Category: Labor Law

April 13, 2018

John Ring Joins the NLRB

On April 11, 2018, the U.S. Senate narrowly confirmed management-side labor attorney John Ring as the fifth member of the National Labor Relations Board. Ring fills the seat vacated in December 2017 by former Board Chairman Philip Miscimarra. The Senate voted 50-48 along party lines. Ring, a Republican, was a partner with Morgan, Lewis & Bockius LLP before his confirmation.

Current NLRB

Following Ring’s confirmation, the White House announced that he would replace Marvin Kaplan as Chair of the NLRB. President Trump had just named Kaplan the Chair in December. Despite the unusual demotion, Kaplan confirmed he would remain on the Board.

In addition to Kaplan, Ring joins members William Emanuel, Mark Pearce, and Lauren McFerran on the Board.

Other than formally making Ring the Chair, no further changes to the Board’s composition are expected until Member Pearce’s term expires on August 27, 2018. Traditionally, no more than three members of the Board have represented the same political party. However, that is not dictated by law. Thus, it will be interesting to see what the White House does regarding Pearce’s seat.

Republican Majority

Republicans now hold 3-2 majority control of the Board. This foretells a continued shift away from pro-labor decisions by the Obama-era NLRB. The Republicans recently held the majority for just a short time before Miscimarra’s term expired. They issued several significant reversals in the last days of his term. (Read more in 2017 NLRB Buzzer Beaters.)

However, the Republican majority still faces a hurdle that may slow the anticipated shift in federal labor law. Member Emanuel’s vote in one of the December 2017 reversals (regarding the joint employer standard) created controversy based on an alleged conflict of interest. Emanuel’s former firm had represented a party in the case that was overruled. The Board subsequently excluded Emanuel and vacated the decision in which he had participated, reverting to the Obama-era precedent.

Emanuel, who had been a partner at national labor law firm Littler Mendelson, may face similar conflicts in many other cases. Ring could also struggle with conflict issues given Morgan Lewis’ substantial client list.

More About John Ring

Before his confirmation, John Ring was a co-leader of Morgan Lewis’ labor/management relations practice.

He received his Bachelor’s Degree from Catholic University and his law degree from Catholic University’s Columbus School of Law. He is a Fellow of the College of Labor and Employment Lawyers.

March 29, 2018

What Could Janus Mean for New York?

A case pending before the U.S. Supreme Court could have a major impact on public-sector unions throughout the country. The Court’s decision might allow any government employee to refuse to pay union dues. The case is Janus v. American Federation of State, County and Municipal Employees (AFSCME) Council 31. The Supreme Court heard the parties’ arguments on February 27, 2018. It should issue its decision this spring.

Janus v. AFSCME Council 31

In February 2015, then-newly elected Illinois Governor Bruce Rauner issued an executive order prohibiting Illinois state agencies from enforcing agreements requiring employees who are not union members to pay union fees. Governor Rauner began a lawsuit in federal court seeking to declare that his executive order is valid and that the First Amendment bars these forced-fee arrangements.

Mark Janus joined the litigation. He is part of a bargaining unit including many titles of state employees. AFSCME Council 31 represents the bargaining unit. Janus is not a union member. But he is nonetheless represented by AFSCME Council 31 based on his position being part of the bargaining unit.

The federal district court dismissed the case, and the U.S. Court of Appeals for the Seventh Circuit upheld the dismissal. These courts relied on the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education. In Abood, the Supreme Court ruled that although public employees cannot be required to pay for unions’ political activities, they can be required to contribute to the union’s actual costs of contract negotiation and administration.

In September 2017, the Supreme Court agreed to hear Janus’s appeal. He is asking the Court to rule that, under the First Amendment, public employees cannot be required to fund unions against their will.

Outcome Foretold?

Many predict that Janus will prevail based on another Supreme Court ruling from two years ago.

The case of Friedrichs v. California Teachers Association raised substantially the same constitutional questions as Janus. The Court heard oral arguments in Friedrichs in January 2016. Before a decision came down, Justice Antonin Scalia passed away unexpectedly in February. Down to eight Justices, the Court issued a 4-4 split decision. This result affirmed the lower court’s decision, which was consistent with Abood.

With the addition of Trump appointee Neil Gorsuch, who is commonly associated with the conservative Justices who would have found the California law unconstitutional in Friedrichs, it would not be surprising if the Court reaches a 5-4 decision in Janus’s favor this time.

What a Reversal Would Mean

Unless the Supreme Court somehow limits its decision more narrowly, a finding in Janus’ favor would likely apply to public employees throughout the country. However, the primary impact would be felt in states where public employees may unionize for purposes of collective bargaining with their government employers. That is a matter of state laws, as the National Labor Relations Act only applies to private-sector workplaces.

In New York, California, Illinois, and elsewhere, public employees may raise their hands and object to paying anything to unions that represent them. This response could potentially create significant funding deficits for public-sector unions. In New York, the largest of these include AFSCME, the Civil Service Employees Association (CSEA), and the New York State United Teachers (NYSUT).

