This article was originally published on Law360.com.

Taking advantage of an unaddressed area of law, and his virtually unfettered discretion to control the prosecution of unfair labor practice allegations, the general counsel of the National Labor Relations Board has returned the board’s deferral policy to its historical practice. Once again, unfair practice charges in a union-represented workplace will be deferred to the parties’ grievance and arbitration process whenever a grievance has been filed or could have been filed.

The new Memorandum GC 19-03 reverses much of a prior memorandum, issued during the final year of the Obama administration which precluded deferral unless the parties had expressly agreed to the arbitration of the unfair labor practice. The ability of unions to force litigation in two forums had not existed since the passage of the National Labor Relations Act.

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On January 25, 2019, the National Labor Relations Board reaffirmed its adherence to the traditional common law independent contractor test for determining whether a worker is an employee or an independent contractor under the National Labor Relations Act.

In SuperShuttle DFW, Inc., the Board expressly overruled its 2014 FedEx Home Delivery decision. In FedEx, the Board drastically reduced the significance of entrepreneurial opportunity in the determination of independent contractor status. FedEx emphasized the right to control factors relevant to the so-called “economic realities” test and gave weight to whether a worker was in fact “seizing” actual opportunities and rendering services as part of their own independent business.

SuperShuttle DFW, Inc. is significant as it abandons the Obama-era standard and gives a boost to companies using contract labor by elevating the importance of entrepreneurial opportunity in the independent contractor analysis. Insodoing, the Board returns the legal framework to its traditional common law roots and adds the examination of entrepreneurial opportunity. The decision suggests that moving forward, the Board “evaluate the common-law factors through the prism of entrepreneurial opportunity when the specific factual circumstances of the case make such an evaluation appropriate.”

Continue Reading Emphasizing “Entrepreneurial Opportunity,” The NLRB Returns To Business-Friendly Independent Contractor Test

A recent decision by the National Labor Relations Board left experienced labor practitioners scratching their heads. In Tschiggfrie Properties Ltd. v. NLRB, a three-member panel of the Eighth Circuit did more.

The panel vacated the NLRB’s decision in a case involving an employee who was fired for abusing his employer’s Wi-Fi and for sleeping on the job. (The same employee also initiated the process of unionizing the workforce and served as an observer for the union election.) Before the appellate court, the NLRB unsuccessfully argued that a showing of a nexus, or a link between the employee’s protected activity and the adverse employment action, was not required to satisfy the employee’s initial burden in a wrongful termination case. The Eighth Circuit found that the NLRB misapplied the burden of proof, vacated the NLRB’s order and remanded the case with instructions to reconsider whether the general counsel could make the appropriate showing.

Click here to read more about this case, the reminder its decision serves and next steps employers should take.

Mark Twain famously said: “Reports of my demise have been greatly exaggerated.” So it is true with reports that employers can breathe easier with the new Trump National Labor Relations Board.

The recent decision in Circus Circus Casinos Inc. is a stark reminder that even as the mid-term elections in the Trump presidency approach, the Obama era, at least at the NLRB, is not over. The decision in Circus Circus imposes on employers an additional administrative step to clear before conducting investigatory interviews during the disciplinary process. After receiving a signal (even if not a direct request) that an employee desires representation, employers may not proceed with interviews until a union representative can be identified and obtained.

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Recent guidance issued by the NLRB General Counsel Peter Robb, the NLRB’s chief prosecutor, is a continuing testament to the NLRB’s impact on the changing legal landscape regarding workplace rules. On June 6, 2018, Peter Robb issued a 20-page Memorandum to the NLRB Regional Offices titled “Guidance on Handbook Rules Post-Boeing.”

