On December 13, 2019, the National Labor Relations Board finalized a new rule reversing some of the most problematic provisions of the "Ambush Election Regulations" that went into effect under former President Obama in 2015. While the new regulations did not rescind all of the Obama amendments, the modifications will be of great value to Employers in responding to Union Election Petitions and dealing with the vexing issue of Union Representation.
A few years ago, there was grave concern that the "Weingarten Rights", 420 U.S. 251 (1975) were going to be extended from just Unionized Employers to Non-Union Employers with the Non-Union individual who may be subject to discipline getting the right to ask a coworker to be present during any Disciplinary Interview. This did not occur, but a recent Decision by the National Labor Relations Board in Circus Circus Casinos, Inc. 336 NLRB No. 110 (2018) has changed the rules going forward.
On June 6th newly appointed General Counsel to the National Labor Relations Board, Peter B. Robb, issued comprehensive new guidance on employee handbook provisions. The guidelines direct the Board's Regional Directors throughout the country to reverse course from years of decisions issued by the Board majority appointed by then President Obama. Under the Obama Board numerous workplace rules commonly found in employee handbooks, were declared unlawful. Specifically, a long line of NLRB decisions considered many standard provisions interfered with or restrained employees in exercising their right to engage in "concerted activities" protected by Section 7 of the National Labor Relations Act. The rationale used to justify such an extraordinary expansion of a labor law that has existed since 1947, was based on a hypothetical question: "could" employees interpret a given handbook provision to tamp down their right to strike, or to join together in protest of wages or other terms and conditions of employment? All too often the Board answered this hypothetical question in the affirmative, declaring basic workplace rules on civility, confidentiality, misconduct, etc. violated employee rights. These decisions - and the vague, hypothetical theory on which they were based - left employers in the dark as to what they could include in their employee handbooks without breaking the law. Thankfully, the new guidelines restore the rights of employers to maintain reasonable work rules.
Good news for business! On April 11, 2018, the US Senate confirmed Morgan Lewis & Bockius attorney John Ring to fill the National Labor Relations Board's only remaining vacancy. With this confirmation, the NLRB will be at full strength with a 3-2 pro-business majority. This clears the way for the Trump administration appointees to resume their pro-business agenda.
According to a report just issued by Labor Relations Institute (LRI), unions won 71% of the representation elections conducted by the National Labor Relations Board (NLRB) in 2017. This is consistent with union success rates in recent years and has resulted in over 54,000 newly organized union members last year. Meanwhile, unions lost approximately 4,000 members through decertification elections, where union members voted to oust union representatives. The appearance of a net gain of 50,000 new union members is offset by the fact that unions are filing far fewer petitions for elections these days.
Over the Author's lengthy career in practicing Labor and Employment Law (since November, 1972), I have had the privilege to represent a vast number of Employers in National Labor Relations Board matters (representation in Elections and Unfair Labor Practice Charges). Over that period of time, I have seen numerous vacillations with regard to Board Policy, but none strike me as more vindictive towards Employers than the NLRB's recent position taken with regard to Voter Eligibility Lists.
Since 2012, there has been an ongoing saga created by the National Labor Relations Board (NLRB) as to whether or not an Employer can require its Employees, as a Condition of Employment, to agree to arbitrate all Legal Claims against the Employer on an individual basis only, thereby waiving Class and Collective Action Procedures. The NLRB initially took issue with this type of action in the D.R. Horton, Inc. Case., 357 NLRB No. 184 (2012), in which it held that requiring Employees to waive the right to bring Claims in the form of a Class Action (or a Collective Action under the Fair Labor Standards Act) violated the guarantee of rights, as provided in Section 7 of the National Labor Relations Act, that allows Employees the right to engage in "protected concerted activity for mutual aid or protection". When that Case was appealed to the Fifth Circuit Court of Appeals, the Fifth Circuit denied enforcement of the Board's Order in the D.R. Horton, Inc. Case. Subsequently, the NLRB issued another Decision with a different Employer (Murphy Oil USA, Inc., 361 NLRB No. 72 (2014)) reaching the exact same results - that Class Waivers in Arbitration Agreements, as a Condition of Employment, unlawfully interfered with Employees' rights to engage in "protected and concerted activity" under the National Labor Relations Act. That ruling was again rejected by the Fifth Circuit on Appeal.
In what, to the author, seems like the most illogical position for a Government Agency to take, the National Labor Relations Board is pushing the 8th Circuit to rule that racial statements made by an Employee on a picket line are protected under Federal Labor Law.
1. Employer Contesting Recently Fired, Gun-Toting Former Employee's Presence at Union Election Site, Must Prove it Actually Affected Outcome of Election.
Arbitration agreements are a common tool many employers use as an alternative to going to court to resolve disputes with their employees. Arbitration has the potential to be a faster, cheaper, and more private way to resolve disputes, with more finality. One of the biggest advantages many employers see in arbitration is the ability to resolve disputes individually rather than as part of a class action. However, the NLRB has determined that, in its opinion, these waivers violate employees' right under federal labor law to engage in "concerted activities" for their "mutual aid or protection." This has caused uncertainty as to the legality of such class action waivers in arbitration agreements in the employment arena.