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.

A Winning Formula

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.Continue Reading A Tale of Two Appeals: Recent Appellate NLRB Decisions Show the Value of Sticking with an Argument

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

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

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

This article was originally published on Law360.com.

Three recent decisions arising under the National Labor Relations Act highlight that ambiguity and inattentiveness are the twin banes of labor and employment attorneys. In all three cases, the dispute arose because two personnel policies or approaches overlapped, opening the way for conflicting claims. As these cases demonstrate,

Manufacturers and retailers that have long relied on a complex web of contractors and subcontractors to supply necessary parts and materials may face a new risk. A recent decision limiting the effectiveness of a no-strike clause in a collective bargaining agreement may create an additional risk to that supply chain, if not to the employer’s own uninterrupted operations.

No-Strike Clauses

  • Most CBAs contain some form of a no-strike clause. They are intended to protect against any interruption to production due to labor unrest during the term of the agreement.
  • The Supreme Court has long deemed a strike in violation of a no-strike clause a breach of the collective agreement which a federal district court could enjoin.
  • BUT — that assumption may no longer be wholly valid as demonstrated by a recent decision by a federal district court. Just Born, Inc. v. Local Union No. 6, Bakery Workers, 2017 BL 466136 (ED Pa. 2017).

Continue Reading Supply Chain Interruption Risk From Mid-Term Strikes

In a flurry of high-profile decisions issued on the eve of NLRB Chairman Phillip Miscimarra’s term’s expiration, the NLRB has announced employer-friendly standards reversing recently adopted analyses and restoring the historical analyses in perhaps the two most watched (and criticized) categories of employer unfair labor practice (ULP) charges: (1) evaluating work rules for impact on protected concerted activity (formerly the Lutheran Heritage analysis); and (2) joint employer liability (formerly the Browning-Ferris analysis).

Impact on Employers:

As a result of the “new” work rule analysis, employers will be less likely to face scrutiny of employee handbook provisions. Employers now have broader discretion to implement and enforce handbook provisions relating to civility in the workplace and workplace safety (i.e., no cell phone/camera policies, social media). Employers who have dramatically trimmed employee conduct policies have some freedom to reinstate more usable and effective rules, but should note that this area of law is almost certain to fluctuate based on the presidential administration in power.

With the reversal of the joint employer analysis, employers will have less labor risk (bargaining obligations and strikes) when engaging third parties like staffing companies, temporary workers, or co-located workers. Critically, the prospect of becoming bound to a bargaining obligation with  another entity’s employees will be substantially less likely. Avoiding joint employer liability will focus more limiting actual control and direction of non-employees and less on the contractual arrangements with other entities supplying those employees. While this change is unlikely to dramatically change the scope of outsourcing, employers can have more certainty of the scope of potential ramifications and liability in using third party workers.Continue Reading Signaling Major Change, NLRB Yanks ‘Joint Employer’ Standard And Adopts A More Pro-Employer Stance On Workplace Policies

After a contentious confirmation process, on April 7, 2017, the Senate confirmed Tenth Circuit Judge Neil Gorsuch to fill the Supreme Court seat that has been vacant since the death of Justice Antonin Scalia in February 2016. On April 10, 2017, Gorsuch, a former clerk of current Justice Anthony Kennedy, was sworn in by Kennedy. Now that Gorsuch has taken his oath, he is ready to participate in the Supreme Court’s next round of oral arguments, which are set to begin on April 17.
Continue Reading Neil Gorsuch Fills Vacant Supreme Court Seat

On August 1, 2016, the U.S. Department of Labor and Doctors Associates Inc. (Subway Restaurants) announced a voluntary agreement formalizing their ongoing collaboration.  This agreement is a first of its kind and seeks to ensure that franchise owners have the tools necessary to comply with wage and hour laws.  Since 2012, Subway has made available a platform for the DOL to provide training and resources to franchisees.  Despite the DOL’s efforts, other companies have reportedly been reluctant to enter into similar agreements due to fears that other government agencies will use such an agreement as evidence of a joint employer relationship.  Interestingly, Subway has been collaborating with the DOL for over three years and although this collaboration has been very much in the public eye, no agency has indicated that such a relationship would make them a joint employer.  The DOL hopes the fact that Subway, the world’s largest franchisor, entered into the compliance agreement will encourage other companies to follow suit.  Given the various government agencies’ joint employer efforts, all companies, whether franchisors or not, should analyze their own specific circumstances before entering into a similar agreement.
Continue Reading Does Subway’s Compliance Agreement with the DOL Really Raise Joint Employer Concerns?