National Labor Relations Board

  • September 1, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; member, ACS Board of Directors

    For a union-side labor lawyer, identifying the employer for the purposes of bargaining and unfair labor practices is akin to a search for the Holy Grail. Three years of law school and courses in labor and employment law ― from excellent professors at Emory Law ― could not prepare me for the challenge of this search which consumed virtually all of my time when I was a Washington, D.C.-based attorney for the Service Employees International Union from 1985 to 1990.

    The search began for me in the winter of 1985. SEIU had negotiated a city-wide contract covering its Pittsburgh janitors. Rather than allowing its union contractor to continue to service its buildings under the new labor agreement, Mellon Bank terminated its janitorial vendor and its union workforce. Nearly 70 workers lost their jobs and the benefits that went with them. They were replaced by low-wage, part-time workers who were not accorded nearly the same level of benefits. I was challenged to find a legal solution.  

    In the late hours of the night, poring through the case reporters at the University of Pittsburgh Law Library, I came across the Supreme Court’s decision in Boire v. Greyhound which established the joint employer doctrine. To my delight, I learned that an entity could be considered an employer even where employees were paid by another company. I also came across a Third Circuit case, NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., which ― in my mind as a young lawyer ― made things quite clear: Two or more employers can be co-employers “if they share or codetermine those matters governing the essential terms and conditions of employment.” If only the analysis were that simple.

  • August 28, 2015

    by Jim Thompson

    At The Hill, Tim Devaney reports that the National Labor Relations Board ruled Thursday that companies can be held accountable for labor violations committed by their contractors.

    In The New York Times, Noam Scheiber and Stephanie Strom note that a recent NLRB decision will make it easier for unions to negotiate on behalf of employees working at fast food chains as well as other companies that rely on contractors and franchisees.

    In The Root , Zachary Norris, winner of ACS’s 2015 David Carliner Public Interest Award, honors the memory of Emmett Till 60 years after his violent death and commends those who continue to fight for justice in “a system that failed their loved ones.”

    In The Christian Science Monitor, Jessica Mendoza writes about a group of Nebraskans fighting to restore the state’s death penalty after the state legislature voted to abolish the practice in May.

    In The Huffington Post, Constitutional Accountability Center’s Judith E. Schaeffer examines the current state of the federal judicial system and denounces the obstructionist tactics of Senate leadership. The Senate is on track to confirm the fewest federal judges in the final two years of a president’s term since the Eisenhower administration. There are 67 current vacancies, and 31 are considered judicial emergencies. 

  • August 6, 2014
    Guest Post

    by Michael Scimone, Associate, Outten & Golden LLP.

    Last Tuesday, the National Labor Relations Board’s (“NLRB”) General Counsel announced that his office would prosecute McDonald’s USA, LLC for unfair labor practices committed by its franchisees (i.e., the individual restaurants not owned by the corporation, which is most of them).  That means that the NLRB may hold McDonald’s liable if its nominally “independent” franchisees interfere with or retaliate against workers who try to form unions, strike, or demand better pay or working conditions. 

    The GC’s move is an effort to apply common sense to an all-too-common legal dodge.  McDonald’s claims that its franchisees are free to make their own decisions about labor matters.  But that’s hardly true in practice.  Fast food franchisors like McDonald’s have enormous leverage over their franchisees.  McDonald’s computers track franchisees’ sales and labor costs, monitor employee schedules, and calculate how much labor the stores need.  And McDonald’s is famous for controlling just about everything else in its restaurants – where they buy supplies, how they cook their food, and how they advertise the brand.  It even owns the restaurants themselves.  What’s left for the franchisee to control?  Is it realistic to imagine that a franchisee could bargain over wages, schedules, or health and safety without McDonald’s at the table?

    The franchisor-franchisee smokescreen allows McDonald’s to avoid responsibility for a range of labor abuses, from anti-union interference to wage theft.  McDonald’s workers have filed multiple lawsuits seeking to hold McDonald’s, along with its franchisees, responsible for ripping off workers by making them work off the clock and stealing their already-low wages.  McDonald’s, of course, denies all responsibility.

