At the end of the summer, the National Labor Relations Board (the “Board”) came down with a game-changing decision that affected fast-food chains and related companies dealing with contractors and franchisees. The decision heavily favored unions because it changed the meaning of an employer-employee relationship by including a staff contractor—a person hired to staff the parent company’s facilities—within the concept of a joint employer. Therefore, because a staff contractor is employed by the parent company, a union is legally entitled to bargain directly with the parent company, bypassing any bargaining relationship with the staff contractor at that specific facility. Previously, employees in this line of work rarely succeeded in union organizing, which, in some degree, was due primarily to their weak negotiating leverage against franchisees and staff contractors. Now, however, the Board significantly made union representation easier through an “indirect test” that establishes a greater number of bargaining relationships through an “ever-widening circle of employers.” For example, if fast-food employees at a particular restaurant choose to become unionized, this decision gives union representatives the opportunity to negotiate not just with the franchisee or contractor of that particular restaurant, but also with the corporate headquarters. For more information on this decision and how it may impact companies beyond fast-food restaurants, check out this article from The New York Times!
Category Archive: NLRB Decisions
It might be 19˚ here in New York, but spring is almost here! With the change in seasons, there are a whole host of new issues coming down the pipeline. We are counting down the days until the Title VII at 50 Conference, and have put together a selection of current events that show just how relevant Title VII is today.
First on the list is President Obama’s call to update the minimum salary threshold and revamp overtime rules to expand overtime for salaried employees. This directive is expected to be announced via executive order today, read this before the announcement!
*Update from the New York Times*
Our own Professor Gregory is in the final stages of preparing a paper on Fisher v. University of Texas, and the far-reaching implications that the Supreme Court’s decision may have on diversity. The Wall Street Journal posted an interesting report on the challenges schools face to increase or maintain diversity. Read it and then let us know your views at the Title VII conference. H/T to Brendan Bertoli for this!
Going along with the Title VII theme, activists fighting the employment discrimination faced by the LGBT community are renewing a push for federal legislation that would prohibit anti-LGBT workplace discrimination. The Employment Non-Discrimination Act did not pass, but activists are hopeful that the president will issue an executive order circumventing the Congress. Click the link for an article framing the necessity of an anti-discrimination initiative.
The Ministerial Exception is making news with a recent case about a gay school administrator fired from a Catholic school. Read the links here, here and here about the issues this case is bringing up.
The EEOC has issued new guides to religious accommodations in the workplace. The documents, titled Religious Garb and Grooming in the Workplace: Rights and Responsibilities and an additional fact sheet, gives a guide to when and how employers must accommodate employees’ religiously based requests on clothing, religious dress, head coverings, hair styles, and facial hair. These sheets provide a cheat sheet of the basic requirements of Title VII and provide case specific examples.
What news stories are on your radar? Let us know what you’re thinking in the comments, and don’t forget to mark the Title VII at 50 conference (April 4-5) on your calendar!
On November 18, the National Labor Relations Board (NLRB) announced that it would be pursuing charges against Wal-Mart. The agency’s general counsel reportedly investigated workers claims that Wal-Mart had threatened employees for taking part in walkouts surrounding last year’s Black Friday shopping season. According to the NLRB, in several states, Wal-Mart unlawfully threatened, surveilled, disciplined or terminated employees as a response to or in anticipation of legally protected worker activities. The Wal-Mart stores were in a waide range of states, including: California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington. Despite authorizing these claims, the NLRB found no merit in other violations alleged. The NLRB found no merit in claims that alleged that worker’s were told to leave private property and changing work schedules. This case will be interesting to see unfold, as Wal-Mart is the largest employer in America, with over 2.2 million employees. 1 Black Friday 2013 is right around the corner and workers are planning other protests of Wal-Marts practices; this authorization of a complaint will give some publicity to the ongoing struggle between Wal-Mart and their employees. 2 For the official release from the NLRB, click here.
In an article titled “Vacancies and Partisan Fighting Put Labor Relations Agency in Legal Limbo” written by Mark Landler and Steven Greenhouse and published in The New York Times on July 15, 2013, Professor Gregory offers context for the situation which has arisen in the National Labor Relations Board.
The NLRB has been functioning without a quorum of members (a full slate is five members) and President Obama’s NLRB recess appointments have been the subject of an acrimonious court battle set to go before the Supreme Court next term.
Experts, like Professor Gregory, say that these issues have cast doubt upon the rulings of the NLRB and without a clear sense of direction in solving labor disputes.
Here is an excerpt from the article:
“The situation we’re seeing now is really unprecedented,” said David L. Gregory, a professor of labor law at St. John’s University. “There was a period of chronic vacancies that was as much the fault of the Democrats as the Republicans. But we really haven’t seen a showdown like this in modern history.” The White House reiterated Monday that Republicans were “needlessly and systematically” obstructing the president’s nominees, arguing that he had put forward a full bipartisan set of candidates in April.
