Wyatt Employment Law Report


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U.S. Chamber Files Suit to Block NLRB’s New Election Rule Which Would Speed Up Elections

By Edwin S. Hopson

On January 5, 2015, the Chamber of Commerce of the United States and several other business groups filed suit in federal court in Washington, D.C. against the National Labor Relations Board attacking the NLRB’s recent final rule which significantly changes the NLRB’s representation procedures to speed up the holding of elections and increase the amount of information unions would receive about the employees voting in the elections. The NLRB’s new rule, passed by a vote of 3-2, is set to go into effect April 14, 2015, if not enjoined by the court pending the outcome of the proceedings. The lawsuit alleges the NLRB violated the Administrative Procedures Act, the National Labor Relations Act, and the U.S. Constitution. The plaintiffs also allege that in issuing the final rule the NLRB majority exceeded its jurisdiction and authority and, in so acting, was arbitrary, capricious, and abused its discretion.


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NLRB Rules Employers Must Allow Employees to Use Its Email System for Union Activities

By Edwin S. Hopson

Recently the NLRB issued its decision in Purple Communications, Inc., 361 NLRB No. 126 (2014), holding that an employer’s email system must be made available to its employees for the purpose of engaging in union activity Professional-Emails-are-Importantand other protected activity under Section 7 of the National Labor Relations Act, so long as such use occurs during non-working time. The decision, rendered by the three Democrat Members, was sharply criticized by the two dissenting Republican Members on the Board. The decision in this case also overruled the Register Guard case issued in 2007, which had held such use of an employer’s email system not protected where the employer’s email policy prohibited such use.

An employer can avoid this new rule “by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”

Many employers have in their employee handbooks or policies provisions which restrict the use of the employer’s email system to strictly business use. Those policies now run likely afoul of the NLRB’s new rule.

Therefore, to be safe, employers should review their email policies carefully to determine whether changes should be made to them.


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NLRB Finds FedEx Drivers to be Employees–Not Independent Contractors

By Edwin S. Hopson

In FedEx Home Delivery, 361 NLRB No. 55 (2014) decided September 30, 2013, the National Labor Relations Board found certain FedEx drivers based in Hartford, Connecticut to be employees of FedEx Home Delivery. The National Labor Relations Act covers “employees” as defined in the NLRA, but does not offer protection to “independent contractors.”

In analyzing the factors as to who are employees and who are independent contractors, the NLRB relied upon the Restatement (Second) of Agency § 220 (1958), as mandated by a number of Supreme Court decisions.

Previously, the U.S. Court of Appeals for the District of Columbia had on similar facts held that the FedEx employees in the case before them were independent contractors and therefore could not unionize under the protections and rights of the NLRA. However, the Board in FedEx Home Delivery, refused to follow that decision, and noted that the U.S. Court of Appeals for the Ninth Circuit had reached an opposite conclusion in a FedEx case.

The FedEx Home Delivery Board majority followed Roadway Package System, 326 NLRB 842 (1998) (Roadway III), which had rejected as the predominant factor the “right to control” test, i.e., did the person in question control the manner and means of performing the work. It concluded that “the great majority of the traditional common-law factors, as incorporated in the Restatement (Second) of Agency, point toward employee status” for the drivers in question, namely that:

-FedEx exercised control over the drivers’ work;

-the drivers were not engaged in a distinct business;

-the work of the drivers was done under FedEx’s direction;

-the drivers were not required to have special skills;

-drivers had a permanent working relationship with FedEx;

-FedEx established, regulated, and controeds the rate of drivers’ compensation and financial assistance to them;

-the work of the drivers was part of the regular business of FedEx; and

-FedEx was in the same business as the drivers.

The Board also noted that “[t]wo of the traditional factors—who supplies the instrumentalities of work, and whether the parties believed they have created an independent-contractor relationship—we view as inconclusive, but they would in any case not outweigh the remaining factors.” However, the Board did find that what the driver was selling was created by FedEx, and remained under FedEx’s control, as did the configuration of the route, the route volume, the customer base, recruitment and pricing.

The three Democrat Members signed onto the decision, while one Republican Member dissented; the other Republican Member recused himself from the case.

 


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Supreme Court in Noel Canning Invalidates NLRB Recess Appointments

By Edwin S. Hopson

On June 26, 2014, the U.S. Supreme Court in NLRB v. Noel Canning et al., 573 U.S. ___ (2014), held in a unanimous decision that President Obama’s purported recess appointment of three members (Richard Griffin, Sharon Block and Terence Flynn) to the National Labor Relations Board in January 2012 was invalid. The opinion written by Justice Breyer was joined in by Justices Kennedy, Ginsburg, Sotomayor and Kagan. Justice Scalia wrote a concurring opinion in which Chief Justice Roberts, and Justices Thomas and Alito joined.

Some of Justice Breyer’s key points in his analysis were:

“Accordingly, we conclude that when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the [recess appointment] Clause.

“Applying this standard, we find that the pro forma sessions were sessions for purposes of the Clause. First, the Senate said it was in session. The Journal of the Senate and the Congressional Record indicate that the Senate convened for a series of twice-weekly “sessions” from December 20 through January 20. 2011 S. J. 923– 924; 158 Cong. Rec. S1–S11. (The Journal of the Senate for 2012 has not yet been published.) And these reports of the Senate “must be assumed to speak the truth.” Ballin, supra, at 4.

