Employment Law Observer

On March 29, 2024, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) issued a final rule (Final Rule) amending regulations for workplace investigations. It clarifies that employees may authorize both employees and a non-exhaustive list of third-party non-employees to act as their representative and accompany OSHA Compliance Safety and Health Officers (CSHO) during physical workplace inspections.

On August 30, 2023, the U.S. Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking (NPRM) to amend its regulations regarding who employees may authorize to act as their representative and accompany the Compliance Safety and Health Officer (CSHO) during physical workplace inspections. Under the NPRM, the employees may designate an employee of the employer or a non-employee third party whose relevant experience with particular hazards or conditions or language skills are deemed reasonably necessary to conduct an effective and thorough inspection by the CSHO. Specifically, the NPRM clarifies that these non-employees may include interpreters, officials with advocacy groups or local safety counsels, and union representatives.

The battle over Scabby the Rat took another turn on July 21, 2021, when the National Labor Relations Board issued its anticipated decision and order in International Union of Operating Engineers, Local 150 and Lippert Components, Inc.

Earlier this week, the National Labor Relations Board ("Board") issued an important decision, returning to its prior precedent with respect to employee use of employer-provided email for Section 7 purposes. In Caesars Entertainment and International Union of Painters and Allied Trades, District Council, the Board overruled the Obama-era decision of Purple Communications, Inc. and returned to the rationale the Board had adopted during the George W. Bush era in Register Guard.

When motive is at issue in resolving certain unfair labor practices under the National Labor Relations Act (NLRA), the National Labor Relations Board (the Board) utilizes the burden-shifting framework established under Wright Line to make a determination. In Tschiggfrie Properties, Ltd., the Board took the opportunity to clarify the initial burden of proof required by the General Counsel in light of what it perceived to be confusion over a number of its recent decisions, as well as criticism from a number of federal courts, including, most recently, the Eighth Circuit.

In response to an amicus brief submitted by the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB) has agreed to review General Motors LLC, a case which reveals a tension between the National Labor Relations Act (NLRA) and Title VII of the Civil Rights Act of 1964 regarding employee racial outbursts during union activity. The EEOC requested the NLRB to change its test for determining whether or not an employee outburst is protected by the NLRA when it includes racially-charged language. The NLRB's decision could provide employers with more flexibility in disciplining employees for racial misconduct during union activity.

Several recent decisions by the National Labor Relations Board (NLRB) have analyzed the balance between employer property rights and union organization rights under the National Labor Relations Act (NLRA). These decisions appear to shift the balance in favor of employers. It is anticipated that the NLRB will propose a rule in the near future clarifying employer property rights in light of the recent decisions that have significantly modified past precedent.

T-Mobile USA, Inc. ("T-Mobile") in 2015 created T-Voice, a nationwide program through which customer service representatives could submit "pain points" regarding certain aspects of the job, including ideas to improve customer service. The majority of these pain points addressed customer service issues, such as billing, fraud procedures, access to computer programs, and at times, the type of music customers were subjected to while on hold. Some of the suggestions have led to action being taken by T-Mobile, like requests for device-charging stations, which resulted in T-Mobile installing three stations.

The National Labor Relations Board (NLRB) has proposed a new rule which would exclude undergraduate and graduate students from coverage under Section 2(3) of the National Labor Relations Act (NLRA). Specifically, students who perform study-related services in return for financial compensation at private colleges and universities would not be able to collectively organize as employees. The proposed rule is subject to a sixty-day comment period.

A unit clarification petition filed by the fledgling International Brotherhood of Professional Running Backs (IBPRB) was dismissed on September 17, 2019, by the Acting Regional Director of Region 13 of the National Labor Relations Board (NLRB). The IBPRB wanted to carve out running backs from the collective bargaining agreement between the National Football League Players Association (NFLPA)—the union that represents all NFL players—so that they could negotiate their own labor contract with the NFL. The IBPRB cited several reasons for their petition, including  "unique career structures," along with a claim that the mini-max rookie wage contract is economically harmful to running backs, but "advantageous" to quarterbacks.

From an employer's perspective, one of the most challenging decisions to come out of the Obama-era National Labor Relations Board (NLRB) was the concept of "micro-units" within an employer's organizational structure. Under the concept, employers could have multiple, small bargaining units, sometimes involving different unions, notwithstanding the fact that a broader group of employees shared a significant (though not ''overwhelming'') community of interest. That decision was later overruled by the NLRB in PCC Structurals, Inc. 365 NLRB No. 160 (2017), which restored the Board's prior standard for determining the appropriateness of a petitioned-for bargaining unit. Now, in The Boeing Company, 368 NLRB No. 67 (2019), the NLRB has further clarified the required analysis for this determination.

