The Supreme Court Vacancy and Labor: William Pryor

President Donald Trump plans to announce his nominee to fill the late Justice Scalia’s seat on the Supreme Court this Thursday.  Among the rumored candidates is Judge William H. Pryor Jr. of the 11th Circuit, who met with the president two weeks ago.  Judge Pryor was appointed by President George W. Bush to his seat in Alabama in 2005 after the Senate voted to confirm him 53–45.  From 1995–97, Judge Pryor served as a deputy attorney general of Alabama.  He was elected as Alabama’s Attorney General in 1997, at 34 years old, and served in that position until his nomination to the 11th Circuit.  SCOTUS Blog has extensively covered Judge Pryor’s record on a variety of legal topics, but did not discuss the judge’s record on labor and employment.  We do so here.

Judge Pryor has not developed a particular reputation with respect to labor and employment law, but one impression that emerges from a look at the admittedly few labor and employment opinions he has written or joined is deference to the determinations of the NLRB.

Unlike his fellow shortlist member Neil Gorsuch, Judge Pryor has not publicly expressed concern over excessive deference to administrative agencies.  His NLRB opinions reflect a preference for deferring to agency interpretations and findings.  Out of nine cases he heard in which the NLRB was a party, Judge Pryor sided with the NLRB in eight of them.  In seven of these cases, Judge Pryor found that “substantial evidence” supported the NLRB’s determinations.  Judge Pryor was part of the unanimous or per curiam opinion in six of these cases.  In Lakeland Health Care Assocs. v. NLRB, Judge Pryor dissented from the majority opinion holding that substantial evidence did not support the NLRB’s decision to not count defendant employer’s licensed practical nurses as supervisors, thereby precluding their attempts to unionize.  Criticizing the majority, Judge Pryor wrote, “[i]n reweighing the facts and setting aside the Board’s order, the majority opinion ‘improper substitute[s] its own views of the facts for those of the Board,’ […] and fails to adhere to our deferential standard of review.”  696 F.3d 1332, 1350 (11th Cir. 2012).  He recognized that though some circuits gave a less deferential standard of review to NLRB determinations of who counts as a “supervisor” under § 2(11) of the NLRA, “our Court has refused to make ‘judicial adjustments to the statutory standard of review because we believe the wiser course is a robust application of the standard that has typified review of Board decisions.’”  Id. (citations omitted). Continue reading

Guest Post: How President Trump Could Surprise with Improvement for the NLRB and a Boost for the Middle Class

Charlie J. Morris is Professor Emeritus at the Dedman School of Law, Southern Methodist University.

This is a piece whose unlikely outcome is based on wishful thinking.  It’s what I want to believe, not what I really believe.  But whether I’m right or wrong, the information that follows should prove useful for general understanding of the National Labor Relations Act (NLRA or Act) and its policy, and perhaps someday for improving the functioning of the National Labor Relations Board (NLRB or Board).

As a result of the Presidential election, there is one evidentiary fact on which there’s wide agreement, which is that an unacceptable level of economic inequality exists in America.  Inasmuch as Donald Trump made a major campaign promise to “rebuild our economy for working people,” he now faces the prospect of having to seriously address that condition.  Although this is one of the few areas in which Democrats may find common ground with his administration, there will obviously be substantial disagreements as to what steps should be taken to move toward the common objective of bettering the lot of the American middle class.  And further complicating  those limited areas of agreement  are the areas where the Trump campaign is, or will be, at odds with conventional views of the Republican establishment—especially the Republican Congress.  The extent to which the Trump administration will be willing to pursue objectives that differ from traditional Republican positions is mostly unknown.  For example, If one assumes the possibility of President Trump prevailing in intra-party disagreements concerning matters involving labor-relations—which is pure wishful thinking—a fundamental question arises as to whether he might actually oppose some of the extreme anti-union positions that have long been hallmarks of the Republican establishment and perhaps even initiate some reasonable actions that favor both organized labor and the economy as a whole.

At first blush such occurrences seem unlikely—if not impossible—but Trump’s public statements and his extensive labor-relations record have created an area of mystery that makes this unlikely possibility worth examining.  As we all know, Trump changes his positions readily and is full of surprises.  A potential subject for one such unlikely surprise has crossed my mind. But before examining that subject, we should first look at its likely setting and at Trump’s known record as an active participant in union-management relations, all of which can be contrasted and compared with his public statements.

