Last week, the National Labor Relations Board (the “NLRB”) approved and released its Strategic Plan for Fiscal Years 2019-2022. Congress requires government agencies like the NLRB to formulate strategic plans every four years and release those plans to the public. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. This iteration of the NLRB’s Strategic Plan largely focuses on the agency’s goals to reduce the processing time for unfair labor practice charges and representation cases, acknowledging the problem that “[o]ver the years, the amount of time it takes for cases to be processed and for resolutions to be reached has increased and backlogs of cases have developed. This initiative has been developed to reverse these trends.”
It’s now officially public: under the National Labor Relations Board’s (NLRB) General Counsel Peter B. Robb, unions may face greater scrutiny and a higher burden in defending against claims that they violated the duty of fair representation. Under the National Labor Relations Act, unions owe this duty to its members and can be liable under Section 8(b)(1)(A) if they represent them arbitrarily, discriminatorily, or in bad faith. Continue Reading New General Counsel Memorandum Reiterates The NLRB’s Policy of Increased Scrutiny of Unions
The NLRB’s Office of the General Counsel recently issued an internal directive regarding the manner in which NLRB Regions prosecute duty of fair representation charges against unions. Under the National Labor Relations Act, unions have a duty of fair representation to the members of the bargaining unit it represents by engaging in conduct that is not arbitrary, discriminatory or in bad faith, particularly with regard to the processing of worker grievances. Board law has established (and unions typically offer as a defense) that “mere negligence” alone does not amount to arbitrary conduct that would serve to breach the duty of fair representation.
Hunton Andrews Kurth special counsel and former NLRB general counsel Ronald Meisburg recently wrote an article, “Navigating NLRB: Attacking Instability With APA Rulemaking”, as part of Law360’s Expert Analysis series. You can read the full article here.
The National Labor Relations Board (“Board”) has taken the first step to potentially reshape labor law since the May 21, 2018 Epic Systems case, in which the Supreme Court held that class waivers in arbitration agreements do not violate the National Labor Relations Act (“Act”).
On August 15, 2018, the Board vacated its decision and order in Cordúa Restaurants, Inc., 366 NLRB No. 72 (April 26, 2018), where a three-member panel of the Board held that an employee engaged in concerted, protected activity by filing a class action wage lawsuit against his employer.
The Board’s recent vacating of this order is noteworthy for two reasons.
The National Labor Relations Board issued a decision that serves as a reminder to employers of their bargaining obligations upon implementing changes to their business. Rigid Pak Corp., 366 NLRB No. 137 (2018) involves a unionized company (“Rigid”) that manufactured and sold plastic products. Rigid maintained an injection-molding division and a blow-molding division housed on different sides of its facility. The injection-molding division manufactured open-head containers, lids, and crates while the blow-molding division manufactured plastic bottles. In 2014, Rigid encountered various financial difficulties, and to address them, the company entered into a supply agreement to outsource its work to a third-party manufacturer.
On July 18, the Department of Labor’s (DOL) Office of Labor-Management Standards issued a final rule rescinding the so-called “persuader rule,” a controversial Obama-era regulation requiring employers to disclose advice received regarding opposition to union efforts.
Many in the labor community are familiar with the Machinists Union’s long running effort to unionize Boeing’s South Carolina-based 787 Dreamliner manufacturing facility. After failing in two previous attempts to organize the entire facility, the Union recently won a bid to organize a “micro-unit” limited to a group of flight line technicians and inspectors. The Regional Director’s decision to approve the Union’s proposed bargaining unit took most labor practitioners by surprise, given the NLRB’s recent decision in PCC Structurals overturning the controversial Specialty Healthcare standard that facilitated the formation of micro-units. In PCC Structurals, the Board rejected the Specialty Healthcare test and reaffirmed that in reviewing representation petitions, the Board cannot limit its analysis to the interests of employees in the proposed bargaining group and instead must make a “meaningful” evaluation of the interests of those excluded from the group.
Under this standard, the micro-unit proposed by the Union should have been rejected. Inexplicably, the Regional Director reviewing the petition approved the unit, paying little heed to the guidance announced in PCC Structurals. Boeing has petitioned the full NLRB to review and overturn the Regional Director’s decision.
Hunton Andrews Kurth filed an amicus brief supporting Boeing’s appeal on behalf of a group including the Coalition for a Democratic Workplace, Independent Electrical Contractors, National Association of Wholesaler-Distributors, National Federation of Independent Business, National Retail Federation, Restaurant Law Center and Retail Industry Leaders Association. In the brief, the amici urge the Board to accept Boeing’s petition for review in order to provide guidance to the regulated community and the NLRB Regions charged with processing representation petitions on how to properly apply the standard announced in PCC Structurals. A copy of the brief can be found here.
As we reported last December, the NLRB, in The Boeing Company, 365 NLRB No. 154 (2017), reversed its workplace rule standard under Lutheran Heritage. Specifically, instead of assessing whether an employee could “reasonably construe” a workplace rule as barring the exercise of rights under the NLRA, the new test will evaluate the nature and extent of the potential impact on NLRA rights and the legitimate justifications associated with the rule. The results of the new balancing test will place the rule in one of three categories: Category 1 (lawful work rules), Category 2 (work rules that warrant individualized scrutiny in each case), or Category 3 (unlawful work rules).
In a major win for employers, the U.S. Supreme Court held that arbitration agreements with class action waivers do not violate the National Labor Relations Act (“NLRA”). The Court’s narrow 5-4 decision paves the way for employers to include such waivers in arbitration agreements to avoid class and collective actions.