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NAW Update on Labor Relations and Litigation

Wednesday, February 10, 2016   (0 Comments)
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NAW Update on Labor Relations and Litigation


By Jade West, Senior Vice President-Government Relations

National Association of Wholesaler-Distributors


As you know, there has been no let-up on the pace of regulations coming out of the Department of Labor and the National Labor Relations Board.  There has been recent activity from the regulators and in the courts that we thought would be of interest.  NAW and the Coalition for a Democratic Workplace (CDW), which we help manage, are participating in a number of regulatory proceedings, as well as in cases before the Board and the federal appeals courts.   A summary of some of the more recent actions follows, and a PowerPoint with much more detail on these and other issues can be found here: 

Specialty Health Care/Micro-bargaining units

The NLRB continues to approve “micro” collective bargaining units – units hand-picked by the union and opposed by the employer – consisting of small numbers of workers within a larger workforce.  A number of those Board decisions are being appealed to the federal circuit courts.  NAW and CDW have filed amicus briefs in a number of these cases, most recently: 

**In Constellation Brands d/b/a Woodbridge Winery the Board approved a bargaining unit of 46 “cellar workers” out of 210 production and maintenance workers.  The CDW brief is here:

Joint Employer

The Board has changed the long-standing definition of what constitutes a “joint employer” for collective bargaining purposes, abandoning the requirement that a joint employer must share direct control over terms of employment, and replacing that with a much looser and broader standard of “indirect” control.  Most of the focus in the joint employer debate has been on franchise organizations, but the new standard will reach well beyond franchisees, and could impact any employer that uses subcontractors or staffing agencies.  NAW and CDW have been involved in several cases challenging the Board’s Joint Employer decisions, and we expect much more Board activity on this front. 

**Browning-Ferris (BFI) is a recycling company which contracted with another company, Leadpoint, to provide workers at its recycling plant.  The Board held that BFI and Leadpoint were joint employers.  CDW filed an amicus brief with the NLRB in the Browning-Ferris case, and BFI has appealed the Board’s adverse decision.   We expect that only two amicus briefs will be allowed in the appeal, and NAW/CDW will be working with allied groups on a brief. 

**In Miller & Anderson the Board invited amicus briefs in a case in which a union petitioned to represent both permanent employees and temporary workers provided by a staffing agency without the consent of both the employer and the staffing agency.  CDW filed an amicus brief with the Board in the case.  To view same, go to:

**In CNN America and Team Video Services the Board held that CNN and Team Video Services were joint employers and that CNN could not replace the unionized subcontractor employees with in-house non-union workers.  CNN appealed and CDW filed an amicus brief with the circuit court.  To view same, go to:

Persuader Rule

The Department of Labor’s Office of Labor Management Standards (OLMS) has been working for several years on new rules governing employer arrangements with consultants who advise them in labor organizing campaigns but do not directly interact with workers.  Last December the Department sent the long-awaited rule to the Office of Management and Budget for review, and a final rule could be released as soon as March.   Although the rule technically deals with a new requirement that employers disclose their relationships with so-called “persuader” consultants, the real-life impact of the anticipated rule will make it very difficult for an employer without in-house labor counsel to obtain legal advice during a union organizing campaign – and may even bar a trade association from providing to its members fact sheets on what an employer may and may not do during a union organizing campaign.

CDW filed comments with OLMS opposing the rule, and we will be involved in the litigation challenging the rule that is certain to be filed when the rule is released. 

Protected Concerted Activity

The NLRB has been very aggressively inserting itself into workplaces – both unionized and non-union – asserting the right of employees under the National Labor Relations Act to engage in “concerted activity” concerning their working conditions, including union organizing activity.   In March, 2015, the Board released a 30-page “Report of the General Counsel Concerning Employer Rules” describing “the types of rules that are frequently at issue before us” in employee handbooks.  Recently the Board has – on its own initiative – reviewed the employee handbooks of employers with cases before the Board, and struck down handbook provisions that were completely unrelated to those cases.  The Board has struck down handbook provisions dealing with the use of social media; confidentiality requirements; disclosure of personally-identifiable information about the company, other employees and/or customers; use of video recording devices on company property; inappropriate behavior; anti-violence admonitions; speaking to the media; use of trademarks and logos; dress codes . . . and the list continues to grow.   Employers are well advised to review their employee handbooks in the context of the report of the NLRB General Counsel.  To view, go to:

Several of the concerted activity issues are being litigated.  NAW, CDW and others filed amicus briefs in several cases, most recently:

**In Banner Health the company is appealing a Board ruling against a company policy requiring that information obtained during an internal employee investigation be kept confidential; NAW/CDW just filed an amicus brief in the DC Circuit.  To view, go to:

Captive Audience Meetings

In January, 2016, a group of 106 law professors petitioned the NLRB to promulgate a new rule which would require employers that hold meetings to speak to their employees during work hours about union representation to allow unions equal time to speak to employees in favor of union representation.   If the Board promulgates the rule as requested, an employer which conducts “captive audience” meetings during a union organizing campaign would be required to allow non-employee union organizers to participate in similar meetings during normal business hours and on company property; if an employer refused to do so, the Board could set aside a subsequent representation election should the union lose.

It is likely that the Board will respond to this petition by issuing a proposed rule or addressing this issue via adjudication.  We will monitor this and CDW/NAW will probably be involved in subsequent Board proceedings.  

We will continue to update you going forward. 

Many thanks.

3020 Old Ranch Parkway #300
Seal Beach CA 90740
Phone: 562-799-5519 Fax: 562-684-0695

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