The National Labor Relations Board (NLRB) has revisited the issue of when an employer may restrict access to its private property by non-employee union agents. In Kroger Limited Partnership, a union business agent was denied access to the food store's parking lot to solicit Kroger's customers to boycott the store. When the union agent refused to leave, the supermarket called police to force the union agent to leave the premises. The NLRB was subsequently was called upon to assess whether Kroger's actions were unlawful and discriminatory under the National Labor Relations Act (NLRA).

A recent decision by a three judge panel of the federal D.C. Circuit Court of Appeals highlights potential pitfalls for successor employers who want to establish new compensation terms. In First Student, Inc., the D.C. Circuit panel concluded the employer in that case was a "perfectly clear" successor under existing precedent of the National Labor Relations Board (NLRB) because it intended to offer employment to the all of the employees of the unionized predecessor who met minimum criteria. The concept of a perfectly clear successor first was raised by the United States Supreme Court in NLRB v. Burns International Security Services, Inc.. In that decision, the Supreme Court noted that in certain circumstances it is "perfectly clear that the new employer plans to retain all of the employees in the unit," and the employer then is obligated to bargain with the union before making unilateral changes to wages, benefits, and other mandatory terms or conditions of employment.

On August 12, 2019, the National Labor Relations Board (NLRB) issued three proposed amendments to the rules on union representation elections. These three amendments, outlined below, would change the "blocking charge" policy, the voluntary recognition bar, and the rule on contractual representation clauses in the construction industry.

A Federal District Court in New York recently fielded the issue of whether there is such a thing as a union relations privilege and the extent of that privilege. In Hernandez v. Office of the Commissioner of Baseball (18 Civ.No.35), baseball umpire Angel Hernandez alleged that Major League Baseball (MLB) had discriminated against him with respect to crew chief assignments and post-season umpiring assignments. There was no evidence Hernandez filed a grievance under his collective bargaining agreement regarding his discrimination claim and this was key to MLB's defense. Hernandez asserted union privilege in order to protect any discussions with representatives of the Major League Baseball Umpires Association (the "Union"). A New York District Court Judge, agreeing with the Magistrate Judge's recommendation, determined that under federal common law, any union relations privilege would only cover communications made in the context of representation by a union representative during disciplinary proceedings under a collective bargaining agreement.

Illinois Governor J.B. Pritzker recently signed into law the Collective Bargaining Freedom Act, formally ending an initiative of former Illinois Governor Bruce Rauner. Effective as of April 12, 2019, the new law limits the ability of municipalities, counties, villages, and taxing districts to enact "right-to-work zones" which prevent employers and unions who work within the zones from executing, implementing, and enforcing union security provisions.

The United States Supreme Court issued its long-anticipated decision in Janus v. American Federation of State, County and Municipal Employee Council 31 on June 27, 2018.  The five to four majority held that requiring public-sector employees who are not union members to pay union agency fees violates the First Amendment.  In the final paragraphs of the majority opinion, the Court made it clear that in the context of a public sector employer-union relationship, non-member employees in the bargaining unit must provide express consent before union dues can be deducted from their paychecks.  Janus' implications for public employers are wide-ranging. However, the immediate question that unionized public-sector employers must address is how to administer existing agency fee provisions in collective bargaining agreements and distinguish between union members and non-members, whose express consent is now required before union dues can be deducted from their paychecks.  It is important to note that this decision is grounded in constitutional principles and only applies to public sector unionized employees.

Earlier this month, the National Labor Relations Board's (NLRB) General Counsel issued Memorandum GC-18-04 providing guidance on handbook rules in light of the Board’s Boeing Company decision. In Boeing, the Board reevaluated when a seemingly neutral work rule, handbook rule, or employment policy violates the rights of workers granted by Section 7 of the National Labor Relations Act (NLRA). In doing so, it adopted a new test balancing the negative impact a given rule may have on an employee’s ability to exercise his or her Section 7 rights versus the employer’s right to maintain a disciplined and productive workplace. It also laid out three categories of rules: those that are always lawful, those that are usually always unlawful, and those it depends-type rules falling into the middle category. The GC’s guidance sorts common workplace policies into these three buckets.

On Tuesday, the Wisconsin Court of Appeals lifted an injunction entered by the lower court freezing enforcement of 2015 Wisconsin Act 1, Wisconsin’s “Right-to-Work” law, dealing a blow to unions across the state.

How far can employees go during a labor dispute to make their case to the public? For years the National Labor Relations Board (NLRB) has granted employees a surprising amount of leeway, so long as their statements were not made with malicious intent and pertained to an ongoing labor dispute. In other words, employees could go quite far. Fortunately for employers, the 8th Circuit Court of Appeals recently tamped down this enthusiasm and redirected the NLRB to long-standing Supreme Court precedent.