With a new Administration, comes a new approach on how labor law should be enforced. The National Labor Relations General Counsel Jennifer Abruzzo released General Counsel Memorandum 21-04 “Mandatory Submissions to Advice” on August 12, 2021. Abruzzo’s Memo indicates changes to come with respect to evaluating whether an employer rule violates employees’ Section 7 rights.
For the first time in years the NLRB’s five-member Board, which decides cases and enacts regulations, has a Democratic majority. The Board will decide cases as presented. It is expected that case rulings will revise legal standards applicable to the workplace and reverse decisions from the previous Administration and the previous Republican majority on the Board.
As you know I sit as a legislative appointee to the California Committee on the Employment of Persons with Disabilities (CCEPD) and am newly appointed to and elected chair of the inaugural panel of the IACA Standing Committee for People with Disabilities authorized by the Legislature to develop standards for individuals with Disabilities in apprenticeship, with a focus on non-construction industries. In the course of my service I have worked directly with the Agency leaders of the California Future of Work Commission which has just released its initial report.
President Biden Names Peter Ohr Acting General Counsel of the NLRB
Following the unprecedented firing of National Labor Relations Board (“NLRB”) General Counsel (“GC”), Peter Robb, on January 25, 2021, President Biden designated Peter Sung Ohr (“Ohr”) to serve as Acting GC of the NLRB. Ohr, a career-long employee of the NLRB, began his career in the NLRB Honolulu Sub-regional Office as a Field Attorney, and in 2011, was appointed Regional Director of the NLRB’s Chicago Regional Office. As Acting GC, Ohr’s term is limited to forty days.
Before taking office President Biden identified former Boston Mayor and Building Trades official Martin Walsh as his nominee to serve as Secretary of Labor. Assuming the Senate confirms, the Secretary of Labor will carry significant weight on labor policy and enforcement involving issues including wage and hour, employee benefits, union and management reporting, workplace safety, and hot topic issues such as independent contractor misclassification.
While organized labor was dealt a major setback by the Supreme Court in Janus v. AFSCME, the landmark ruling does not impact the legality of union security clauses in the private sector. In Janus, the Supreme Court held that the state’s extraction of union dues from non-consenting public employees violates the First Amendment. The Court overruled Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that state and local governments could lawfully require public employees to pay “agency fees” as a condition of continued employment. Agency fees are intended to cover costs related to contract negotiation, grievance processing, and contract administration, but are meant to exclude costs related to union lobbying and political activism. Following Janus, public employees can no longer be compelled to contribute any dues to unions, including so-called agency fees.
In a 1975 case called NLRB v. J. Weingarten, the U.S. Supreme Court first set forth employees’ rights to representation during an employer interview. Over the past 43 years, these “Weingarten rights” have been refined by the National Labor Relations Board and the courts. Weingarten rights issues still arise and are still litigated. For instance, last year the D.C. Circuit Court of Appeals held that Weingarten rights did not apply when an employee was put on paid suspension pending an investigation (Bellagio v. National Labor Relations Board) or when an employee participated in a non-compulsory interview with a peer review committee (Midwest Division-MMC, LLC. v. National Labor Relations Board).
On February 25th, the National Labor Relations Board unanimously vacated its December 2017 ruling in Hy-Brand Industrial Contractors, Ltd., which determined standards for establishing joint employer relationships. This action was taken after the NLRB’s Inspector General reported that Board member William Emanuel had a conflict of interest when he ruled on the case.
On February 20th, the United States Supreme Court ruled that in a collective bargaining agreement, no ambiguities should be interpreted by the absence of a provision concerning the duration of retirees’ healthcare benefits. Benefits clearly expire when the collective bargaining agreement itself expires. The Supreme Court’s decision, CNH Indus. N.V. v. Reese, was unanimous.
The National Labor Relations Board is considering modifying its case processing procedures in ways that could benefit employers, according to an internal NLRB memorandum obtained by the paid subscription service Bloomberg Law.
Other AALRR Blogs
- How to Ensure Your Employee Handbook Does Not Infringe on Union Rights
- Changes at NLRB forecast major challenges ahead for employers and expansion of rights for employees and labor unions
- The Future of Work (And Workforce Enforcement)
- NLRB Policy Shakeup: President Biden’s Notable Changes at the NLRB Could Signal a Change in Board Policy for Years to Come
- Labor Law Change Coming Soon in Biden Administration
- Private-Sector Employers Unaffected by the Supreme Court’s Janus Decision on Union Dues
- FAQ re Employees’ Weingarten Rights to Representation
- NLRB Vacates Its Hy-Brand Ruling on Joint Employer Liability
- U.S. Supreme Court Holds That Retirees’ Healthcare Benefits Clearly Expire When the Underlying Collective Bargaining Agreement Expires
- New Memo Reveals NLRB Is Considering Procedural Changes Potentially Beneficial to Employers