In an article published earlier this year, I asked the question whether the National Labor Relations Act (NLRA) protects racist insults. In a decision rendered on August 8, 2017, a majority of an Eighth Circuit panel, over a vigorous dissent, answered “Yes” – that the NLRA does protect racist insults by a picketing worker.
On Thursday, January 26, President Trump named Republican Phillip Miscimarra as acting Chairman of the National Labor Relations Board (the Board). Miscimarra was the sole remaining Republican on the Board, along with two Democrats – all of whom had been appointed by President Obama. Miscimarra takes over the chairmanship from Mark Gaston Pearce. Miscimarra has a background as a member of several management-oriented labor and employment law and general practice firms. The Board currently has two vacancies which President Trump will be filling in the coming months, along with the position of general counsel. The term of the current general counsel expires later this year.
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.
A case currently under consideration in the Eighth Circuit Court of Appeals deserves watching. The case will determine whether the National Labor Relations Act (NLRA) protects a picketing employee’s right to hurl racist insults at replacement workers, so long as no threat is involved. The case is Cooper Tire & Rubber Company v. NLRB, Case No. 16-2721. The facts show an intriguing – and some would argue sad – sacrifice by the current Labor Board of race relations at the altar of protecting striking workers’ and their “impulsive behavior.”
The General Counsel for the National Labor Relations Board (the “Board”) recently revealed the Board’s policy initiatives for 2016 in a memorandum to local regional offices. The memo informs the NLRB regions which cases it considers to be of particular concern and requires that they be submitted to the Division of Advice at the Board’s Washington, D.C. headquarters so the General Counsel’s office may “provide a clear and consistent interpretation of the [National Labor Relations] Act” that is consistent with the General Counsel’s view. While the memo contains few surprises, it does offer employers a cautionary warning of possible changes to current labor law jurisprudence. Because these changes may negatively impact employers, employers would be wise to take note of its warnings.
Bass, Berry & Sims attorney Tim Garrett authored an article outlining several new labor rulings and developments and explained how these issues impact the healthcare industry. Specifically, Tim highlights cases related to pregnancy accommodation, religious discrimination and accommodations, and union activity. Should an employment situation arise, Tim recommends “engaging employees in an ‘interactive process’ to collaboratively come up with a solution.”
The full article, “Healthcare HR – New Developments Lead to New Challenges,” was published on September 4, 2015 by Becker’s Hospital Review 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 Bob Horton authored the article, “Affirmative Action Plans – Your Common Questions Answered,” that was published by Contract Management magazine in the January 2015 issue. In the article, Bob answers some of the most common questions that are asked when a company is tasked with preparing an affirmative action plan. The answered questions include:
- What is affirmative action? What is an AAP?
- What does affirmative action mean?
- Who has to prepare an AAP?
- What about Medicare/Medicaid reimbursement? TRICARE participation?
- Are all of my facilities covered?
- What is in the AAP?
- What happens after you prepare the AAP?
To read the full article and get answers to these questions, click here.
On December 11, 2014, the National Labor Relations Board (the “NLRB” or “Board”) again departed from a long line of past precedent and overruled its 2007 decision in Register Guard, 351 NLRB 1110 (2007). The Board in Register Guard had held that employees have no statutory right to use their employer’s email accounts for Section 7 purposes. The Board had explained that an employer’s email system is no different than other property owned by the employer, and employers have long been afforded a basic property right to regulate and restrict employee use of their property (where the employer does not discriminate in restricting such use). In Purple Communications, 361 NLRB No. 126 (Dec. 11, 2014), however, a new Board reversed course and held that employees may in fact have a statutory right to use their employer’s email accounts for Section 7 purposes. This decision has significant implications for employers who should immediately review their electronic communications policies and consider revisions to ensure compliance. Although it is likely that the decision will be appealed and possibly reversed, currently, employers may no longer prohibit employees with access to company email from engaging in communications protected by the National Labor Relations Act (“NLRA”) (absent a narrow exception). Continue Reading NLRB Finds New Section 7 Rights to Use Employer Owned Email Systems: What It Means for Employer Policies
On December 12, the National Labor Relations Board (the “Board”) finalized a new rule amending its representation case procedures. Employers should be aware of how the new rule will affect union organization in the workplace. The rule is aimed at “streamlining and modernizing” union election procedures so as to “expeditiously resolv[e] questions of representation.” The rule was published in the Federal Register on December 15 and will take effect on April 14, 2015. The new rule:
- Provides for electronic filing and transmission of election petitions and other documents;
- Generally requires the Regional Director to set a pre-election hearing eight days after a hearing notice is served and a post-election hearing 14 days after the filing of objections;
- Generally requires non-petitioning parties to identify any issues they have with the election petition in a Statement of Position one business day before the pre-election hearing opens and then requires the petitioner to respond to such issues at the beginning of the hearing;
- Generally requires employers to provide as part of its Statement of Position a list of prospective voters with their job classifications, shifts, and work locations one business day before the pre-election hearing opens;
- Limits litigation of issues at the pre-election hearing to issues raised and positions taken in the Statement of Position and defers litigation of eligibility and inclusion issues to the post-election stage;
- Provides for oral argument at the close of the pre-election hearing and limits written briefs to when deemed necessary by the regional director;
- Eliminates the need to request review of a pre-election decision before the election to preserve the right to challenge the decision;
- Eliminates automatic stays of elections caused by challenges to the regional director’s pre-election decision;
- Narrows the issues the Board must review in post-election disputes to those issues raised; and
- Requires employers to submit a voter list within two, as opposed to seven, business days following the regional director’s approval of an election agreement or decision directing an election, and requires employers to include voters’ personal email addresses and phone numbers (if available) on the voter list.
As a result of the new rule, elections could theoretically be held in as few as 10 to 12 days.
It is unlikely that the new rule will go unchallenged. The rule has been heavily criticized as sanctioning “union ambush tactics.” Several employer groups, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, have already suggested that they intend to file lawsuits. However, employers should not bank on courts overturning the new rule. Employers should instead familiarize themselves with their new obligations and be prepared for expedited elections.