Continue Reading The NLRB Issues Useful Guidance Providing Additional Clarity On Work Rules

Is your HR team struggling with how to manage a diverse workforce in the #metoo era? Join us and representatives from the EEOC and NLRB for a complimentary seminar on April 12th to discuss the agencies views on these topics and more, including:

  • The Evolving Workplace and Where We Stand With the New Administration
  • The EEOC’s perspective: Sexual Harassment, Mandated Training, Civility Rules and Confidentiality (featuring Greg Gochanour, EEOC Supervising Trial Attorney
  • The NLRB’s Perspective: The New Standard for Evaluating Work Rules and What it Means for Employee Handbooks, Confidentiality and Civility in the Workplace (featuring Paul Hitterman, NLRB Regional Attorney, Region 13)
  • Ethics CLE: Rule 37 (ESI), Spoliation and Litigation Holds

When: 8:30 AM CST – 11AM CST (The seminar kicks off with registration and a networking breakfast, and the program begins at 9AM)

Where: Hyatt Regency Deerfield (1750 Lake Cook Rd., Deerfield, IL 60015)

Click here for more information on the seminar, including featured speakers. To register, click here.

The NLRB closed out its busy week of reversing Obama-era standards in two more high-profile decisions, this time addressing the duty to bargain and bargaining unit determination (see our previous post covering work rule and joint employer standards). On Chairman Phillip Miscimarra’s final day in office, the Board’s two key decisions: (1) returned to a standard returning to broader employer rights to make unilateral changes without providing a union notice and an opportunity to bargain; and (2) eliminated the “micro-unit” bargaining unit standard that constricted employers’ ability to expand proposed bargaining units to include other employees who share a community of interest with those of the proposed unit.

Impact on Employers

The return to previous standards of unilateral change analysis will allow employers more discretion in changing terms of employment consistent with past practice. This benefit to employers most commonly arises with company-wide changes to health insurance plans. Under the previous standard, an employer could be forced to delay implementation of health insurance changes until it had provided notice to the union and an opportunity to bargain, even in the face of longstanding past practice. Many employers with medical plans covering union and non-union employees will have less interruption during open enrollment plan changes.

Elimination of the “micro-unit” standard of bargaining unit appropriateness substantially reduces a union’s ability to cherry pick favorable groups of employees to win elections. Unit determination will return to a more holistic review of shared “community of interest” rather than proceeding based on the union’s extent of organizing. Ultimately, the decision will give employers more ability to defend against union organizing campaigns and keep unions from obtaining representation through small pockets of employees amongst a larger department or facility.

Continue Reading NLRB Rounds Out Return To Pre-Obama Standards With Duty to Bargain And Unit Determination Decisions

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

Many of the NLRB initiatives established during the previous administration could soon be no more.

On December 1, 2017, the new NLRB General Counsel, Peter Robb, issued a memorandum that rescinded numerous memorandums and initiatives of his predecessor, and set forth the types of future charges that should be submitted to his office for advice. Highlighting the list of the seven expressly-rescinded memorandums are:

  • GC 11-04 (Default Language). This 2011 memo instructed all NLRB Regional Offices to include certain “default language” in all informal and compliance settlement agreements that provided that if the Charged Party/Respondent failed to comply with the terms of the settlement agreement, the underlying complaint would be re-issued and summary judgment would be entered in favor of the GC. The only issue that could be raised to the Board is whether the Charged Party/Respondent, in fact, defaulted on the terms of the settlement agreement.
  • GC 12-01 (Guideline Memorandum Concerning Collyer Deferral). This 2012 memo changed the previous deferral policy, directing NLRB Regional Offices to stop deferring Section 8(a)(1) and (3) cases where arbitration will not be completed within a year. If the grievance arbitration was not likely to be completed within one year and deferral was deemed inappropriate, the Region was instructed to conduct a full investigation on the merits of the charge.

Continue Reading New NLRB GC Peter Robb Spells Relief For Besieged Employers

On Monday, September 26, the U.S. Senate voted and confirmed William Emanuel as the newest member of the National Labor Relations Board.  Emanuel is a long-time management-side labor and employment attorney, who was nominated by President Trump in June to fill the vacant NLRB seat.  With Emanuel’s confirmation, the NLRB has a Republican majority for the first time in ten years.

As previously reported here, President Trump also recently nominated Peter Robb to serve as the next General Counsel for the NLRB.  Robb has worked as a management-side attorney in private practice since 1985.  If confirmed, Robb would be the first Republican to serve as NLRB General Counsel since 2010.

With Emanuel’s confirmation to the NLRB, as well as Robb’s nomination for General Counsel, several of the previous administration’s union-friendly decisions are expected to be rolled back.