Labor Relations Insight by Phil Wilson
This month’s insight will be brief. If that’s not unusual enough, it’s also going to begin with a pitch. Then I’ll briefly reflect on President Biden’s unprecedented actions at the NLRB.
First the pitch. If you are reading this and aren’t a subscriber of
LRI Rightnow you have no excuse. I’m so proud of the product our team has developed and continues to improve almost daily. It’s hands down the best source of up-to-the-minute labor relations data and research on earth. It costs nothing to subscribe.
LRI Rightnow features numerous free libraries, including daily petitions reports (other services charge hundreds of dollars a month for these), a “one-click” way to find union LM financial data,
interactive maps, and real-time updates of our popular union scoreboard. The paid libraries allow you to dig into the most comprehensive online database (over 500,000 records) that you can now geo-locate and map. One of my goals for this quarter is to make sure the labor relations world knows about this incredible resource. Now that you know – the next step is to sign up for an account and you can do that
here.
Joe Biden certainly hit the ground running on the labor front. I expected him to take action quickly and thought there was a chance he would make the unprecedented move to remove Peter Robb from the General Counsel’s position. What I didn’t expect was that he would make this move (plus terminating GC Robb’s Deputy Alice Stock) on days one and two of the new administration.
These moves leave no question that Biden intends to live up to his campaign promise of being the most pro-union President in history. These moves are some great red meat to his Big Labor supporters. But they may have the unintended consequence of slowing his labor agenda to a crawl.
When I say unprecedented, I mean literally the first time in the history of the National Labor Relations Act. Twenty-three minutes after Biden took the oath of office the Administration notified General Counsel Robb that he must resign or be terminated that evening. Robb refused to resign and was terminated. The next day the Administration moved Alice Stock, the Deputy General Counsel, into the General Counsel position and she received the same ultimatum. Acting GC Stock also refused to resign and was terminated.
Neither General Counsel Robb nor Ms. Stock received any explanation for why they were fired. This move is extremely troubling. The NLRB General Counsel position was created to be independent from outside influences. General Counsels are nominated by the President and subject to the advice, consent, and confirmation procedures of the Senate for set four-year terms.
Not only is this the first time a General Counsel (or Acting GC) has been terminated by the President, at least eight other Presidents have left the prior General Counsel (including both Presidents Trump and Obama) in place to serve out their full terms.
The Biden Administration’s actions are not just unprecedented, they are probably illegal. There have been numerous arguments floated to justify the President’s right to terminate the General Counsel. None of these are persuasive. The duties of the NLRB General Counsel are not executive level, policymaking duties. The duties of the NLRB General Counsel are essentially prosecutorial in nature. They do not fit into any of the Supreme Court cases that allow a President to terminate a sitting appointed position.
Not only that, but this week the Administration named a Regional Director from Chicago (the same Regional Director who thought college football players should be considered employees of their college) to the Acting General Counsel role. This creates a fact situation akin to the one in
Southwest Ambulance where the Supreme Court ruled that an unusual appointment to the General Counsel’s role was unlawful. That decision resulted in hundreds of NLRB actions being ruled unlawful. It created a litigation and bureaucratic nightmare. Looks like we’re right back in that quagmire as well.
While these moves probably led to some high fives in the offices of Big Labor officials, none of this bodes well for the Administration’s labor agenda. They guarantee litigation, including quite possibly a fight over the Executive Branch’s authority that Democrats
might prefer to avoid with the current makeup of the Supreme Court. It probably means a pitched battle over the Secretary of Labor’s nomination and any future NLRB nominees. And it puts every NLRB decision over the next several years at risk of being overturned over a completely avoidable (and foreseeable) unforced error.
One thing I never thought I’d say is that I miss 2020. But the way this year started I almost think I do. I know elections have consequences, and I fully expect the Administration to aggressively pursue a strong pro-labor agenda. They should do that, it’s what they promised. But this is a terrible way to begin an Administration that’s supposed to be dedicated to unity and coming together. President Biden can still do the right thing. Consider the legal quagmire he just created – and the likely long term negative impact on accomplishing his goals – and reinstate Mr. Robb and Ms. Stock for the brief few months remaining in their term.
**********
Union Bailout Update
The recent
BMW Manufacturing Co. decision continues the Trump NLRB trend to more leniency in
evaluating company handbook policies, stemming from the 2017
Boeing Co. ruling. In
BMW, the board reversed an ALJ finding, giving the green light to the following Standards of Conduct outlined in the handbook:
1) requiring employees to “[d]emonstrate respect for the Company” and “[n]ot engage in behavior that reflects negatively on the Company”;
2) instructing employees to “[n]ot use threatening or offensive language”;
3) prohibiting use of “personal recording devices…[and][unapproved] use [of] business recording devices within BMW MC facilities”; and
4) requiring that any information the employer had not released to the general public must be treated as confidential.
