Labor Relations: Despite Its Boost From a Supportive Administration, Organized Labor Will Continue to Be Challenged

January 08, 2016

Amidst a continuing debate over its relevance at a time of dramatic changes in the workplace, organized labor will be pressing to take full advantage of what could be the final year of a labor-friendly National Labor Relations Board, though a case before the U.S. Supreme Court threatens to weaken labor by establishing a "right to work" for public sector employees in all fifty states.

Joint Employer Issue Still In Play  There will be considerable attention paid to the NLRB's implementation of its ruling earlier this year in Browning-Ferris, which held that joint employer status could be found even where there is indirect or "a potential" for control.  That decision is being challenged in federal court, even as the NLRB General Counsel continues to seek to apply it to McDonald's and its franchises, which currently is being tried before an NLRB administrative law judge.  Meanwhile, the Protecting Local Business Opportunity Act (H.R. 3459) will continue to receive active attention in Congress.  The bill would amend the National Labor Relations Act by limiting joint employer findings to situations where two or more entities share control over employees that is "actual, direct and immediate."  In October, the House Education and Workforce Committee approved the bill, passing along party lines.  HR Policy Association will continue to be involved in the lobbying effort to pass H.R. 3459.

Ambush Election Rule Statistics Show Faster Elections and Slight Rise in Union Wins A Bloomberg BNA study released this week shows that union victories could be on the rise as a result of the ambush election rule, contrary to earlier reports.  The study reported that the time from petition to election has dropped to 24 days from 38 days in 2014.  The study compared elections during the four months following the rule's implementation this past April with data from the same period in 2014.  Thirty-one more union elections were resolved in 2015 with each additional election resulting in a union victory.  These statistics are being closely watched as earlier reports indicated that union victories had not increased since the rule was implemented.  An earlier study by Politico, in October, reported that there was actually a slight decrease in union victories.  The new data suggests that that trend will not continue, however, and unions will begin to benefit more from the quicker elections.

Gig Economy  Last year saw the so-called "gig economy" receiving increased attention at all levels of government, questioning the applicability of existing laws to new work relationships.  In the courts, cases threatening flexible work arrangements percolated around the country and overseas, most notably in California and the EU's Court of Justice of the European Community in cases challenging Uber's insistence that drivers are independent contractors and not employees.  State and local governments have been paying attention to the gig economy as well.  Seattle recently adopted an ordinance that allows drivers for Uber and Lyft, taxi drivers, and other "for-hire" drivers to form unions, a first for any jurisdiction in the country.  Meanwhile confederations of gig companies, academics, and even unions in some cases began lobbying for a means to provide benefits to independent contractors without exposing companies to the liabilities associated with full-time employment.  Some advocated for portable benefits not tied to employment while others are pushing for a "third classification" of an "independent worker" to be written alongside existing labor and employment laws.  Although consensus regarding these proposed policies and others is lacking, the conversation has the attention both of members of Congress and DOL Secretary Tom Perez.  We can expect the topic to only grow in importance over the next year, and will be exploring the implications of the gig economy and other changes in workplace policies and relationships at our CHRO Summit meeting in March.

DOL Persuader Rule  In March, the Labor Department is expected to publish its long delayed final rule expanding the situations in which employers are required to file a report that they have entered into an arrangement with a labor relations consultant to directly or indirectly persuade employees to exercise their collective bargaining rights.  In 2011, DOL proposed to significantly narrow a key exemption to the requirement, and received a number of comments, including one from the American Bar Association, that the proposed rule would unduly disrupt the confidential attorney-client relationship.  Although the final rule is expected to address the ABA's concerns, it is likely to include an overly broad and subjective definition of what constitutes reportable activity.

Supreme Court Case Involving Public Sector "Right to Work"  Early this year, the U.S. Supreme Court will hear oral arguments in Friedrichs v. California Teachers Association, in which it will consider whether to overrule a 38-year-old precedent and hold that public sector "fair share" agreements violate the First Amendment rights of government employees.  Such provisions require as a condition of employment that employees who choose not to be union members pay agency fees for the union's expenses related to collective bargaining, contract administration and grievance adjustment.  If the Court rules in favor of California teacher Rebecca Friedrichs, it will have the effect of establishing a federal "right to work" for all public sector employees, which would significantly weaken the politically powerful public sector unions.  Those unions currently play a major role in funding the campaigns of labor-friendly candidates.  Meanwhile, the push continues for certain states, such as West Virginia, Kentucky, New Mexico and Missouri, to join the 25 existing states where "right to work" laws exist for private and public sector employees.  In addition, certain localities have sought to establish such laws within their jurisdiction, though their legality is under attack in the federal courts.

Volkswagen Challenge to UAW Election Results and the NLRB's "Micro-Unit" Rule  Nearly two years after the United Autoworkers lost an NLRB election among the hourly workforce at the Volkswagen Chattanooga facility, the saga continues as the union seeks to preserve its victory in December among a subgroup of maintenance employees.  Though the company remained neutral during the 2014 campaign, it campaigned against the union in the December election, arguing strongly against balkanizing the workforce with a micro-unit.  The company has refused to bargain with the newly elected union—a necessary step under NLRB procedures for challenging in federal court the conduct of the election by the agency.  In this case, the company will challenge the NLRB's Specialty Healthcare rule making it easier for unions to organize micro-units of the workforce.  That rule is currently being challenged in the federal courts in a number of key cases, such as one involving Macy's, Inc., in which HR Policy has weighed in with amicus curiae briefs.  The Volkswagen situation will also continue to be closely watched in terms of its impact on the ability of American unions to organize foreign-owned companies in the Southern United States.