In today’s news and commentary, the NLRB Acting GC issues new guidance on ULPs, Trump EO encourages employers to add alternative assets to 401(k)s, and the Wisconsin Governor vetoes a bill that would have classified rideshare drivers as independent contractors. 

On Thursday, Acting General Counsel of the NLRB William B. Cowen issued a memo to regional staff, instructing them to consider, at the beginning of an Unfair Labor Practice investigation, whether charges could be deferred to the grievance and arbitration processes set up in parties’ collective bargaining agreements. Cowen cited the need for “judicious use” of NLRB resources, “decreasing staffing levels,” and “steady case intake,” as a backlog of cases builds before the NLRB, which still lacks the quorum necessary to issue decisions. Regional Offices assess the propriety of deferral under the standards set by Dubo Manufacturing Corp., 142 NLRB 431 (1963) and Collyer Insulated Wire, 192 NLRB 837 (1971). Dubo deferral applies if a grievance has already been filed under the CBA and preliminary evidence demonstrates that the ULP can be properly resolved via the CBA’s grievance procedure. In the alternative, Collyer deferral applies even if there is no grievance filed, as long as the conduct giving rise to the ULP also constitutes a grievance under the CBA, the charged party waives certain timeliness defenses, and the grievance procedure culminates in a final and binding arbitration. If a case is deferred under Dubo, it cannot be appealed, although a party may decline to use the grievance process and preserve their original ULP charge. By contrast, Collyer deferral is appealable, but the charge will be dismissed if the party declines arbitration. Although NLRB Regional staff have typically conducted status checks to follow up on the grievance procedure, Cowen’s memo ends that practice. Instead, the charging parties must file their own status reports to Regional offices twice a year. The memo follows other memos where Cowen has encouraged more case settlements and more referrals to the National Mediation Board. 

Meanwhile, the Trump Administration made a splash by issuing an Executive Order encouraging employers to invest 401(k) funds in alternative assets. The EO asks the Department of Labor to reexamine guidance concerning fiduciary duties under ERISA and directs the SEC to consider pathways for “facilitat[ing] access to investments in alternative assets,” including potential revisions of existing SEC regulations. The EO may be the first step towards employers offering higher-risk investments, like those in cryptocurrency and private equity, in their options for defined-contribution retirement plans. Because ERISA imposes stringent requirements on employers as retirement plan fiduciaries, the EO is unlikely to lead to immediate or rapid changes. However, commentators have sounded the alarm that some retirement savers could eventually lose a substantial portion of their retirement funds if they choose more volatile investment options while being uninformed about the risks.

Lastly, in Wisconsin, Governor Tony Evers vetoed a bill that would have officially declared Uber, Doordash, and other similar drivers to be independent contractors. Rideshare and delivery app companies already do classify drivers as such, preventing drivers from accessing legal protections only available to employees, like minimum wage and unemployment insurance. AB 269 would have set that status in stone, while authorizing app companies to offer drivers “portable benefits” — options which could potentially allow drivers to purchase insurance policies and other benefits regardless of their work for multiple companies. Alabama, Tennessee, and Utah recently passed similar laws that bundled worker classification and potential benefits. The Wisconsin-AFL-CIO and a group of Uber and Lyft drivers opposed the bill, arguing that AB 269 was a covert way to strip drivers of real employment protections in return for almost nothing. In his veto decision, Gov. Evers ultimately agreed that the bill lacked “any guaranteed benefit for workers.”