NEWS & ANALYSIS
What are the labor implications of Supreme Court’s decision in King v. Burwell? - The National Labor Relations Board recognizes the concept of joint employment – that a single employee can have more than one “employer.” As we have previously reported, the Board is considering arguments that the standard for "joint employment" status should be loosened and is expected to relax the standard in one of several pending cases. Countless business and operations models based on use of contingent, leased, or temporary employees, contract operations, franchises, and similar relationships are likely to be disrupted as a result. This is part of the multi-faceted attack on what Obama administration representatives and appointees have called “fissured industries.”
Now, foreshadowing another change in established Board law, the Board has granted a petition for review of a Regional Director’s unit determination in a representation case, Miller & Anderson, Inc., raising the following issue: if an entity is found to be a joint employer with its contractor-supplier, can a union organize and represent employees in a unit where some of the employees are jointly employed and some are not? Under current law, the answer is “No,” on a theory that such a situation involves multiple employers and that multiemployer bargaining requires the “consent” of all employers.
Many commentators suggest the Board will use the Miller & Anderson case to find “appropriate” bargaining units consisting of a mix of jointly employed and non-jointly-employed workers. If so, the Board will probably overrule its 2004 Oakwood Care Center decision and return to the M.B. Sturgis rule that Oakwood Care overruled.
In 2004, the Board in Oakwood Care found that proposed bargaining units combining (1) directly-employed employees of one employer and (2) temporary (or contract) employees employed by two or more joint employers were inappropriate unless all affected employers consented. Oakwood Care represented a return to the law as it existed before a Board decision in M. B. Sturgis, which reversed longstanding Board precedent in 2000 by holding that such a “mixed” bargaining unit could be appropriate without both employers’ consent, so long as the employees had a community of interest.
The Board, in its May 18, 2015, Order granting review of the Regional Director’s decision in Miller & Anderson, indicated that it will be requesting amicus briefs on the issue, possibly following the well-traveled path of first asking for such briefs and then making big changes in established Board law. Given the current makeup of the Board, we anticipate that the Board majority will resurrect the M.B. Sturgis rule and overrule Oakwood Care. Such a result, coupled with the Board’s expected loosening of the standard for finding joint employment, will give unions seeking representation in jointly employed workforces many more options to target for organizing. Organized labor argues that the M.B. Sturgis rule better takes into account the realities of the modern workplace. Employers, on the other hand, argue that the National Labor Relations Act specially mentions the “employer unit” and that the M.B. Sturgis rule ignores conflicts inherent between “user” and “provider” employers and their employees. Businesses using temporary or contractor employees side by side with their own employees should be prepared for a likely change in the law.
Federal court in Texas rejects challenge to new NLRB “quickie” election rules, employer groups appeal. - Data and reports about the impact of the new NLRB quickie election rules are coming in. So far, it appears that unions are filing petitions at an unprecedented rate now that the path to election is shorter, and streamlined to the advantage of union organizers. A backlog of union “petitions-in-waiting” may be clearing out.
Early reports also indicate that unions are frequently filing petitions and then withdrawing them before any election, raising the question whether these are “tactical” filings intended to get organizing information from employers through the Board’s new information disclosure requirements.
Finally, the predictions of shorter petition-to-election times have come true. Several reports have attempted to calculate average time from petition to election. The methodologies are subject to “wrinkles” caused by various factors (including somewhat tricky and ambiguous Board data), but the early reports indicate that the time from petition to election is averaging less than 30 days, and is probably about 24 days. Expect this number to tighten even more as Regional Offices of the Board get accustomed to the new rules and get better at cutting days out of the process. Before the new rules, the time from petition to election generally was in the range of 35 to 42 days, so it appears that about two weeks of the typical “old school” campaign are gone. This is not a surprise, given that many possible issues for contested hearings are gone and employers are thus stipulating to election agreements, making the best of the situation presented by the new Board rules and NLRB Regional Offices that are taking their cue from the current pro-organizing Board majority.
New “Persuader Regulations” are on the way, probably at the end of the year. - NLRB Chair Mark Gaston Pearce testified before a Senate subcommittee on May 14 and said the Board was on track to clear the last 16 of 103 cases on its docket that were affected by the U.S. Supreme Court decision in Noel Canning, which held that the “recess” appointments of Richard Griffin Jr. and Sharon Block were unconstitutional. That may be good news to some, but still percolating through the system are Board cases and decisions by administrative law judges that have been affected by the invalidity of those decisions from the Noel Canning period. For example, ALJs of the Board in several cases have found that the decision in Alan Ritchey (finding a duty to bargain over disciplinary matters before an employer and the union enter into an initial collective bargaining agreement) was not binding precedent because it was issued by an invalid Board panel. Similarly, just beating the stated June 26 date, a panel of the current Board “reversed” a decision by an invalid panel in Fresenius USA Mfg., Inc. Who is going to make restitution to the economy and to employers, employees, unions, and the Board itself for these duplicative and wasteful proceedings? Apparently, it seems, no one.
Machinists union agent to worker: “Shut up, or IAM going to beat your a**, and IAM going to get you fired, too!” - Two union dissidents prevailed before a Board ALJ on their unfair labor practice charge that their union, a local of the International Association of Machinists, had threatened bodily harm and helped get them fired from Spirit AeroSystems in Kansas. The dissidents had forwarded a video clip of a motor vehicle accident to a number of people inside and outside the company. A union’s in-plant representative apparently got the email and sent it to company officials, asserting that it violated various company policies, including privacy, security, photography, and computer use at the facility. The company fired the employees, and one of the terminated employees then came to the plant to campaign for a dissident union candidate in an internal union election. The IAM agent allegedly told the former employee “to shut up before I beat your a**” and that he would make sure the employee was not reinstated.
The union has indicated that it is disappointed with the ruling and will seek review by the NLRB. No surprise there. The real surprise will be if the Board agrees that the Union should be held accountable.