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When They Talk About Joint Employers, Republicans Are Either Lying or Confused

Now that Republicans in Congress are about to get a President who will sign their bills into law, they are eager to overturn even the most modest pro-worker measures that President Obama’s appointees were able to implement.  One of the top items on the chopping block is the “joint employer” standard that the NLRB announced in 2015 in its Browning-Ferris Industries decision.  What’s unfortunate is that rather than debate the Board’s decision on the merits, Republicans in Congress insist upon misrepresenting the decision and its effects.

Consider a recent column by Representative Bradley Byrne, who sits on the House Education and the Workforce Committee.  He wrote, “[t]here may be no regulation that threatens to crush small businesses and working people more than a recent ruling from the National Labor Relations Board relating to the definition of a ‘joint employer.’”  Byrne asserts that the ruling will make big firms liable for the actions of small firms, and thus they are “unlikely to do business with them anymore.”  This is simply wrong.  Joint employers are not automatically liable for each other’s actions.  Instead, under long-settled Board law, a non-acting joint employer is only liable where it knew or should have known that the other employer acted for unlawful reasons.  Apart from being wrong as a matter of law, the claim is absurd as a matter of common sense.  It’s like saying no homeowner would ever hire an electrician because there are some circumstances where the homeowner could be liable for actions taken by the electrician.  In fact, the Browning-Ferris decision wasn’t about liability, but rather about the right of workers to bargain with actual decision-makers.  The workers in Browning-Ferris were employed by a staffing agency, but Browning-Ferris retained the right to dictate who could work at the facility, it set schedules, controlled the speed of the production line, and imposed a maximum wage rate for the agency’s employees.  When the workers formed a union, they wanted the right to bring Browning-Ferris to the table, so that they could bargain about these vital issues.  Byrne also makes the unsupported claim that 600,000 jobs “could be either lost or not created” because of the Browning-Ferris decision.  But, at most, the decision might lead big firms to follow a different business model – if big firms choose to hire workers directly rather than through intermediaries, the workers’ jobs won’t disappear.

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What Will a Trump NLRB Mean for Graduate Teaching and Research Assistants?

The D.C. Circuit once observed that “[i]t is a fact of life in NLRB lore that certain substantive provisions of the NLRA invariably fluctuate with the changing compositions of the Board.”  In 2000, the Clinton Board found that teaching and research assistants at private universities are “employees” covered by the NLRA; in 2004, the Bush Board found that they were not, and in 2016, once again, the Obama Board found that they were employees.  This has led to speculation that a Trump Board will deny employee status to teaching and research assistants.  In acknowledging this possibility, I don’t want to suggest that this result would be reasonable – the majority opinion in the Board’s 2016 Columbia University case offers a compelling statutory analysis in support of its conclusion.  By contrast, the dissent’s position largely relies on speculation about the effects of collective bargaining on universities, with a particular emphasis on the potential disruption from the use of economic weapons.  Oddly, the dissent fails to acknowledge that many of these weapons – strikes, lockouts, loss of academic credit, loss of prepaid tuition – would be available even if the Board denies employee status to teaching and research assistants.  In fact, Congress enacted the NLRA in the hope that encouraging collective bargaining would minimize industrial strife and unrest.  But, if a Trump Board nevertheless rules that teaching and research assistants are not “employees,” what will happen at Harvard and Columbia, where teaching and research assistants have already voted on unionization?  Assuming they vote in favor of unionization, their unions should be safe for at least an initial contract cycle.

The NLRB does not simply issue fiats setting forth policies.  Instead, it decides particular cases.  In deciding cases, the Board often sets policies that have much broader implications, but even if a majority of Board Members would like to overturn a particular precedent, they must wait until they have a case that raises the issue.  You might think that Harvard or Columbia could raise the issue with the Trump Board simply by refusing to bargain with a victorious union.  But, when an employer refuses to bargain with a newly certified union, since the earliest days of the NLRA the Board has adhered to a policy of refusing to allow the employer to raise issues that “were or could have been litigated in the underlying representation hearing.”  This is true even where the issue raised by the employer is jurisdictional.  For instance, the NLRA definition of “employee” excludes individuals employed as supervisors.  But, where employers have argued that a bargaining unit improperly includes supervisors, the Board has refused to address those claims in refusal-to-bargain cases following a union election.  This has been true even where the Board Members have suggested that they were sympathetic to the employer’s position on the merits.  In Evergreen New Hope Health & Rehabilitation Center, a 2002 case, the employer argued that a newly certified unit improperly included statutory supervisors.  Board Members Hurtgen and Bartlett both noted in a footnote that they did not necessarily endorse the decision that had been reached in the representation case, but nevertheless the issue raised by the employer was not “properly litigable” in the refusal-to-bargain case.