“Second, the Senate’s rules make clear that during its pro forma sessions, despite its resolution that it would conduct no business, the Senate retained the power to conduct business.

“Senate has enacted legislation during pro forma sessions even when it has said that no business will be transacted. Indeed, the Senate passed a bill by unanimous consent during the second pro forma session after its December 17 adjournment. 2011 S. J. 924. And that bill quickly became law. Pub. L. 112–78, 125 Stat. 1280.

“We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.”

The justices split only over the question of whether the vacancy to be filled had to itself have occurred during the recess or whether it could have occurred prior to the recess. The majority held that the vacancy could occur prior to the recess, based on historical practice.

Justice Scalia, in his concurring opinion, argued that the vacancy to be filled by a recess appointment by the President had to occur during the recess and relied upon the following language contained in the Constitutional provision at issue:

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Thus this more restrictive view did not carry the day. However, the NLRB is now left with scores of cases which will have to decided again by the newly constituted Board, which was confirmed by the Senate.


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House Committee Conducts Hearing on NLRB’s Proposed Changes to Election Rules

By Edwin S. Hopson

On March 5, 2014, the House Committee on Education and the Workforce conducted a hearing entitled, “Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule.” During the hearing, chaired by Representative John Kline (R-MN), some members of the committee claimed that the recently proposed changes to union representation election rules by the National Labor Relations Board would undermine long-standing rights of workers, employers, and unions.

In opening remarks, Kline stated, in part: “For many of my colleagues, this hearing might evoke a sense of déjà vu. Not too long ago we debated a nearly identical ambush election rule proposed by the National Labor Relations Board that would stifle employers’ free speech and cripple workers’ free choice. In 2011 the House passed with bipartisan support a bill that would have protected the rights of workers, employers, and unions by reining in this radical proposal.”

The rule changes were first proposed in 2011, but were struck down by a federal judge on procedural grounds.  They were then revived last month.  According to Kline, the NLRB’s proposed rule changes would (1) significantly shorten the time between the filing of a union election petition and the actual election, (2) provide employers just 7 days to find legal counsel and prepare for a representation election hearing before the NLRB,  (3) force employers to raise all issues before the hearing or lose the right to raise those issues during the hearing; and (4) delay answers to important legal questions until after employees have voted. Additionally, Kline claimed that the proposed rule changes would jeopardize workers’ privacy by divulging sensitive information, such as email addresses, to union organizers. Continue reading


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NLRB General Counsel Reveals Agenda for Change in Board Law

By Edwin S. Hopson

On February 25, 2014, the NLRB’s General Counsel, Richard F. Griffin, Jr., issued a memorandum to Regional Directors and others in the field setting forth mandatory submissions to the Advice Section of the General Counsel’s Office in Washington, D.C.

Many of the matters cited are areas of the law that the new GC (and probably a majority of the Obama Board) wish to change.  The list of matters was divided into three groups.  The first group consisted of cases “that involve General Counsel initiatives or areas of the law and labor policy that are of particular concern to me.”  The other areas involve difficult legal issues or cases where there is no governing precedent.  The final list includes updates regarding case handling that have traditionally been slated for submission to the Advice Section, as outlined in the NLRB Case Handling Manuel.

The first list includes cases involving the applicability of Weingarten principles in non-unionized settings as enunciated in IBM Corp., 341 NLRB 1288 (2004).  Current Board law (established by the Bush Board) only requires application of Weingarten rights to the union setting.  That is, when an employee represented by a union is to be questioned by management, and that questioning could lead to discipline, the employee may request that a representative be present during the questioning.  Previously, the Clinton Board in IBM Corp had expanded the doctrine to the non-union setting.

Thus, it appears that the new GC is going to attempt to change current Board law and will authorize issuance of complaint and require that any case in the non-union setting raising Weingarten issues must be litigated before an Administrative Law Judge and the Board in Washington, D.C. Continue reading


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Crossroads in College Sports: Northwestern University Football Players’ Attempt to Unionize Could be a Real “Game Changer”

By R. Joseph Stennis

Are student-athletes employees of a university or instead just amateur athletes who play sports for their schools?  This is the question put forth by a  group of current Northwestern University football players who recently announced via representatives their intent to unionize and be recognized as employees under federal labor law.  On January 28, 2014, Ramogi Huma, president of the college athlete advocacy group National College Players Association, filed a petition with the Chicago Regional Office of the National Labor Relations Board (“NLRB”) on behalf of the players requesting to be certified as a union.  If certified by the NLRB, the group of players would be called the College Athletes Players Association (“CAPA”).  CAPA was organized by former Northwestern University quarterback Kain Colter, former University of Massachusetts basketball player Luke Bonner, and Mr. Huma.  CAPA was created with the support from the United Steelworkers Union as well.

The response of the NCAA, Northwestern University and Big Ten Conference was essentially that student-athletes are not employees of the university.  In particular, the NCAA’s chief legal officer Donald Remy stated, “This union-backed attempt to turn student-athletes into employees undermines the purpose of college:  an education.  Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act.  We are confident the [NLRB] will find…there is no right to organize student-athletes.”

The NLRB’s Chicago Regional Office is expected to hold a hearing on this matter on February 7, 2014.  If the NLRB’s Regional Director finds that the athletes are employees as defined in the National Labor Relations Act, he will order a secret ballet election.  If he makes a finding that the athletes are not employees, he will dismiss the petition.  The Regional Director’s decision—either way—will likely be appealed.