Although it’s possible this ruling would cause union membership to go down among public employees, many employees will probably still support their unions. If nothing else, individual employees may be reluctant to upset their co-workers by refusing to contribute. Some employees will fear reprisal, whether warranted or not.

It’s too early to predict whether the ability to withdraw financial support will lead to union decertification. Or whether unions will effectively abandon representation of some units based on lack of funding by the bargaining unit members.

It’s also not clear that employers would necessarily welcome these changes to their established bargaining relationships. Among other possibilities, employers may see one union leave only to be replaced by another that is more difficult to deal with.

Should Employers Do Anything Now?

This is a constitutional question pending before the Supreme Court. Thus, there’s not much that anyone can do to change the legal outcome. It will be whatever the Court says it is, barring a constitutional amendment, which is unlikely to occur anytime soon.

That doesn’t mean that everyone is just sitting back and waiting for the decision. If the Court decides against unions, they will employ countermeasures. Most obvious, they will try harder to persuade employees to join and pay dues. Whether an individual government entity can or should try to educate employees otherwise may depend on state laws and specific circumstances.

For many public employers, the most important thing is to watch out for the decision and continue to keep eyes and ears open to see how employees and unions respond. In some cases, it will probably become necessary for employers to develop new labor relations strategies based on any related developments. But that will not be a one-size-fits-all reality.

March 23, 2018

General Counsel Reports on the NLRB

On March 14, 2018, NLRB General Counsel Peter Robb issued a memorandum in response to questions and concerns raised at the Midwinter Meeting of the American Bar Association’s Practice and Procedure Under the National Labor Relations Act Committee of the Labor and Employment Law Section. This is an annual tradition for the General Counsel of the National Labor Relations Board.

As the newly confirmed General Counsel, this is Robb’s first time issuing such a report. For those who don’t have the time to read all 27 pages, here are some highlights.

Reorganization of Field Operations

In his first months as General Counsel, Robb has raised many eyebrows and ruffled a fair number of feathers. This has primarily occurred through his designs on reorganizing how the NLRB’s field offices operate.

On this subject, the GC’s memorandum offers:

The General Counsel is currently soliciting input from Agency HQ and Field staff for the purpose of formulating recommended changes to existing case processing procedures. At an appropriate future point, the General Counsel, again in deliberation with Agency staff, will examine and may propose, as appropriate, recommended changes to the structure of the Field offices. No decisions have been made at this time.

The report further indicates that the changes are under consideration for budgetary purposes, adding:

The results of such changes may be to generate benefits in several potential areas, including perhaps: improvement in the efficiency, timeliness, quality of services and organizational decision making, elimination of unnecessary levels of management and administrative support, maximization of employee performance, reduction in travel and other case processing expenses.

The General Counsel also suggests that any changes to the structure of the field offices “will be open for public comment prior to implementation.” He identifies a target effective date of October 1, 2018.

Unfair Labor Practices

In the memorandum the General Counsel reports case-handling statistics for Fiscal Year 2017.

The NLRB received 19,280 charges last year. It settled 95% of them. The agency issued 1,263 formal complaints based on charges. Overall, the NLRB found merit in only 38.6% of the charges filed.

The report includes much more data on topics including:

Motions for Summary Judgment
Deferrals
Subpoenas
Section 10(j) Injunctions
Submissions to the Division of Advice
Charges on Particular Subjects

Representation Cases

Union representation petitions resulted in 1,205 elections in FY 2017. Unions won 71% of these elections. Across these elections 80.5% of the 81,646 eligible employees voted. Overall, 46.7% of the eligible employees voted “yes” and 33.7% voted “no.”

The NLRB also conducted 173 decertification elections. Unions won 32% of these elections, yielding a 68% decertification rate.

The GC’s memorandum also includes a chart of days to election from FY08 to FY17. From 2008 to 2014, there was a median each year of 37 or 38 days from filing of an election petition to the date of the election. In 2015 the number dropped to 33. Over the past two years it has been much lower at 23 days.

The average size of bargaining units has ranged from 24 to 28 between FY07 and FY17. The 2017 average of 24 employees matches that of 2007, 2009, and 2017.

More to Come from the General Counsel and the NLRB

This will not be the last we hear about the NLRB this year. There is still one vacancy on the 5-member Board. Management-side labor attorney John Ring awaits Senate confirmation. When he, or someone else, joins the Board, the new member will join Chairman Marvin Kaplan and Member Bill Emanuel giving the NLRB a Republican majority. They are likely to get back to work changing Obama-era precedents favorable to labor.

One issue still on the table is the fate of the Obama Board’s so-called “quickie” election rules. Late last year a temporary Republican majority issued a request for information suggesting an interest in changing the representation procedures. The Board has now twice extended the time to respond to the RFI. The current deadline is April 18, 2018.

Labor attorneys representing both sides will also be interested to see whether and how the General Counsel proposes to reorganize the NLRB’s field offices. This could significantly affect how the agency operates.