Good news for now, but it’s likely the Biden board will begin to unravel the more lenient attitude the board has taken toward employer handbook provisions.
A December 7th ruling is a good reminder that an employee’s reasons for engaging in workplace advocacy or other protected activity —however arguably self-motivated—are immaterial to the objective determination of whether the conduct warrants protection under Section 7 of the Act. In this
very complicated case, the employee in question was terminated by the employer for evading investigatory questions and lying. Even though the employer claimed that his conduct
outside of the scope of protected activity justified their action, the board ruled in favor of the employee.
On January 6th the Department of Labor issued its final rule on who is an independent contractor, finally bringing needed clarity to this issue. Unfortunately, the Biden administration has already asked federal agencies to freeze proposed and pending regulations.
The rule reaffirms an
economic-reality test to determine whether an individual is in business for himself or herself—an independent contractor—or is economically dependent on a business for work. Someone in the latter category would be an employee covered by the FLSA.
Under the final rule, two core factors are integral to determining whether someone is an independent contractor:
- The nature and degree of control over the work.
- The worker's opportunity for profit or loss based on initiative and investment.
Three other factors that may serve as additional guideposts in the analysis are:
- The amount of skill required for the work.
- The degree of permanence of the working relationship between the worker and the potential employer.
- Whether the work is part of an integrated unit of production.
The actual practice of the worker and the business is more relevant than what may be contractually or theoretically possible.
Labor lawyers are mixed over their belief whether the new rule will withstand meddling from the new administration.
President Biden wasted no time in putting his stamp on the direction of labor law. On his first day in office,
Biden fired NLRB General Counsel Peter Robb, and sent notice to Robb’s replacement, Assistant General Counsel Alice Stock, asking her to resign or face the same fate.
The President then selected Boston Mayor
Marty Walsh as his Labor secretary. Walsh is a former union official, and has been accused of
involvement in extortion while in
his role as the head of the Boston Building and Construction Trades Council. Biden pointed to California Labor Secretary Julie Su for the role of deputy secretary under Walsh.
Su has been criticized for failing to prevent rampant unemployment fraud and lengthy delays in processing of claims, which may make her confirmation anything but a shoo-in.
The President then wielded the
sword of executive order to begin stripping many of the efficiency reforms enacted within the federal government by the prior administration. Biden minced no words in Section 1 of the order, stating “It is also the policy of the United States to encourage union organizing and collective bargaining.” (One wonders where in the Constitution that came from!) In addition to the revocation of prior orders and the disbandment of the Interagency Labor Relations Working Group, the order including a push to have all agency heads and their subordinates engage in collective bargaining and a move to bump the minimum wage for all federal employees to $15/hour.
Biden also
rescinded President Trumps Executive Order 13950, which limited diversity and inclusion training for federal contractors. A preliminary injunction had been issued against the Order, so federal contractors are now released from the uncertainty of their actions related to such training.
There is plenty of speculation around how the labor policy landscape may evolve. Below are a few articles that list a host of possibilities. It seems too early to attempt a synthesis, so we’ll just list the articles for your perusal:
**********
COVID-19
For employers who manage a unionized workforce, it is important to remember that even though you technically can mandate a vaccine in your workplace, you cannot do it without first bargaining with your workers union. Specifically, according to labor law expert Jill Lashay,
“If you unilaterally implement a mandatory vaccine policy when it’s not been addressed in your current collective bargaining agreement, that may lead to a successful unfair labor practice charge against the employer.”
More details here.
The EEOC originally provided guidance on how to handle a pandemic in the workplace during the H1N1 outbreak. They have updated their recommendations to address COVID-19. You can find the publication, which is organized into an easy-to-navigate FAQ format,
here.
Since the start of the pandemic through the end of 2020,
OSHA issued citations totaling almost $4 million in proposed penalties for pandemic violations. Top violations include failures to:
- Implement a written respiratory protection program;
- Provide a medical evaluation training for proper use of PPE;
- Report an injury, illness or fatality;
- Record an injury or illness on proper OSHA recordkeeping forms; and
- Comply with the General Duty Clause of the OSHA Act of 1970.
The NLRB has issued two more
advice memos on remote bargaining and hazard pay during the pandemic. They include:
- Good faith bargaining may not require remote negotiations; and
- An employer need not agree to reopen contract for hazard pay negotiations
And lastly on the pandemic front, the effect of COVID-19 on
mental health in both on-site and remote workers is becoming hard to ignore. Research suggests and intuition assumes that the hardest hit are the frontline healthcare workers; but even among the general workforce, the data indicates a higher risk of symptoms of anxiety or depression, increased substance abuse, and general difficulty coping with stress.
