National Labor Relations Board

Our colleague Steven M. Swirsky at Epstein Becker Green has a post on the Management Memo blog that will be of interest to our readers: “NLRB Reverses Key Rulings: Returns to Pre-Obama Board Test for Deciding Joint-Employer Status and for Determining Whether Handbooks, Rules and Policies Violate the NLRA – Assessment of 2014 Expedited Election Rules and Future Changes Also Announced.”

Following is an excerpt:

It should come as no surprise that recent days have seen a stream of significant decisions and other actions from the National Labor Relations Board as Board Chairman Philip A. Miscimarra’s term moves towards its December 16, 2017 conclusion.  Chairman Miscimarra, while he was in a minority of Republican appointees from his confirmation during July 2013 and as a new majority has taken shape with the confirmation of Members Marvin Kaplan and William Emanuel, has clearly and consistently explained why he disagreed with the actions of the Obama Board in a range of areas, including the 2015 adoption of a much relaxed standard for determining joint-employer status in Browning-Ferris Industries, the standard adopted in Lutheran Heritage Village for determining whether a work rule or policy, whether in a handbook or elsewhere would be found to unlawfully interfere with employees’ rights under Section 7 of the National Labor Relations Act to engage concerted action with respect to their terms and conditions of employment, and his disagreement with the expedited election rules that the Board adopted through amendments to the Board’s election rules. …

In Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co., decided on December 14, 2017, in a 34-2 decision, the Board has discarded the standard adopted in Browning-Ferris, and announced that it was returning to the previous standard and test for determining joint-employer status and returning to its earlier “direct and  immediate control standard.”  …

In The Boeing Company, also decided on December 14, 2017, the Board adopted new standards for determining whether “facially neutral workplace rules, policies and employee handbook standards unlawfully interfere with the exercise” of employees rights protected by the NLRA. …

Noting that the 2014 Election Rules were adopted over the dissent of Chairman Miscimarra and then Member Harry Johnson, and the fact that these rules have now been effect for more than two years, on December 14th, the Board, over the dissents of Members Mark Pearce and Lauren McFerren, both of who were appointed by President Obama, published a Request for Information, seeking comment …

Read the full post here.

On April 3, 2017, a federal district court in New Jersey rejected the National Labor Relation Board’s (“NLRB”) D.R. Horton and Murphy Oil holdings and upheld employee waivers of class and collective arbitration. In dismissing wage and overtime claims brought by an employee of Chili’s Grill & Bar, District Judge Noel Hillman ruled that such mandatory arbitration agreements do not violate the National Labor Relations Act. Cicero v. Quality Dining, Inc., et al, 1:16-cv-05806 (April 3, 2017).

Judge Hillman noted the issue was pending before the U.S. Supreme Court, and that the Third Circuit had yet to rule on the issue. However, he also noted a related action, Joseph v. Quality Dining, in the Eastern District of Pennsylvania and a similar case decided by another federal district judge in New Jersey in Kobren v. A-1 Limousine Inc., both of which also rejected the NLRB’s position.

The NLRB has acquiesced in employers requiring employees to waive court action and agree to submit to arbitration wage and overtime and other employment related claims. However the Board has insisted that employees may not be required to arbitrate each employee’s claims separately, in individual arbitration. This, the Board contends, interferes with employees’ rights to participate in concerted activities for their mutual aid and benefit, otherwise protected under Sections 7 and 8 (a) (1) of the NLRA. In making this argument, commentators point out that the Board appears to be neglecting the second part of Section 7 which expressly reserves to employees the right to refrain from participating in any and all concerted activity.   NLRB opponents contend that waivers of class and collective arbitration are an exercise of that right.

The Supreme Court will hear arguments in the Fall in Murphy Oil and consolidated cases as to whether the NLRA prohibits an employer from requiring employees to agree to waive their rights to arbitrate employment disputes on a class or collective basis, or whether the Federal Arbitration Act favoring arbitration controls. Conservative Judge Neil Gorsuch of the Tenth Circuit has recently been sworn in as a Justice of the United States Supreme Court and will take the seat of Justice Scalia, who passed away a year ago. It remains to be seen how the Court will rule on this very important employment law issue.