In an article published by the Society for Human Resource Management (SHRM), Bass, Berry & Sims attorney Tim Garrett provided insight on a 2015 National Labor Relations Board (NLRB) ruling that reinstated a worker who made racist remarks to replacement workers during a strike. Tim states that an employer that does nothing in response to racist slurs risks liability under Title VII Civil Rights Act of 1964, regardless of NLRA protections. In this case, Tim stated “the board accepted a ‘vicious personal attack’ based on stereotypes that society is trying to overcome.”

Recent NLRB decisions, such as the one in this case protecting free speech as part of concerted activity, are contradictory to guidance issued by the Equal Employment Opportunity Commission (EEOC) recommending training all employees on civility. The SHRM article outlines the inconsistent approach between the two agencies and ways to overcome the differences.

The full article, “EEOC Guidance on Harassment Calls for Civility Training,” was published by SHRM online on January 13, 2017, and is available online.

The United Auto Workers (UAW) is celebrating a rare win among Southern auto plants, after a small unit of maintenance workers at the Volkswagen plant in Chattanooga, Tennessee voted to unionize.  The unit makes up only 12% of the 1,400 production and maintenance workers, and they voted 108-44 in favor of the UAW.  VW is appealing an earlier ruling by the National Labor Relations Board (NLRB) that allowed a vote of such a small unit of workers within the much larger plant.  This appeal sets the stage for a possible legal battle for years to come. 

This victory comes almost two years after the UAW lost a much-publicized plant-wide vote in February 2014.  Tennessee Governor Bill Haslam, when asked for his reaction to the most recent vote, down-played the UAW win, claiming that the victory came because the union was able to “cherry-pick” the employees who were included in the vote.

This UAW win further informs employers about the impact of the NLRB’s ruling allowing such “micro-units.”

Bass, Berry & Sims attorney Bill Ozier commented on the outcome of the latest union vote at the Volkswagen (VW) plant in Chattanooga, Tennessee. The company’s skilled maintenance employees at the VW plant in Chattanooga voted last week to designate the UAW as their collective bargaining representative. The vote among this smaller group of employees follows the vote against union representation by the company’s entire hourly work force in February 2014. Volkswagen has indicated that it will appeal the decision by the NLRB’s Regional Director to allow the vote among the smaller group to the full NLRB in Washington, D.C., although Bill projects that the Board will follow its recent precedent and not overturn the vote.

The full article, “Tennessee Governor Dismissive of ‘Cherry-picked’ UAW Victory,” was published the Associated Press on December 7, 2015 and is available online.

In a ruling on August 17, 2015, the National Labor Relations Board (NLRB) decided that it should not exercise jurisdiction over the unionization attempts by Northwestern football players.  The NLRB “punted” the issue and declined to decide whether the football players were employees permitted to unionize under the National Labor Relations Act. Continue Reading Northwestern Football Players’ Unionization Drive Halted

Bass, Berry & Sims attorney Tim Garrett wrote an article summarizing the SEC’s April  1 announcement that it had settled an enforcement action over an employer’s use of a restrictive confidentiality agreement.

Tim made the point that the SEC’s action was consistent with similar efforts by the National Labor Relations Board and the Equal Employment Opportunity Commission. “These agencies have been reviewing critically the confidentiality provisions of severance agreements and documents used as part of internal investigations,” he wrote. “This announcement from the SEC is a further reminder that employers should have such confidentiality provisions reviewed by counsel or risk similar consequences.”

The full article, “SEC Settles Enforcement Action for Overly Restrictive Confidentiality Agreement” was published by Employee Benefit Adviser on April 2 and is available online.

Bass, Berry & Sims attorneys Tim Garrett and Dustin Carlton authored the article “NLRB’s Expansive View: The Northwestern ‘Football’ Ruling and Why Inside Counsel Should Care,” that was published by InsideCounsel on November 13. In the article, the authors discuss how the recent NLRB decision in the Northwestern University case may indicate a broader approach to union rights and how the decision could impact all employers in the U.S. To read the full article, click here.

On October 28, 2014, the National Labor Relations Board (the “Board”) again held that employers violate Section 7 of the National Labor Relations Act (“NLRA”) when they require employees to sign class action waivers as a condition of their employment.  The Board first so held in D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012).  Although numerous courts have since rejected the Board’s reasoning in D.R. Horton, the Board nonetheless reaffirmed its position, meaning that employers who maintain such agreements will continue to face significant hurdles to their enforcement.

In Murphy Oil USA, Inc., 361 NLRB No. 72 (Oct. 28, 2014), the employer (“Murphy Oil”) required, as a condition of employment, that all employees sign a Binding Arbitration Agreement and Waiver of Jury Trial (the “Agreement”).  The agreement specifically provided:

Continue Reading NLRB Won’t Budge on Class Action Waivers: Finds that Murphy Oil’s Mandatory Arbitration Agreements Violate the NLRA

In a landmark decision, the United States Supreme Court ruled yesterday that President Obama’s three recess appointments to the National Labor Relations Board (NLRB) were unconstitutional.  Click here for the ruling.  President Obama had relied upon the Constitution’s Recess Appointments Clause to appoint three members of the NLRB.  The Court ruled, however, that the “pro forma” sessions in January 2012 when the recess appointments were made were not truly a “recess” of the Senate within the meaning of that provision of the Constitution.  Since the NLRB was not lawfully appointed, its decision that the employer in the case, Noel Canning, had violated the law was not a proper finding and was not enforceable against the employer. Continue Reading Supreme Court Rules Recess Appointments Unconstitutional – What Does It Mean?

In a short ruling issued Thursday, April 24, the National Labor Relations Board (NLRB) granted Northwestern University’s request for review of a regional director’s decision that Northwestern football players are primarily employees and therefore can be represented by a union.  Readers will recall the extensive discussion triggered first by a petition for representation filed in late January by CAPA, the College Athletes Players Association.  NLRB Regional Director Peter Ohr later found that the players were primarily employees and scheduled a union representation vote.  The vote is set for today, April 25.

Northwestern was critical of the Regional Director’s findings and filed a petition asking the NLRB for a review (and reversal) of the decision.  The NLRB granted the review.  The NLRB determined that the ruling raised substantial issues that deserved a review by the NLRB.  The vote will still occur.  However, the results of the vote will not be made public until after the NLRB completes its review of the decision.

Stay tuned!

National Labor Relations Board (NLRB) Regional Director has set April 25 as the date for the union vote for Northwestern University’s scholarship football players.  As readers of this blog will recall, that vote will determine whether the scholarship football players elect the College Athletes Players Association (CAPA) as their bargaining representative.  It is still not clear whether the vote will actually take place on April 25, however, because Northwestern University already has announced its intention to appeal.