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Top Five Labor Law Developments for October 2018

  1. The deadline for submitting comments regarding the National Labor Relations Board’s proposed rulemaking on the standard for determining joint-employer status under the National Labor Relations Act has been extended to December 13, 2018. Under the Board’s proposed rule, 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. If implemented, the rule would reinstate the traditional joint-employer standard the Board abandoned in its Browning-Ferris decision, 362 NLRB No. 186 (2015). The proposed rule has the potential to significantly affect companies that use or provide temporary or supplemental staffing services, as well as companies that regularly work with franchisors and franchisees or with subcontractors.

  2. The Office of General Counsel of the NLRB has directed the Board’s field office staff to prosecute a broader range of cases than previously against unions that engage in negligent behavior toward their members. The General Counsel memorandum, which became public in October, may make it easier for union members to show their union violated the “duty of fair representation” to members. These situations include: 1) where a union loses track of, misplaces, or otherwise forgets about a member’s grievance; and 2) where a union fails to communicate its decisions about a grievance or fails to respond to inquiries for information from a member on the status of a grievance. While the memorandum is not controlling law (ultimately, the five-member Board issues controlling interpretations of federal labor law), because the General Counsel’s office prosecutes cases filed with the NLRB, the memorandum may cause a considerable uptick in cases filed against unions.

  3. The NLRB held that it may process an employer’s petition to hold a union decertification election even after agreement is reached on a labor contract with the union, so long as the petition is filed prior to the labor contract’s effective date. Silvan Indus., a Division of SPVG, 367 NLRB No. 28 (Oct. 26, 2018). The employer filed its petition after reaching agreement with the union during contract negotiations, but before the parties could execute the agreement. Opposing the employer’s petition, the union argued the petition could not be processed because of the contract bar doctrine (the NLRB will generally decline to process an election petition filed during the term of a collective-bargaining agreement). The Board sided with the employer because the contract was not yet in effect, and therefore, no contract exists to bar the petition.

  4. While the NLRA allows states to enact right-to-work laws, it does not authorize local municipalities to do so, the U.S. Court of Appeals for the Seventh Circuit has held. I.U.O.E. Local 399 v. Village of Lincolnshire, No. 17-1300 & 17-1325 (7th Cir. 2018). In 2015, the Village of Lincolnshire passed an ordinance that contained a right-to-work provision. Several unions challenged the ordinance in federal district court, arguing it was preempted by the NLRA. The district court ruled the NLRA preempted the ordinance, and the Village appealed. Striking down the ordinance, the Seventh Circuit held that while the NLRA cedes some power to the states to regulate labor relations, it does not allow the states to re-delegate that power to localities. The Seventh Circuit’s decision in Village of Lincolnshire is contrary to the Sixth Circuit’s holding in United Automobile, Aerospace, and Agricultural Implement Workers of America Local 3047 v. Hardin County, Kentucky, 842 F.3d 407 (6th Cir. 2016). This creates a circuit split that the U.S. Supreme Court may be called on to resolve.

  5. On October 9, unionized employees of the AFL-CIO voted unanimously to strike after the AFL-CIO implemented a contract that froze wages and cut benefits. The AFL-CIO had been in contract negotiations with the Office and Professional Employees International Union (OPEIU), which represents AFL-CIO staff, including approximately 50 janitorial, secretarial, and accounting AFL-CIO staff members. The contract imposed by AFL-CIO management was one the employees previously had rejected unanimously. While the vote by OPEIU-represented employees authorizes a strike, the OPEIU leadership must call a strike before any work interruption occurs.

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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....