  • July 19, 2013
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond

    When faced with drastic changes to its own rules, the Senate apparently can reach a compromise.  A Democratic threat to use the so-called nuclear option to change the filibuster rules caused Republicans to agree to cease blocking a vote on President Obama’s nominees to various agencies, including the National Labor Relations Board (NLRB) and the Department of Labor.

    This compromise, reached July 16, will enable an up or down vote on the package of five nominees for the NLRB.  As a part of the agreement, the president consented not to re-nominate the two current recess appointees to the Board.  Instead, the president has nominated two experienced labor attorneys, Nancy Schiffer, who recently retired from her position as Associate General Counsel for the AFL-CIO, and Kent Hirozawa, who is on the staff of current Board Chair Mark Gaston Pearce. President Obama previously re-nominated Pearce, whose term expires in August, and nominated two attorneys with long careers representing management, Philip A. Miscimarra and Harry I. Johnson. Thus the package contains the traditional three members from the president’s party and two from the opposing party.

    Hearings are scheduled on the nominations and the agreement raises hope that the Board members will be confirmed before Board Chair Pearce’s term expires in late August, when the agency would once again be unable to act because of the absence of quorum. The four blocked nominees to other agencies have already been confirmed. The actions of Republican senators on the NLRB nominees were part of a pattern of obstructing the president’s nominees. Blocking the NLRB nominees was particularly egregious, however, because the NLRB members, unlike the EPA Administrator and Labor Secretary, serve a judicial function and cannot act without a quorum.

  • May 29, 2013

    by Jeremy Leaming

    The Senate’s obstructionists, meaning the Republican caucus, are urging the U.S. Supreme Court to review and uphold a federal appeals court decision that greatly narrowed or rewrote the president’s power to make recess appointments.

    And that’s not terribly surprising. The case involves vacant seats on the National Labor Relations Board, an agency that Senate Republicans have fought to keep business friendly or inoperative. Republicans have convinced themselves that the NLRB, which was created to protect both rights of workers and employers, is all about making life tough on corporate America. The Senate Republicans are of course deluded, but consistent in their support of the powerful. (The Supreme Court could decide this summer to take the case for review.)

    In January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB held that President Obama ran afoul the Constitution when he appointed Sharon Block and Richard Griffin to vacant seats on the five-member agency during a 20-day recess of Congress. Obama made the appointments after Republicans continued to stall on considering the nominations. Article II, Section 2 of the Constitution grants the president authority to make recess appointments. The D.C. Circuit’s opinion was crafted by three-Republican appointees and was widely panned by legal scholars, noting that presidents have for a century used recess appointments to fill executive and judicial vacancies to help keep the government functioning. Also, as Ohio State University law school professor Peter Shane has pointed out, three other federal courts of appeals have ruled the other way, upholding the presidents’ recess appointment powers. (Another federal appeals court, however, has followed the wobbly D.C. Circuit’s opinion, so there is a split among the circuits, which heightens the chance the U.S. Supreme Court will jump into the mix and take Canning for review.)

    In a brief urging the high court to take Canning, 45 Republican senators argued that the D.C. Circuit’s opinion should be upheld. Such appointments, the brief states “have become a means to sidestep Senate confirmation.” They added, “In any case, the President himself has made clear that he will resort to recess appointments, and indeed has done so, precisely to circumvent perceived Senate opposition.” See Sahil Kapur’s reporting on the GOP brief.

    But there is nothing perceived about the opposition Republicans have mounted to hamstring the NLRB and for that matter greatly slow the efforts of the president to fill vacancies on the federal bench, which has resulted in a crisis on the bench with vacancies hovering around 80.

    Today, the Constitutional Accountability Center weighed in on the side of the Obama administration, which has asked the high court to take the case and reverse the D.C. Circuit.