CDW Sues NLRB Over Ambush Rule (Again)

Yesterday, CDW, the US Chamber of Commerce, the National Association of Manufacturers, the National Retail Federation and the Society for Human Resource Management filed suit in federal district court in DC challenging the National Labor Relations Board’s Ambush Elections rule. Jonathan Fritts, Chuck Cohen and Allyson Ho of Morgan Lewis are representing CDW and our co-plaintiffs in this suit. The NLRB issued the final rule on December 12, 2014 and the rule becomes effective April 14, 2015. You can access our press statement on the CDW website here and here are links to articles on the suit in the WSJ and the Hill.

The rule will dramatically change union representation elections in the workplace by shortening the election process to as few as 14 days from the current median time of 38 days and deprive employers of due process. The shortened time frames  effectively restrict communication between employers and employees prior to a union election, leaving employees without access to important information before they vote.

Some of the key changes in the final rule are the following:

  • Requires that all pre-election hearings be set to begin within 8 days after a hearing notice is issued.
  • Mandates that employers file a “Statement of Position” by noon on the day before the hearing begins.  The Statement of Position must include a list of prospective voters with their names, job classifications, work shifts, and work locations.
  • Provides Regional Directors with discretion to limit the scope of pre-election hearings, by excluding evidence on voter eligibility and delaying the resolution of those issues until after the election.
  • Requires an employer to provide, within 2 business days of the election agreement or decision directing an election, employee personal telephone numbers and personal email addresses.

We plan on having a meeting here in DC in late-January, where we can provide a more in-depth analysis.  We will send you more details on that meeting in the next week.

NLRB Decision on Joint Employer Expected Any Day

Concerns over possible changes to the joint employer standard began to surface on May 12, 2014, when the NLRB issued an invitation to the public to file amicus briefs in Browning-Ferris Industries on whether the Board should revisit its 30-year-old joint employer standards. CDW filed a brief in the case.  We expect a decision in the Browning-Ferris case any day now.

The changes the Board is considering making to the joint employer standard threaten to disrupt decades of established law that has paved the way for franchisors, franchisees, contractors, and subcontractors to create millions of jobs and allowed hundreds of thousands to achieve the American dream of owning their own small business. The Board’s actions could severely and negatively impact entrepreneurial opportunities and job creation and threaten economy.

On December 19, the NLRB General Counsel decided to act even before the Browning-Ferris decision was released and announced he had issued 13 separate complaints against McDonald’s USA for the employment decisions of franchisees. The General Counsel first announced on July 29 it was considering filing the complaints.

CDW’s statement on the General Counsel’s announcement can be found on our website here. You can find the Board’s press release and other info here.

CDW to File Amicus Brief in Nestle-Dryer Micro-union case

Next week, CDW plans to file an amicus brief to the US Court of Appeals for the 4th Circuit in Nestle-Dreyer, a case where the Board applied Specialty Healthcare (micro–unions) in the manufacturing setting.  The Fourth Circuit is the only US Appeals Court that previously rejected an earlier attempt by the Board to impose the standard established in Specialty Healthcare (see 1995 case in Lundy Packing here:

If the case sounds familiar, that’s because CDW filed an amicus in it before – see here. The case went up to the Fourth Circuit back in 2012 but was remanded because the NLRB panel that issued the decision was invalid under Noel Canning. On remand, on November 5, 2014, the Board again found that Nestle-Dreyer violated the law for refusal to bargain with the unit, clearing the way for a second appeal to the US Court of Appeals for the Fourth Circuit.

Details on the case are as follows: On December 28, 2011, the Board found appropriate a unit comprised solely of maintenance employees. The employer argued the only appropriate unit included both production and maintenance employees. The union had attempted twice to organize a unit with both groups of employees in the past but failed. The union was successful in organizing a unit of just maintenance employees, however. The Board’s majority relied on Specialty Healthcare in upholding the Regional Director’s decision. The decisions by the Board and Regional Director as well as the briefs on the R-case are here:

Ron Meisburg of Proskauer will draft CDW’s brief.

As always, feel free to contact me with any questions or concerns.