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Top Five Labor Law Developments for March 2018

  • April 16, 2018
  1. The National Labor Relations Board (NLRB) continued to deal with tumult over the “joint-employer” issue. On March 1, the Board asked the U.S. Court of Appeals for the D.C. Circuit to resume considering an appeal of Browning-Ferris Industries, 362 NLRB No. 186 (2015), the NLRB decision that made it easier for unions and employees to prove entities are joint-employers. The request followed a number of reversals by the Board on the joint-employer issue. In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), the Board reversed Browning-Ferris and restored the Board’s previous, more employer-friendly test for determining whether entities are joint employers, and therefore can be held jointly liable for labor law violations. However, the Board subsequently vacated Hy-Brand over concerns that Member William Emanuel had a conflict of interest and should not have participated in the case. Browning-Ferris filed a motion with the D.C. Circuit opposing the Board’s request to reconsider Browning-Ferris, arguing the request was “premature” until the Board rules on a pending motion for reconsideration in the Hy-Brand matter (discussed in #2 below). D.C. Circuit on April 6 granted the Board’s motion to reopen the Browning-Ferris appeal and placed the case in abeyance until the Board rules on the pending motion for reconsideration in Hy-Brand.


  2. The roles individual NLRB members played in the decision to vacate Hy-Brand are being scrutinized. In a March 9 motion for reconsideration, Hy-Brand asked the Board to reconsider its decision to vacate, arguing the NLRB denied the company’s due process rights by excluding NLRB Member William Emanuel from deliberations over the decision to vacate. The motion for reconsideration also argued the decision to vacate was tainted by Member Mark Gaston Pearce’s disclosure at an American Bar Association conference that an “important decision” was coming, just one day before the decision to vacate became public. The motion argued that the disclosure was “an egregious breach of confidentiality and the Board’s deliberative process” and further justified reconsidering the decision to vacate. The request for reconsideration is pending. In a March 22 letter to the Board’s Inspector General, Member Emanuel maintained he did not have a conflict of interest and did not violate NLRB rules when he voted in Hy-Brand.


  3. NLRB General Counsel (GC) Peter Robb stated he will continue efforts to issue joint guidance with the Equal Employment Opportunity Commission (EEOC) on workplace civility, the NLRB announced on March 6. Prior to Robb’s confirmation as GC, EEOC Acting Chairwoman Victoria Lipnic worked on guidance with former Board Deputy General Counsel Jennifer Abruzzo. When the initiative was announced in 2017, the participants explained it as an effort to clarify the line between harassment and protected speech at work. While many employers institute rules requiring workplace civility based on concerns over EEOC litigation, the NLRB has taken a hard line against such rules, finding that they may chill employees from engaging in concerted activity. In Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), the Board strongly suggested that it would look more favorably upon civility and similar rules.


  4. The NLRB avoided cuts to its budget in 2018, but it may face cuts in 2019. In an omnibus Fiscal Year 2018 budget that passed the U.S. Senate and House of Representatives on March 19, the NLRB received $274 million, matching the funding level for 2017. However, the Trump Administration has proposed a 9% cut to the NLRB budget in FY 2019, correlating to a 7.2% decrease in the number of full-time NLRB employees. While the cuts might not be implemented, the Board has taken steps to cut costs. Among other cuts, the Board is planning to announce a hiring freeze and to eliminate certain performance awards. Echoing the changes proposed in the Trump Administration plan, GC Robb has suggested that cuts to NLRB staff may be necessary. The union representing NLRB employees has publicly opposed the possible reduction in staff, arguing the budget cuts are not yet certain.


  5. In a memorandum, the NLRB’s Division of Advice found that an employer violated the National Labor Relations Act (NLRA) when it fired employees who participated in the “Day Without Immigrants” national protest. EZ Industrial Solutions, LLC, 07-CA-193475 (Div. of Advice, Aug. 30, 2017) (released March 2018). Eighteen employees missed work as part of the protest, a nationwide one-day strike organized by groups opposing the Trump Administration’s stances on immigration. The employer fired all the employees who missed work, and the employees filed unfair labor practice (ULP) charges. The Division found the terminations violated the NLRA because the protests leading to the terminations constituted protected concerted activity. It also found the protest, had a direct nexus to the terms and conditions of work because it was in response to the sudden increase in workplace immigration raids in the U.S. The Division also found the employer violated the NLRA by asking one of the protesters about the details of the ULP charge before terminating him.

Please contact a Jackson Lewis attorney if you have any questions about these developments.

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