supreme Court has ruled that class action waivers in employment arbitration agreements do not violate federal law. Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP et al. v. Morris et al., No. 16-300; National Labor Relations Board v. Murphy Oil USA, Inc., et al., No. 16-307 (May 21, 2018). The Supreme Court’s decision resolves the circuit split on whether class or collective action waivers contained in employment arbitration agreements violate the National Labor Relations Act. They do not, the Court ruled in a 5-4 decision. Justice Neil Gorsuch wrote for the majority of the Court. Justice Ruth Bader Ginsburg dissented, describing the majority holding as “egregiously wrong.”
  2. The National Labor Relations Board (NLRB) on May 22 commenced the process to establish a joint employer standard by rulemaking. The Board filed a proposal in a federal report of rules being considered by governmental agencies, a procedural step that presumably will precede a notice soliciting public comments on what the joint employer standard should be. Following the Board’s filing, U.S. Senators Elizabeth Warren (D-Mass.), Bernie Sanders (I-Vt.), and Kirsten Gillibrand (D-N.Y.) wrote to Board Chairman John Ring expressing opposition to the use of rulemaking to address the joint employer issue. The NLRB’s current joint employer standard was set in Browning-Ferris Industries, 362 NLRB No. 186 (2015). In that case, the Board announced that it will find two entities are joint employers where one exercises direct or indirect control over the other’s employees, or where one entity has reserved rights of control over the other’s employees, even if unexercised. The Browning-Ferris standard was reinstated when the NLRB on February 26 vacated its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017). In the next edition of this monthly summary, we will discuss the Board affirming on June 6 its decision to vacate Hy-Brand.
  3. On May 4, applying its new standard for determining whether employees excluded from a proposed bargaining unit may be added to the unit, the NLRB decided against an employer. PCC Structurals, 19-RC-202188 (May 4, 2018). In PCC Structurals, 365 NLRB No. 160 (2017), the Board rejected the Obama-era Board’s standard for an employer to demonstrate that employees excluded from a petitioned-for bargaining unit should be added to the unit — a major victory for the employer. Under the Obama-era Specialty Healthcare, 357 NLRB No. 83 (2011), employers seeking to add workers to a petitioned-for unit were required to show the workers had not just a “community of interest” with those in the petitioned-for unit, but that the community of interest was “overwhelming.” In 2017, in PCC Structurals, the Board returned to the community of interest standard, and remanded the case to a Board Regional Director (RD) to apply the reinstated standard. However, on remand, the RD upheld the union’s petitioned-for unit of welders, finding the employer had not shown that all of the employer’s production and maintenance employees should be included in the unit with the welders because they did not share a community of interest with the welders. As the union received a majority of the votes cast in the election, the RD certified the union as the representative of the welders. The employer appealed to the NLRB in Washington, D.C.
  4. On May 9, the NLRB held an employer did not violate the NLRA when the employer’s safety manager recorded union activities while acting within the scope of his duties to record safety hazards. Brasfield & Gorrie, LLC, 366 NLRB No. 82 (May 8, 2018). The employer, a construction engineering company, required its safety managers to record safety hazards on its construction site. When workers at the site picketed, the safety manager video-recorded employees blocking an employee entrance to the site, for a total of about five seconds. The employees did not have picket signs or any outward signs they were actually picketing, but they caused a number of non-picketing employees to turn away from work after being unable to enter the site. The Board held the safety manager was justified in taking the videos, since there was no evidence the recording was done for union surveillance purposes, and because the recording was within the scope of his job duties.
  5. The NLRB’s Division of Advice released a memorandum on May 15 finding that an employer did not violate the NLRA when it refused to allow union representatives to record the employer’s team meetings and investigatory interviews. GE Appliances, Haier, 21-CA-202535 (released May 15, 2018). The Advice Division found the refusal did not violate the NLRA, because while employees may have a right to record such meetings, union representatives do not necessarily share that right. The Advice Division found that allowing recordings of such meetings would hamper future discussions between the employer and union and adversely affect the collective bargaining process.
Jackson Lewis P.C. © 2018

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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
Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta
Shareholder

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.

404-586-1835
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
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...

617-367-0025
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