December 22, 2017

Top Five Labor Law Developments For November 2017

Richard Greenberg, Christopher Repole, Jonathan Spitz

Jackson Lewis P.C.

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John Ring, a management-side labor and employment attorney, reportedly is undergoing background checks to become President Donald Trump’s nominee to fill the seat on the National Labor Relations Board that Chairman Philip Miscimarra vacated on December 16. Whether Ring will be the Administration’s nominee is uncertain, but his name is at the top of a short list of contenders for the seat. If nominated and confirmed, Ring would return the Board, which currently has four Members, to a 3-2 Republican majority.
NLRB Member William Emanuel has disclosed the names of more than 100 former clients and stated he will recuse himself from NLRB matters involving them. The disclosure on November 21 follows Emanuel’s previous disclosure of 48 clients, about whom he made the same pledge of recusal. Before his confirmation, Emanuel worked as a management-side labor and employment attorney focused on providing union avoidance advice to large corporate clients, among other areas. Emanuel also had pledged to recuse himself from NLRB matters involving his former law firm.
The NLRB and Equal Employment Opportunity Commission are working together to address a perceived conflict between the two agencies over employers’ rules requiring confidentiality during investigations into workplace harassment. At a meeting at the American Bar Association’s Labor and Employment Law conference on November 10, the Board’s then-acting General Counsel, Jennifer Abruzzo, told attendees that the NLRB is working with EEOC staff on joint guidance attempting to reconcile the agencies’ positions. The NLRB has taken a hard line against blanket confidentiality requirements in investigations, finding such rules chill protected employee discussions with colleagues. Meanwhile, the EEOC has promoted confidentiality in investigations as essential to ensuring that employees feel free to report workplace harassment. We will discuss in our next issue the NLRB overruling Lutheran Heritage-Livonia, which set forth the Board’s test for determining when employer rules interfere with employees’ Section 7 rights, in The Boeing Corp., 365 NLRB No. 164 (Dec. 15, 2017). It remains to be seen how that decision will affect how the NLRB views these blanket confidentiality requirements.
Bloomberg BNA reported on November 29 that the average wage increase in the first year of newly signed union contracts in the U.S. was 2.6 percent during the year ending on November 27, down from 2.7 percent over the same period in 2016. Bloomberg BNA compiled data from more than 600 collective bargaining agreements drawn from a variety of industries.
The NLRB has released data on the impact of the “Quickie Election Rule.” According to the November 17 report, for fiscal year 2017, the median time from an election petition filing to an election was 23 days – more than two weeks shorter than the average of 38 days under the Board’s pre-2015 procedures. The 2015 Rule amended the Board’s procedures for handling union elections, significantly shortening the time employers have to conduct election campaigns. We will discuss in our next issue the NLRB’s December 13 announcement that it was soliciting public comments on the quickie election rule, asking whether the rule should be rescinded, modified, or retained. (For more, see our blog post, Labor Board Asks: Retain, Modify, or Rescind ‘Quickie Election’ Rules?)

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.