Its Back to the Drawing Board on Browning-Ferris…Again

As the definition of a joint employer shifts with each change in Administration, so too does the holding of Browning-Ferris – a case that has been fluctuating between the National Labor Relations Board (“NLRB”) and the United States Court of Appeals for the District of Columbia (“D.C. Circuit Court”) for nearly ten years.

Court,Of,Law,And,Justice,Trial,Session:,Imparcial,Honorable,JudgeIn 2013, the Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters (the “Union”) kicked off this almost decade-long controversy by petitioning the NLRB for representation of workers that it asserted were joint employees of Leadpoint Business Services and Browning-Ferris Industries of California, Inc. (“BFI”). Since then, the NLRB and the DC Circuit Court have issued numerous and, more often than not, contradictory rulings, culminating with this most recent decision from the D.C. Circuit Court.  Here, the Court challenged the Trump Administration’s NLRB’s reasoning that BFI was not a joint employer using what the NLRB termed “a clear rule of law requiring proof of direct and immediate control” that had been in place “for at least 30 years.” Essentially, the D.C. Circuit Court vacated the NLRB’s ruling because “the [NLRB] made multiple overlapping errors” in its analysis, which the Court asserted failed to support the NLRB’s ultimate decision.

Timeline of the Case

To better understand the D.C. Circuit Court’s most recent decision, below is a timeline of the prior decisions and related action from the NLRB related to the joint employer standard: Continue reading

[Webinar] Withdrawal Liability and Pensions

CaptureOn Wednesday, April 14th at 1:00 P.M. EST, join Mark M. Trapp for a webinar regarding Withdrawal Liability and Pensions.

This webinar will address the significant challenges faced by companies participating in multiemployer plans. Specifically, it will help unionized employers understand and analyze what is often the most critical challenge facing their business – multiemployer pension withdrawal liability. It will also address pension-related provisions of the recently-enacted American Rescue Plan Act.

Participants will learn about the following: Continue reading

NLRB Makes It Easier for Employers with Temp Workers to Become Unionized

By:  Kara M. Maciel and Lindsay Smith

On July 11, 2016, the National Labor Relations Board (“Board”) reversed decade old precedent requiring consent from the host employer and a staffing agency before a union election that includes temporary employees could take place. Through its 3-1 decision in the Miller & Anderson, Inc. case, the Board revoked its 2004 Oakwood Care Center holding and reinstated its 2000 decision in M.B. Sturgis by finding that bargaining units covering both regular employees and temporary employees do not require employer approval.  Indeed, the Board explained that based on the broad definition of employee in the National Labor Relations Act (“the Act”) and Congress’s “statutory charge” to the Board, it interprets the term “employer unit” in Section 9(b) be made up of both employees solely employed by the host employer and joint employees employed by both the host employer and the staffing agency, when those employees share a community of interest. In a statement released regarding its decision, the Board made clear that host employers would be expected to bargain as usual with their regular employees, and “will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.”

The main argument against reversal of the Oakwood Care Center decision and the problem that arises in permitting such a bargaining unit, as explained in Board Member Philip Miscimarra’s dissent, is that Continue reading

NLRB Data Confirms Union Elections Are Happening Twice As Fast under Ambush Election Rules

NLRBWhat should come as no surprise to any management or labor attorney, the National Labor Relations Board (NLRB) has stated that union elections are taking place twice as fast under the new NLRB Representation Case Rule changes, also known as the “ambush election” rules.

As reported by Politico’s Morning Shift today and according to an NLRB PowerPoint presentation collecting relevant data, the median time between the filing of an election petition and an NLRB-directed election was 32 days, a decrease from 67 days during the same period in 2014.  In addition, the median time between the filing of an election petition and the pre-election hearing was 9 days, a decrease from 13 days.

Interestingly, despite the compressed time from petition to election, the unions are not winning elections in higher percentages.  According to the NLRB’s data, since April 2015 when the election rule took effect, unions won 68.8 percent of elections, compared to 69 percent during the same period in 2014.  The number of petitions filed is also unchanged: 1,446, compared to 1,442.

This begs the question whether the ambush election rules are hurting employers, or whether employers have taken heed and begun preparing for any organizing well before any petition is filed.  It also leaves open the question whether labor unions have changed their strategy to file more election petitions in light of the new rules, rather than relying on card check and neutrality agreements as they have for the past several years.  In New York City, for example, the Hotel Trades Council filed election petitions at 4 hotels in Manhattan over a few short months this summer, and won each of those elections with a large majority.  The bargaining units were relatively small – less than 50 employees at each hotel – and focused primarily on room attendants and housemen.

Despite the NLRB data, in speaking with my contacts and fellow labor attorneys, we are all seeing a significant uptick in representation petitions across all industries and across the country, which means that employers must be prepared to respond to a petition before any organizing campaign can occur.  Management training and understanding the rules of the game well in advance could be the game-changer in how elections are won under the new rules.

Union Interference with OSHA Inspections

Now that the NLRB’s ambush election rulesworkplace safety signs all have taken effect and labor unions are able to take advantage of the significantly shortened time frame from the filing of a representation petition to the election, it has been questioned whether labor unions will continue to engage it its prior “corporate campaign” tactics to organize new workplaces.  As employers have experienced from several different unions in the past decade, including UNITE HERE, UFCW, SEIU and others, labor organizers attack the corporation from outside threats in its attempt to persuade the employer to sign a card check or neutrality agreement, rather than resort to the traditional secret ballot election procedure.  It’s akin to a death by a thousand cuts, and labor unions have found more success in organizing employees.  One of the corporate campaign tactics includes involving outside regulatory state and federal agencies to investigate the workplace for potential regulatory violations.

In this post by my partner, Eric Conn, he explains how labor unions have accompanied OSHA investigators during on-site inspections, even in non-union workplaces, and what employers can do when presented with labor representatives.