Here are several employment law changes we will likely see under a Biden Administration:
Parties before the National Labor Relations Board (“NLRB” or the “Board”) often wonder whether it is worthwhile to appeal adverse rulings or respond when favorable rulings are received. Two recent appellate court decisions demonstrate the value of sticking with an argument from start to finish.
First, in Davidson Hotel Company v. NLRB (D.C. Cir. 2020), the D.C. Circuit recently took the highly unusual step of rejecting an NLRB determination as to the appropriate unit for bargaining at a small, full-service hotel in Chicago. For context, the NLRB had determined that the Davidson Hotel’s employees should be segregated into three separate bargaining units: a unit of front desk employees, a unit of housekeeping employees, and a unit of food and beverage employees. The union petitioned the Board to certify a single unit of housekeeping employees and food and beverage employees.
The Board’s Regional Director decided that a unit consisting of the housekeeping and the food and beverage employees was not an appropriate unit because it did not include the front desk employees, and he dismissed the union’s petition for an election. The Regional Director reached his decision by applying the NLRB’s “community of interest” test, under which the NLRB examines: (1) whether employees in the proposed unit have sufficient commonality in working conditions and job duties (among other factors) such that bargaining as a collective group is possible; and (2) whether employees in the unit have such distinctive interests from those who are excluded-here, the front desk employees-such that they should bargain separately. In his order dismissing the union’s initial petition for a single bargaining unit of housekeeping and food and beverage employees, the Regional Director decided that the unit did not have distinctive interests from the front desk workers, but he hinted that two separate units (one for housekeeping and another for food and beverage) might be appropriate.
Following his cue, the union promptly filed two petitions seeking one election in the housekeeping unit and a second election in the food and beverage service unit. Again, the union did not seek to represent the front desk employees. This time, the Regional Director found that the community of interest test was satisfied and he certified the two units. When an election was held, the union prevailed in both units.
The “days of boys will be boys” must end, said Circuit Judge Brown in Consolidated Communications, Inc. v. NLRB, 837 F.3d 1, 18 (D.C. Cir. 2016), a case involving strike misconduct. Heeding her directive, on July 21, 2020, the three grown “boys” at the NLRB decided that profane outbursts occurring during otherwise protected activities could be cause for termination. General Motors LLC, 369 NLRB No. 127 (2020). In the past, the NLRB has allowed some leeway for impulsive behavior of an employee when such misconduct is part of the “res gestae” of an employee’s protected activity. See, e.g., KHRG Employer LLC, 366 NLRB No. 22 (2018) (setting forth relevant test). But no more. Now, special rules will not apply to employees who violate an employer’s otherwise lawful rule mandating civility in the workplace just because the violation was part of the res gestae of a protected activity. This is good news for front line supervisors and managers who had to endure abusive conduct solely because it occurred during a labor-management meeting or in some other form of protected concerted activity.
Continue Reading NLRB Says, “#*!%@*” Could Get You Fired
On June 23, 2020, the National Labor Relations Board (“NLRB”) ruled that newly-represented employees can be disciplined under existing disciplinary policies even if no bargaining has occurred. 800 River Road Operating Company, Inc., 369 NLRB No. 109 (2020). For the first eighty years of the National Labor Relation Act’s existence, this had been the law of the land. A surprise decision four years ago in Total Security Management Illinois, 364 NLRB No. 106 (2016), upended this rule by requiring an employer to bargain with its employees’ newly certified representative (union) before “serious” discipline could be imposed. The 800 River Road decision returned an employer’s bargaining obligation to that historical and long-standing status – discipline consistent with an existing disciplinary policy is permissible even if the employer has not bargained about the discipline with the employees’ representative. The 800 River Road decision places a premium on well-crafted employee handbooks and disciplinary policies and a solid record retention policy to demonstrate the employer’s record of enforcement.
