March 18, 2019

March 18, 2019

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Top Five Labor Law Developments for November 2018

National Labor Relations Board (NLRB) Chairman John Ring has announced that revisions to the Board’s election rules are a “long-term” action item. This may indicate the revisions to the Obama-era election rules (in effect since April 2015) are less of a priority for the upcoming year than other Board initiatives. Ring also publicly stated that rulemaking on the election rules will occur on an issue-by-issue basis, rather than all at once. Among other major changes, the Obama-era election rules significantly shortened the time between the filing date of an election petition and the date the election is held. The rules, often referred to as the “quickie” or “ambush” election rules, have been criticized as a hindrance to employers’ ability to respond to and educate employees about union organizing activity.

A Washington federal judge has found that the state’s unionized public employees are not entitled to a refund of union fees paid prior to the U.S. Supreme Court’s decision in Janus v. AFSCME Council 31, No. 16-1466 (June 27, 2018). Washington State public employees filed a class action seeking repayment of the dues paid to the American Federation of State, County and Municipal Employees (AFSCME) Council 28 prior to the Janus ruling. In Janus, public sector employees who are non-members of a union argued that they cannot be legally required to pay agency or “fair share” fees as a condition of employment. The U.S. Supreme Court agreed, concluding the fees were forced speech in violation of the First Amendment. (See our article on Janus, Supreme Court Rules Unconstitutional Mandatory Fees Imposed on Non-Union, Public Sector Employees.) In Danielson v. Inslee, No. 18-cv-05206 (W.D. Wash. Nov. 28, 2018), the District Court found the union acted in good faith when collecting the fees, because it could not have known the Supreme Court would overturn a decades-old precedent permitting public sector unions to charge compulsory union fees. The District Court ruling is the first decision on the merits in a number of pending suits asking courts to compel public sector unions to repay fees that were paid prior to Janus.

NLRB employees have protested a decision by Board Chairman Ring and General Counsel Peter Robb to reopen NLRB staff union contracts. NLRB employees, represented by the NLRB Professional Association, publicly protested a decision by Chairman Ring and General Counsel Robb to reopen the labor contracts covering the employees’ terms and conditions of employment. The protest, which included leafleting, took place outside the American Bar Association’s 12th Annual Labor and Employment Law Conference in San Francisco, which Ring and Robb attended. The leaflets claimed that employee confidence in the NLRB had dropped significantly. The leaflets also alleged that Ring and Robb “engaged in a systematic attack” on NLRB employees and “the agency as a whole.”

Members of the AFL-CIO’s own staff have spoken out about the need to improve the terms and conditions of work for the union’s employees. According to media reports, during contract negotiations with the employees’ staff union, the AFL-CIO proposed a three-year pay freeze, less-consistent hours, cuts to sick leave, and weaker seniority rights. AFL-CIO workers are represented by the Office and Professional Employees International Union (OPEIU). The OPEIU-represented employees have voted to authorize a strike against the AFL-CIO.

It appears the Senate will not vote on NLRB Member Mark Gaston Pearce’s re-nomination to the NLRB before the end of this Congressional term. The Senate’s Health, Education, Labor and Pensions (HELP) Committee ended its final markup of the 115th Congress without taking a vote on the nomination. Despite criticism by business groups that Pearce’s decisions on the Board have been anti-business, President Donald Trump nominated Pearce for a third term on the NLRB earlier this year. Some say Pearce’s confirmation may still be possible: as part of a deal in which Democrats will agree to waive objections to Trump’s judicial nominations.

Jackson Lewis P.C. © 2019

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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
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
Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney
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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