The COVID-19 pandemic, and the unprecedented response thereto by various layers of government has caused many, if not most businesses to rearrange their hours or operations, lay off employees or even to cease doing business altogether. Given this seemingly unprecedented situation, many unionized employers may wonder what duty they have to bargain over specific changes to their ways of doing business.
General Counsel Peter Robb recently provided some helpful guidance summarizing prior NLRB case law on this timely topic. The first portion of Robb’s memo (GC Memo 20-04) summarizes various Board decisions touching on an employer’s duty to bargain during public emergency situations, such as hurricanes, 9/11 and other emergencies.
By way of background, because an employer’s decision to lay off bargaining unit employees is a mandatory subject of bargaining, an employer is generally obligated to bargain with an incumbent union with respect to both the decision to lay off and the effects of that decision. However, an exception to that rule exists if an employer can demonstrate that economic exigencies compel prompt action. Although the Board has consistently maintained a narrow view of this exception, unforeseen extraordinary events which have a major economic effect may fit within it.
For example, in Port Printing & Specialties, 351 NLRB 1269 (2007), the Board ruled Continue reading
On February 26, 2020, the National Labor Relations Board (“NLRB”) published its final joint employer rule in the Federal Register, which tightens the test used to analyze whether workers are jointly employed by affiliated businesses. The final rule is intended to roll-back the stricter Obama-era standard that business interests have longed to overturn.
History of Joint Employer Rule
Under longstanding NLRB precedent, two employers could be joint employers if they shared or codetermined matters governing the employees’ essential terms and conditions of employment. Until 2015, to be a joint employer, a business had to exercise “direct and immediate” control over these employment matters
Then, the Obama-era NLRB overruled the old standard in its decision in Browning-Ferris, and substantially relaxed the standards for proving joint Continue reading
During a recent conference at New York University, NLRB General Counsel, Peter Robb, hinted at the forthcoming restoration of more than fifty years of precedent allowing employers to cease withholding union dues after the expiration of the collective bargaining agreement containing the so-called “dues check-off” provision.
As reported by Law360, Robb referred to the 2015 Obama-era decision overturning that precedent as “misguided,” and stated further: “I think unless there’s clear language that the dues check-off should continue, it shouldn’t.” Prior to that 2015 decision, the Board had, since 1962, consistently held that dues check-off provisions, which implement union security provisions by providing for the automatic deduction of union dues, could be cancelled by employers upon contract expiration. See Bethlehem Steel Co., 136 NLRB 1500 (1962).
Last Friday, the National Labor Relations Board (the “Board”) returned to its long-standing independent-contractor standard, reaffirming its adherence to the traditional common-law test. In deciding SuperShuttle DFW, Inc. on January 25, 2019, the Board voted 3-1 along party lines to overturn the 2014 Obama-era ruling in FedEx Home Delivery. In that case, the Board modified the applicable test for determining independent-contractor status by “significantly limit[ing] the importance of [a worker’s] entrepreneurial opportunity.” Specifically, the Board in FedEx created a new factor – “rendering services as part of an independent business” – and made entrepreneurial opportunity merely one aspect of that factor. However, in its Friday decision, the Board found that FedEx impermissibly altered the common-law test, and clarified the essential role entrepreneurial opportunity plays in its determination of independent-contractor status.
In SuperShuttle, the Board analyzed the issue of whether franchisees who operate shared-ride vans for SuperShuttle Dallas-Fort Worth are employees covered under the National Labor Relations Act (NLRA) or independent contractors. Shuttle van drivers for SuperShuttle sought to unionize at Dallas-Forth Worth airport, but the protections of the NLRA do not extend to independent contractors. The Acting Regional Director, in making her decision before the 2014 FedEx case, applied the traditional common-law test and found that SuperShuttle met its burden in establishing that the franchisees are independent contractors and not employees. After overturning FedEx and applying the common-law test, the Board affirmed the Acting Regional Director’s decision.
To start, the Board explained that the inquiry into whether a worker is an employee or an independent contractor has traditionally depended on the common-law agency test, which involves the application of Continue reading
Join Conn Maciel Carey Labor & Employment Practice Group partner, Mark Trapp, on November 14, 2018 when he presents an interactive workshop to help unionized employers understand and analyze what is often the most critical challenge facing their business – multiemployer pension withdrawal liability. Attendees will learn innovative and aggressive techniques and strategies to address this issue and proactively secure the future of their company.
This workshop will also discuss the current legislative environment for multiemployer pension plans and issues, particularly the work of the Joint Select Committee on Solvency of Multiemployer Pension Plans, charged with preparing a report and recommended legislative language by November 30 to “significantly improve the solvency” of multiemployer pension plans and the Pension Benefit Guaranty Corporation.
Workshop attendees will:
Gain a broad understanding of the challenges facing employers who participate in a multiemployer pension plan
Discover strategies for assessing and minimizing their withdrawal liability risks through collective bargaining and business planning
Examine the status and possibility of legislative relief from the Joint Select Committee on Solvency of Multiemployer Pension Plans
Click here to register.
By: Mark Trapp
On September 14, 2018, the National Labor Relations Board (“NLRB” or “Board”) published a Notice of Proposed Rulemaking (“Notice”). In its Notice, the Board states its belief that the “rulemaking will foster predictability and consistency regarding determinations of joint-employer status in a variety of business relationships.” At base, the Notice is an attempt to return the Board to its pre-2015 standard, which the Obama-era NLRB overruled in the controversial Browning-Ferris decision issued that year.
If enacted, the rules would provide a stronger degree of clarity and predictability to business owners and tighten the standard for finding one business to be a joint employer of another employer’s employees. Moreover, by enacting the standard through rulemaking, rather than adjudication, the NLRB decreases the likelihood of the standard being overturned by a later Board. Continue reading