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NLRB Acts on General Counsel Agenda

In case you thought the National Labor Relations Board might be slowing down a bit on its radical pro-union agenda take a close look at its recent attack on the independent contractor status of port drivers in California.

Board members might not forge sweeping policies before the end of Obama’s presidency, but NLRB General Counsel Richard E. Griffin Jr. detailed in a recent memo to regional directors how he is seeking cases to carve out new precedents that could transform both nonunion and nonunion companies’ employment practices for years to come.

“From the large laundry list of topics covered in the general counsel’s memorandum, it’s clear that the NLRB is far from scaling back on issuing future decisions that will overturn long-standing legal precedent,” says Harold Coxson an attorney with Ogletree, Deakins, Nash, Smoak & Stewart.

“In fact, if the general counsel’s memorandum is a roadmap for the future, perhaps the better question is not what’s next at the NLRB but what’s not next?” he adds.

Griffin’s instructions to the NLRB regional directors are especially significant because they direct them to the cases he has personally identified as necessary for changing existing law. It also is a departure from the usual practice of the regional directors selecting which cases they choose to handle on their own.

The board itself does not issue complaints. Instead, the law says that any person may file an unfair labor practice charge with a regional director, who is a designee of the NLRB’s general counsel. If the director believes there is sufficient merit to the charge, then he or she may issue a complaint.

Griffin made it clear in his memo that he regards misclassification of employees as independent contractors as a top priority.

Roxson notes that the NLRB counsel also is casting a wide net for cases in which employee misclassification could be defined as a violation of the federal labor law under which the board’s operates – as he chooses to interpret it.

Is Contractor Status an Unfair Practice?

Attorney Steven Swirsky of the law firm of Epstein Becker Green says Griffin will argue that classifying workers as independent contractors inherently denies them the right to engage in protected concerted activities regarding wages and working conditions.

Olivia Garcia, NLRB Los Angeles regional director, followed up on the memo by issuing an unfair labor practice complaint on April 18 alleging just such an unfair practice regarding truck drivers.

The charge was brought at the behest of the Teamsters union, through its’ Justice for Port Truck Drivers campaign, claiming that the drayage carrier Intermodal Bridge Transport has misclassified its drivers as independent contractors instead of as employees, whom the union could organize.

The legal theory behind the complaint comes straight out of the general counsel’s memo: That under federal labor law employees have the right to unionize or engage in other protected, concerted activity, and that if an employer classifies a worker as an independent contractor, it unlawfully deprives the worker of those rights.

(Muddying the water in this particular case is that it also includes charges that the company also engaged in activities like intimidating and threatening drivers for their union activities – well-established violations if found to be true.)

“This appears to be but one aspect of the general counsel’s intention to pursue cases involving the gig and on-demand economy,” Swirsky comments.

“We expect this to also reflect an effort to expand the application of the board’s 2015 Browning-Ferris decision expanding the definition of joint employer.” The Browning-Ferris ruling currently under appeal in federal court and is the subject of congressional legislation aimed at overturning it (AA, 12-15-15, P. 4).

Additional Lines of Attack

Another of Griffin’s agenda items involves alleging unlawful motive when employers hire permanent replacement workers during an economic strike, which is defined as a strike by employees over wages, hours or working conditions – as opposed to an unfair labor practice strike called in protest against allegedly unfair practices by an employer.

Under current law, returning economic strikers may be placed on a preferential rehire list but are not entitled to be automatically rehired after the strike ends, while long-term replacement workers are entitled to continued employment.

(This contrasts with an unfair labor practice strike, where returning strikers must be rehired and replacement workers let go to make room for them.)

Roxson says Griffin’s goal is to restrict or diminish the impact of long-established NLRB and Supreme Court precedents dating back to the 1930s.

Griffin also is looking for cases that will help the NLRB expand unions’ access to employer’s electronic systems for purposes that go beyond organizing campaigns.

In 2014 the board held that unions must be given access to an employer’s email system and property for union solicitation. The cases sought by the general counsel would help to allow access to a broader group of electronic systems, which could include text and other communication systems.

Griffin seeks cases involving access by non-employees to employer electronics communication systems; access by non-employees such as union organizers to work areas; and that can provide unions with “equal time” to respond to employer “captive audience” speeches prior to elections.

Such cases also could address the right to hold in-person meetings for non-work purposes on an employer’s premises.

At the same time, the general counsel is looking for other cases where he can allege an employer’s unlawful surveillance of employee emails.

In its 2014 email decision, the NLRB held that employers in certain circumstances can restrict or prohibit the use of company email systems for communications where such a restriction is necessary to maintain production and discipline.

However, the board made it clear that the burden of proof lies with the employer to establish why such a prohibition or restriction is necessary.

In his memo Griffin is now directing the regional directors to refer all cases in which this question arises to his office for close scrutiny and to identify ones in which he can argue just how narrowly the standard should be applied, specifying the burdens an employer will need to satisfy.

In addition, among the 10 categories of cases identified in the memo is one that could allow nonunion employees to use union representatives in grievance hearings.

One agenda item in Griffin’s memo aims to confront employers who enforce English-only policies in their workplaces. Another seeks to make it more difficult for an employer to declare a collective bargaining impasse needed before it can implement its last, best and final offer.  

Employers Sue Over DOL Persuader Rule

As was anticipated when it was issued, the Department of Labor’s new “Persuader” rule is facing multiple challenges before federal courts.

The rule requires that after July 1 employers file annual public reports with DOL outlining the arrangements, agreements and payments they’ve made for outside advisors – including attorneys – who provide information on how to deal with labor unions.

In addition to requiring reporting on the use of lawyers, public relations firms and labor consultants, the rule also says companies must report other, even more indirect advisors such as trade associations that hold labor relations seminars and workshops for their employer members.

An earlier persuader reporting rule in effect since 1959 only required employers to report on outsiders hired to communicate directly with their workforce. The new rule mandates reporting on any labor advisor to management, even if they don’t directly communicate with employees (AA, 3-31-16, P. 1).

Lawsuits filed in federal courts in Arkansas, Minnesota and Texas argue that the rule exceeds DOL’s jurisdiction; violates free speech and due process rights; and is overly broad because it requires disclosures of all receipts from all advisors regardless of the purpose of the advice or services.

The Arkansas suit was filed by the Associated Builders and Contractors of Arkansas, Arkansas Chamber of Commerce, a law firm and the Coalition for a Democratic Workplace, the National Association of Manufacturers, which consists of more than 600 industry associations.

The Minnesota suit was filed by a group of 11 law firms who are members of an association of independent law firms called Labnet Inc. d/b/a Worklaw Network. Many lawyers believe that the new rule violates attorney-client confidentiality.

The lawsuit in Texas was filed by the National Federation of Independent Business, Lubbock Chamber of Commerce, National Association of Home Builders, Texas Association of Builders and Texas Association of Business.

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