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Guest Post: Trump, Sunk Cost Fallacies, and the Next Labor Movement

David Rolf has led some of the largest union organizing campaigns since the 1940s.  He is President of SEIU 775, The Workers Lab, Working Washington, and the Fair Work Center; International Vice President of SEIU; and the author of “The Fight for Fifteen” (New Press, 2016).  Views expressed here are his own.

This post is part of a series on Labor in the Trump Years.

If one were able to magically scrub the embedded racism, misogyny and xenophobia from Donald Trump’s slogan “Make America Great Again,” one might conjure up an image of unionized America circa 1946-1976: high wages, high employment, stable jobs,  good benefits; expanding investments in infrastructure, education, and home ownership;  a growing economy that lifted all boats and created more middle class wealth than in any era before or since.  “Solidarity Forever,” we would sing, to the tune of the Battle Hymn of the Republic, “for the Union makes us strong.”

But although Donald Trump spent precious few words on labor law and labor policy during his campaign, it’s fair to expect that single-party Republican control of all three branches of the federal government will bring only bad news for America’s already-fading unions.

Between now and at least 2021, the best scenario that union leaders can reasonably hope for from the Federal government includes hostile appointments to the NLRB, the DOL, and the judiciary; a rolling-back of progressive Obama-era efforts to modernize both NLRB election procedure and DOL overtime rules; the use of regulation, budget-writing, procurement, and other government powers to chip away around the edges of prevailing wages, wage and hour protections, workplace safety, and nondiscrimination; total or partial repeal of Obamacare; and some short-term job creation if the President-elect is successful in passing an infrastructure package and renegotiating trade agreements on more favorable terms (and assuming he is simultaneously unsuccessful in deporting 11 million wage-earners and triggering a depression by doing so).

A worse but equally likely scenario is a continued and concerted national campaign to weaken and shrink unions themselves.  More right to work laws.  The return of Friedrichs and its ilk. Continued assaults on public employee unions in the two-thirds of state houses controlled by conservatives.  And legal challenges to the notion of exclusive representation itself, brought by adherents of previously obscure and cultish legal theories.

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Gig News: NLRB Sides With Uber Drivers in Challenge of Class Action Waivers

In a significant court filing with the Ninth Circuit Court of Appeals, the National Labor Relations Board has backed Uber drivers challenging the validity of driver arbitration clauses with class action waivers, and signaled that the legality of such clauses is an issue of “national significance.”  The Ninth Circuit is currently considering in, O’Connor v. Uberthe enforceability of contract clauses requiring Uber drivers to arbitrate all disputes with Uber and waiving the right of drivers to participate in class actions.  Similar clauses are widespread in the gig economy, and represent a significant barrier for gig economy workers seeking to challenge their classification as independent contractors and not employees.

According to Bloomberg, the NLRB “urged the court in a filing to find Uber’s contract provisions illegally block drivers from joining class-action lawsuits.”  The NLRB further elaborated that the issue before the Ninth Circuit is one of “national significance” because it implicates many cases before courts nationally.

O’Connor represents the most notable lawsuit alleging the misclassification of Uber drivers.  In September, Judge Edward M. Chen of the Northern District of California rejected a proposed settlement.  The Ninth Circuit is considering whether drivers who did not opt-out of the arbitration and class action clauses of their contracts can participate in the class action, as Judge Chen found the clauses invalid.  Notably, in September a Ninth Circuit panel held in a different case that Uber’s driver arbitration clauses and class action  are in fact enforceable.  A petition has been filed for en banc review of that decision.

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The Obama Board’s Legacy – Part 2 of 2

This post is the second in a two-part series.

This is the second of a two-part retrospective on President Obama’s NLRB.  The first part addressed how confirmation fights led to three Supreme Court cases and contributed to a change in the filibuster rules.  This part will focus on the Board’s substantive record.

The Agency Tries to Become Relevant in Non-Union Workplaces

As the percentage of workers who belong to unions has shrunk, by the time President Obama took office the NLRB had become increasingly irrelevant in the lives of most workers.  The Board addressed this by promulgating a rule that required employers to post a notice informing workers of their rights under the NLRA.  Even though virtually every federal employment law requires similar notice posting, a very right-wing D.C. Circuit panel held that the rule violated employers’ First Amendment rights.

The Board may end up having a huge impact on non-union workplaces across the country if the Supreme Court upholds its ruling in Murphy Oil that employers may not require workers to sign agreements that prohibit workers from pursuing their legal claims collectively.  According to the National Employment Lawyer Association, in 2010, 27 percent of employers required workers to sign arbitration agreements, and those arbitration agreements typically prohibit collective or class actions.  If it survives review by the Court, Murphy Oil will become by far the most significant NLRB decision in many years.  

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