The decision is only the most recent decision in the long-running debate over the proper interpretation and application of the unilateral change doctrine enunciated by the Supreme Court in NLRB v. Katz, 363 U.S. 736 (1962). In Katz, the Court held that upon commencement of a bargaining relationship, employers “are required to refrain from making a material change regarding any [mandatory] term or condition of …employment…unless notice [of the change] and an opportunity to bargain is provided to the union.” (Slip op.3). Immediately following this sweeping generalized holding, employers ceased providing annual wage increases under existing compensation policies. The NLRB responded by creating the “dynamic status quo” policy. The dynamic status quo exemption to the Katz rule is applied when an employer’s practice or the policy itself becomes a term or condition of employment.
Continue Reading Order Restored, No Duty to Bargain Before Employee Disciplined
Last week the D.C. Circuit Court of Appeals reversed a National Labor Relations Board’s decision involving Weingarten rights, the application of its Wright-Line analysis, and a witness credibility determination. These core principles are no doubt headliners of the NLRB’s Big Top. In one fell swoop, the lion bit the lion tamer, the elephant tossed the mahout, and the trapeze artist lost his grip and came crashing down. Circus Circus Casinos, Inc., v NLRB, No. 18-1201 (June 12, 2020). This is the second recent decision tightening the Wright-Line analysis and will likely result in fewer discharged employees being reinstated. See our August 2019 Alert. “NLRB Holds Pretext Finding Standing Alone Insufficient.”
Continue Reading NLRB Tumbles From High-Wire in Circus Circus Dispute
Join us for Part 3 of our webinar series on the USMCA, as we approach entry-into-force of the agreement on July 1, 2020. In this webinar, “USMCA: Labor Rules and Trade Remedies,” Baker McKenzie experts from the United States, Mexico and Canada will discuss how to prepare for enforcement under the Rapid Response
Addressing union organizing in the workplace has bedeviled employers since the adoption of the National Labor Relations Act. The National Labor Relations Board has historically permitted employers to ban employees from soliciting co-workers during working time. No solicitation policies have been narrowed and refined over the years, as demonstrated by the Board’s holding in Essex International, Inc., 211 N.L.R.B. 749 (1974). Essex distinguished between policies that prohibit solicitation during “working time” (permissible) and those that prohibit solicitation during “working hours” (invalid).
In Wynn Las Vegas, LLC, 369 NLRB No. 91 issued last week, the NLRB broadened the definition of solicitation to include urging a co-worker to vote “yes.” The Wynn Las Vegas decision reverted to the Board’s traditional interpretation and acknowledged the NLRB’s failure to obtain court approval for its narrower meaning.
Government-imposed stay-at-home orders, essential business designations, the Families First Coronavirus Response Act, and employers’ duty to bargain under the National Labor Relations Act recently collided. To complicate matters, unions have proven very aggressive in their demands for information about employer’s responses to COVID-19.
Many unions have demanded decision bargaining over layoffs, or changes in health
In February 2020, the NLRB finally unveiled its long-awaited joint-employer rule governing joint-employer status under the NLRA. The final rule returns the test for determining joint employment to the standard the Board applied for several decades before the 2015 Browning-Ferris decision. The test set forth by the new joint-employer rule provides that a business is a joint employer only if it has “substantial direct and immediate control” over another company’s workers and actually exercises that control. While this is no doubt a welcome relief for employers who routinely contract with subcontractors and staffing companies, it is important to note the limited scope and that this rule does not impact joint-employer tests applied under other employment laws. The proposed rule was initially released in late 2018 and ultimately generated nearly 30,000 public comments (see our coverage here).
Although the rule is an employer-friendly change, employees who are terminated for engaging in protected concerted actives will continue to have a claim for relief against their primary employer. Similarly, union organizing efforts can continue amongst temporary employees as they have for years. Bargaining will continue to occur as it always has between employers and their employees’ union representatives. The labor movement, however, is likely disappointed by the demise of the 2015 Browning-Ferris rule. For years, unions have chaffed at the prohibition against secondary boycotts contained in the Taft Hartley Act of 1947. The 2015 Browning-Ferris rule allowed a backdoor repeal of a significant portion of the secondary boycott ban with its loose definition of joint employer.
The 2020 presidential race is well underway in the U.S. Labor policy has been and will continue to be a key talking point for Democratic candidates and President Donald Trump moving into the general election.
In part one of this two-part article, we examine the key labor policy proposals advanced by the leading Democratic contenders
