|
General Counsel Issues New Memo on Deferral Procedures
In GC 19-03, the General Counsel reaffirmed the role of Dubo deferral in the administration of the Act, and clarified the circumstances and procedures applicable to Dubo deferrals. The Memo notes that Regions should continue to defer under Dubo Section 8(a)(1) and (3) cases meeting the standards for deferral, and should otherwise consider Dubo deferral in any Section 8(a)(1), (3), and (5) and Section 8(b)(1)(A) and (3) case where the allegations of the charge fall within its scope and the Charging Party or individual grievant has previously filed a grievance in a contractual process leading to binding arbitration.
To read the full memo, click here.
Operations Memo 19-05
On March 13, 2019, the Division of Operations-Management issued OM 19-05 on the subject of Noting Respondents Failure to Cooperate with ULP Investigations in Subsequently-Issued Complaints. The Memo notes that a charging party's failure to cooperate may result in dismissal of the charge, while a charged party’s failure to cooperate may unnecessarily complicate the ULP investigation or result in needless issuance of a complaint. Noting the General Counsel’s intention to strongly encourage both parties to cooperate with the Regional office, the Memo states that where a charged party’s lack of cooperation is significant, and the Regional Director has concluded that complaint should issue based on the evidence available, the Director is free to issue said complaint and may include a footnote noting the significant lack of cooperation in lieu of issuing an investigative subpoena, which could unnecessarily prolong the investigation and impede the prompt resolution of the underlying dispute. The memo is available here.
NLRB Sets Standards Affecting Beck Objectors, Union Lobbying Expenses Are Not Chargeable
Nonmember objectors cannot be compelled to pay for union lobbying expenses, the National Labor Relations Board ruled recently. The Board majority held that lobbying activity, although sometimes relating to terms of employment or incidentally affecting collective bargaining, is not part of the union’s representational function, and therefore lobbying expenses are not chargeable to Beck objectors. The ruling relies on relevant judicial precedent holding that a union violates its duty of fair representation if it charges agency fees that include expenses other than those necessary to perform its statutory representative functions.
The Board majority also held that it is not enough for a union to provide objecting nonmembers with assurances that its compilation of chargeable and nonchargeable expenses has been appropriately audited. Citing the “basic considerations of fairness” standard adopted by the Supreme Court, the Board held that a union must provide independent verification that the audit had been performed. Failure to do so violates the union’s duty of fair representation.
The case, United Nurses & Allied Professionals (Kent Hospital), 367 NLRB No. 94, is the Board’s long-awaited decision affecting certain rights of nonmember objectors under the Supreme Court’s decision in Communications Workers of America v. Beck, 487 U.S. 735 (1988). In that decision, the Supreme Court held that private-sector nonmember employees subject to union security who object to the expenditure of their agency fees for activities other than collective bargaining, contract administration, or grievance adjustment can only be compelled to pay that portion of the agency fee necessary to the union’s performance of “the duties of an exclusive representative of employees in dealing with the employer on labor-management issues.”
Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented.
NLRB Returns to Long-Standing Independent-Contractor Standard
On January 25, 2019, the National Labor Relations Board returned to its previous independent-contractor standard, reaffirming the Board’s adherence to the traditional common-law test. In doing so, the Board clarified the role entrepreneurial opportunity plays in its determination of independent-contractor status, as the D.C. Circuit has recognized.
The case, SuperShuttle DFW, Inc., 367 NLRB No. 75, involved shuttle-van-driver franchisees of SuperShuttle at Dallas-Fort Worth Airport. Applying its clarified standard, the Board concluded that the franchisees are not statutory employees under the National Labor Relations Act , but rather independent contractors excluded from the Act’s coverage. The Board found that the franchisees’ leasing or ownership of their work vans, their method of compensation, and their nearly unfettered control over their daily work schedules and working conditions provided the franchisees with significant entrepreneurial opportunity for economic gain. These factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, resulted in the Board’s finding that the franchisees are not employees under the Act. The decision affirms the Acting Regional Director’s finding that the franchisees are independent contractors.
The decision overrules FedEx Home Delivery, 361 NLRB 610, a 2014 NLRB decision that modified the applicable test for determining independent-contractor status by severely limiting the significance of a worker’s entrepreneurial opportunity for economic gain. Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented.
Significant Region 13 Settlements & Decisions
In Blackstair Capital, Case 13-CA-229051, the Region obtained a settlement from the Employer that remedied a discharge for engaging in protected concerted activities. The Charging Party employee had discussed his wages with other employees. The Employer instructed him not to discuss any of his terms and conditions of employment with other employees, and maintained rules regarding the confidentiality of employee wages. As part of the remedy, the Employer agreed to rescind its overbroad rules, and to pay a significant amount of backpay to the discharged employee. Cristina Ortega, supervised by Joyce Hofstra, investigated the case; Lisa Friedheim-Weis was assigned to the trial and negotiated the settlement.
In Local 134, IBEW (Summit Design + Build, LLC), Case 13-CC-225655, the Union agreed to settle a charge, without admitting wrongdoing, involving picketing against an employer (Summit) that was a neutral in a labor dispute. After threatening to picket the Employer, the Union posted agents near Summit’s jobsite and erected a large banner and an inflatable fat cat that was approximately 15 feet tall. The agents distributed handbills while at the site. As a result of the Union’s conduct, two subcontractors refused to enter the jobsite. To remedy the alleged violation, the Union agreed to cease its activity against Summit. Chris Lee, supervised by Joyce Hofstra, investigated and settled the case.
In Temp Tech, Case 13-CA-226275, and Qawasmi Trading, Case 13-CA-228751, the Employers agreed to settle charges, without admitting wrongdoing, involving refusals to bargain and recognize and making unilateral changes, including failing to make pension and benefits contributions and discontinuing employees’ healthcare coverage. The successor Employer had given up its right to unilaterally set initial terms and conditions of employment by telling employees in its first meeting with them at the transition point in ownership that they were a non-union operation. The case settled with the Employers agreeing to pay the owed benefits contributions as well as the medical expenses incurred by an employee who had lost coverage. Clinton Newman, supervised by Paul Prokop, investigated the case; Christina Hill was assigned to the trial and negotiated the settlement.
Region 13 Staff Available for Outreach
Region 13 has a seasoned staff of Field Examiners, Field Attorneys, Supervisors, and Managers who regularly participate in outreach events in an effort to make the public aware of our services. The NLRB enforces laws to protect workers from certain conduct by employers and by unions. We also hold elections to determine whether employees wish to be collectively represented. We protect the rights of workers to: engage in group activities to try to improve working conditions, wages and benefits; engage in union activities; and not engage in such activities.
Through our outreach program, we aim to educate workers, community groups, employers and labor organizations about the rights that we protect and the laws that we enforce. Labor law is dynamic and ever-changing, and we can help by explaining these rights and laws to all facets of the labor community.
Please contact us if you would like for someone from our office to make a presentation to your staff or to others who you believe may benefit from such a presentation. We can also provide someone for informational tables at events or conferences. Please keep us in mind. If you would like for a Region 13 staff member to speak to your group about the NLRB, please contact Paul Prokop at 312-353-7171 or paul.prokop@nlrb.gov.
|
