United States: Top Five Labor Law Developments For August 2017

  1. Employees had no right to union representation in their employer's peer review committee proceedings, the U.S. Court of Appeals for the District of Columbia Circuit has ruled. Midwest Division – MMC, LLC, dba Menorah Medical Center v. NLRB, No. 15-1312 (D.C. Cir. Aug. 18, 2017). The employer, a hospital, used a peer review committee to investigate two nurses for poor performance. The hospital denied the nurses' request for union representation during committee proceedings, leading the nurses' union to file unfair labor practice charges with the National Labor Relations Board. The Board ruled the denial violated the National Labor Relations Act, based on the U.S. Supreme Court's decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), which held that an employee has a right to request the attendance of a union representative in any interview that he or she "reasonably fears may result in his discipline." Therefore, the NLRB ruled, an employer violates the Act by denying an employee union representation under those circumstances. Reversing the Board, the D.C. Circuit found the hospital did not violate Weingarten, as the peer review meetings were not truly mandatory. The nurses received letters advising them they could appear before the committee "if you choose," and invited them to "submit a written response ... in lieu of an appearance."
  2. The NLRB must reconsider whether CNN and a technical service contractor were joint-employers, the U.S. Court of Appeals for the District of Columbia Circuit has ruled. NLRB v. CNN Am., Inc., No. 15-1112 (D.C. Cir. Aug. 4, 2017). In 2003, CNN terminated its relationship with Team Video Services, a digital services contractor. The union representing TVS employees demanded that CNN bargain over the decision to terminate, alleging CNN was required to do so as a joint-employer with TVS. When CNN refused, the Union filed unfair labor practice charges alleging the refusal violated the NLRA. The Board found in 2014 that CNN and TVS were joint-employers and that CNN had violated the Act. Reversing the Board, the D.C. Circuit held the Board erred by failing to apply its then-current test for finding a joint-employer relationship. Rather than evaluating whether the entities exerted "direct and immediate" control over employees, the Board held only that CNN and TVS "share[d] and codetermine[d]" employees' terms and conditions of work. The D.C. Circuit found that the Board failed to provide adequate support for its decision not to apply its existing standard. It ordered the Board on remand to apply its existing standard or supply adequate reasons for applying a new one. (The NLRB's Browning-Ferris decision, which changed the standard for determining joint employer status, had not been issued at the time the Board decided CNN.)
  3. In a series of rulings, the U.S. District Court for the Western District of Washington lifted a stay against a Seattle ordinance allowing drivers for ride-hail services to join unions, holding the ordinance was not preempted by the NLRA. Chamber of Commerce of the U.S., et al. v. City of Seattle, et al., No. 2:17-CV-00370 (Aug. 2, 2017); Clark, et al. v. City of Seattle, et al., No. 2:17-CV-00382 (W.D. Wash. Aug. 24, 2017). The ordinance, passed in 2015, provided organizing rights to ride-hail drivers classified as independent contractors. The U.S. Chamber of Commerce obtained an injunction blocking the law's implementation in April 2017, after arguing the ordinance was preempted by a number of federal laws, including the NLRA, which excludes independent contractors from its coverage. The court ultimately dismissed the Chamber's challenge on August 2, finding that, while independent contractors are excluded from coverage by the NLRA, there is nothing in the Act or its legislative history that prohibits them from organizing under local ordinances, like Seattle's. The court left the stay in place, however, pending resolution of a related challenge by the National Right to Work Legal Defense Foundation (the Clark action). Following its ruling in Chamber of Commerce, the court in Clark ultimately dismissed the Legal Defense Foundation's action as moot, thereby lifting the stay. Since then, the Ninth Circuit Court of Appeals has temporarily blocked enforcement of the ordinance.
  4. NLRB Chairman (and Republican) Philip Miscimarra announced on August 8 that he was declining to be considered for a second term on the Board, citing personal reasons. Miscimarra's term is set to expire on December 16, 2017, and President Donald Trump likely will announce a likeminded pro-business nominee to fill the opening created by Miscimarra's departure. While sitting on the Obama-era Board, Miscimarra was known for his outspoken dissents, in which he expressed support for the reversal of many of the pro-labor Board decisions from that period. Meanwhile, Marvin Kaplan has been sworn in to fill an existing open Board seat, and the Senate is expected to confirm another Trump nominee, William Emanuel, to fill the remaining open seat shortly.
  5. Bloomberg BNA reported on August 21 that Vermont management attorney Peter Robb is set to be named as the next Board General Counsel, pending security clearances and background checks. Robb would replace Richard Griffin, who has held the GC post since November 2013. In addition to serving as the Board's top prosecutor, the GC supervises the operation of NLRB field offices, placing considerable influence in the GC's hands to shape Board policy both as an advocate and as an administrator.

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