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Volume XI, Number 212

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Top Five Labor Law Developments for May 2021

  1. President Joe Biden has nominated union-side attorney Gwynne Wilcox to fill a vacant seat on the National Labor Relations Board (NLRB). Wilcox is a partner at the union-side labor and employment firm Levy Ratner P.C. Among other clients, Wilcox has represented Fight for $15, the union-affiliated group that has advocated for increases in the minimum wage. As with prior NLRB nominees, Wilcox’s client list is likely to be an issue during her confirmation hearings and, if confirmed, in cases involving her former clients. If the Senate confirms Wilcox, the three Republican members of the NLRB will remain in the majority, with Wilcox and Chairperson Lauren McFerran constituting the Democrat-appointed minority. Republican Member William Emanuel’s term expires on August 27, 2021. Upon nomination and Senate approval of another Biden nominee, the NLRB majority will flip from Republican to Democrat.

  2. The U.S. Department of Labor (DOL) has moved to rescind a Trump-era rule that would have increased oversight of union finances. The DOL issued a proposal on May 26 that would reverse the rule, which required unions with $250,000 in annual revenue to disclose more information about their stakes in credit unions, their trusts, strike funds, and other assets and investments. The Trump Administration promulgated the rule, but enforcement was halted in March 2021, before the deadline for unions to file paperwork with the DOL demonstrating compliance with the rule. Biden Administration officials have stated that the reporting requirement was partly duplicative of existing reporting rules. Trump Administration officials and some business leaders cited a number of financial scandals involving union officials as evidence of the need for more transparency in union finances.

  3. According to a Bloomberg Law report, it takes an average of 409 days for the parties to negotiate a first collective bargaining agreement (CBA) at a newly organized workplace. The report examined 330 contracts spanning 2004 to the present to determine the average amount of time that elapses between a union’s election win being certified by the NLRB and the date a contract is signed. It examined the results by industry, with healthcare and social assistance contracts taking the longest to negotiate (528 days on average), while professional and business service contracts took the least time, roughly nine months on average (269 days). While the average for all contracts was 409 days, the median length of time between certification and a contract was 356 days.

  4. A U.S. District Court ruled that a “broadly written” CBA provision compelled arbitration over the elimination of retiree health benefits, rejecting the employer’s argument that retirees are not employees and therefore are not covered by the labor agreement. Verso Corp. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC, No. 3:19-cv-0006 (S.D. Ohio May 6, 2021). The employer and the administrators of the union health and welfare plan announced the elimination of certain retiree health plan benefits. The union filed grievances alleging the move violated the CBA. The union moved in district court to compel arbitration, but the court dismissed the motion. Following the dismissal, the U.S. Court of Appeals for the Sixth Circuit issued its decision in USW v. LLFlex, 19-5464 (6th Cir. Mar. 24, 2021), determined a CBA’s “narrowly written clause” on healthcare benefits meant arbitration over such benefits was limited to a small category of healthcare disputes. The union moved the district court to reconsider its decision in light of LLFlex. Granting reconsideration and reversing its earlier decision, the district court found the provision in the employer’s CBA was written far more broadly than the provision at issue in LLFlex. That breadth meant the provision could be read to cover disputes over retirees’ benefits, meaning the parties could be required to arbitrate their dispute.

  5. The NLRB held an employer violated the NLRA by enforcing a prohibition against recording conversations at work, but the agency did not require the employer to rescind the rule in question. AT&T Mobility, 05‒CA‒178637 (May 3, 2021). Applying the framework for evaluating the lawfulness of workplace rules set in Boeing Company, 365 NLRB 154 (2017), the NLRB found the employer unlawfully warned a union steward against recording a disciplinary meeting and future such recordings, activity the NLRA generally protects because it involves action taken by one employee on behalf of others. Despite finding the employer’s application of the rule was unlawful, the NLRA found the employer’s no-recording policy was lawful on its face and need not be rescinded, as the rule could be applied lawfully in the future. In so ruling, the Board overruled part of its 2004 decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which would have required the Board to automatically find the employer’s rule unlawful on its face to the extent it could be “reasonably construed” as limiting employees’ rights under the NLRA.

Christopher M. Repole also contributed to this article.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 166
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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...

404-586-1835
Richard F. Vitarelli Principal Jackson Lewis
Principal

Richard F. Vitarelli is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Part of the firm’s national labor practice, he has over two decades of experience representing employers nationally in strategic labor relations, collective bargaining, and union organizing, including in the context of mergers and acquisitions, corporate restructuring and contract administration. He serves as general labor and employment counsel for employers and multi-employer associations in various industries, including construction, manufacturing, health care and senior living,...

860-522-0404
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
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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
Thomas V. Walsh, Jackson Lewis, employment arbitration Lawyer, White plains, Union Organizing Attorney
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Thomas V. Walsh is a Shareholder in the White Plains, New York, office of Jackson Lewis P.C. Since joining the firm in 1986, Mr. Walsh has represented employers in all aspects of labor and employment law and litigation.

Mr. Walsh has represented employers before numerous state and federal courts, regulatory agencies, as well as in numerous arbitrations. Mr. Walsh has extensive experience in representing employers faced with union organizing drives and in proceedings before the National Labor Relations Board. He has an...

914-872-6912
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