In its recent decision, Canning v. NLRB, the Court of Appeals for the D.C. Circuit vacated a National Labor Relations Board (“NLRB”) order, ruling that the Board lacked a quorum because three of its members were invalidly appointed. Although President Obama attempted to appoint three of the Board’s members under the authority of the Recess Appointments Clause of the Constitution, the D.C. Circuit concluded that the appointments were constitutionally invalid. The decision suggests that nearly two hundred years of presidential recess appointments may be invalid exercises of executive power.
The first issue the court addressed pertained to the meaning of “recess” in the Recess Appointments Clause. At the time President Obama made the three recess appointments to the NLRB, the Senate was holding pro forma sessions every three business days between December 20, 2011 and January 22, 2012. Despite an agreement stating that no business was to be conducted during those pro forma sessions, the Senate conducted business twice during that time period. The court concluded that only “the” intersession recess of the Senate provides an appropriate opportunity for recess appointments, distinguishing other “adjournments” or “generic break[s] in proceedings” as insufficient to confer appointment authority. Because the court believed the Senate had only “broken for three days within an ongoing session,” it concluded that it was “not in ‘the Recess.’” The court cited separation of powers concerns and the original meaning of the term according to the Framers in support of its interpretation.
Although the court acknowledged that its holding regarding the meaning of the term “Recess” would have been sufficient to vacate the Board’s order, it nevertheless continued to address a second constitutional issue: the meaning of the word “happen” in the Recess Appointments Clause. On this issue, the court concluded that because the vacancies in Board membership did not “happen” during “the Recess,” the president lacked authority to make recess appointments. The court rejected three other circuits’ interpretation that the word “happen” in the Recess Appointments Clause includes all vacancies that “exist,” relying heavily on an originalist reading of the Constitution.
This decision has already generated substantial criticism. Some have expressed concern that the court’s reading of the term “recess” suggests that the Senate can continue holding pro forma sessions to thwart presidential appointments indefinitely. Others are concerned that the decision threatens the status of hundreds of NLRB decisions.
Despite the apparent force of the D.C. Circuit’s ruling, there are appeals pending in other circuits that will also address this conflict. Regardless of the outcomes of those decisions, however, it appears extremely likely that the Supreme Court will ultimately decide whether the recess appointments to the Board were valid. Because recess appointments can contribute to the smooth functioning of government, especially in times of political partisanship, the Supreme Court should carefully consider this issue and not read the Recess Appointments Clause unduly narrowly so as to completely impede use of the Recess Appointment power.
 Nos. 12–1115, 12–1153, 2013 WL 276024 (D.C. Cir. Jan. 25, 2013).
 See id. at *23.
 U.S. Const. Art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”).
 Canning, 2013 WL 276024, at *7.
 See Charlie Savage & Steven Greenhouse, Court Rejects Obama Move to Fill Posts, N.Y. Times, Jan. 25, 2013, at A1 (“Presidents have used recess appointments to fill vacancies that opened before a recess since the 1820s, and have made recess appointments during Senate breaks in the midst of sessions going back to 1867.”).
 See id. at *7.
 Id. (explaining that the Senate acted twice between December 20, 2011 and January 22, 2012: once to pass a temporary extension to the payroll tax; once to fulfill its constitutional duty to meet on January 3).
 An extended discussion of the significance of the word “the” and its difference from “a” or “an” appears in the court’s opinion. Id. at *8.
 Id. at *8-*9 & *16 (differentiating between “recesses” and “the Recess” and concluding that the latter only refers to the intersession recess, not to other adjournments).
 Id. at *9.
 Id. at *11-*12.
 Id. at *16 (quoting U.S. Const. Art. II, § 2, cl. 3) (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”).
 Id. at *23.
 Id. at *17 -*19 (quoting Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004); United States v. Woodley, 751 F.2d 1008, 1012-13 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962)) (emphasizing that the other circuits’ analysis was misguided because they “did not focus their analyses on the original public meaning of the word ‘happen.’”).
 See, e.g., Jeffrey Toobin, A Judicial Atrocity, Jan. 29, 2013, available at http://www.newyorker.com/online/blogs/comment/2013/01/the-awful-recess-appointment-ruling-in-canning-v-national-labor-relations-board.html.
 Id. (“[T]he opinion essentially said that the Senate need almost never be in recess; a handful of senators could create ‘pro-forma’ sessions that would trump any President’s ability to make appointments.”).
 See, e.g., Robert Barnes & Steven Mufson, Court Says Obama Exceeded Authority in Making Appointments, Jan. 25, 2013 (describing several labor leaders’ reactions to the decision).
 See id.
 See Toobin, supra note 12.
Irrelevant! Irrelevant on All Counts! – But You Still Have to Respond: The NLRB’s Order in IronTiger Logistics, Inc.
On October 23, 2012, the National Labor Relations Board (NLRB or the Board) issued an order in IronTiger Logistics, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO. The case was decided by a three-member panel of the Board; the panel consisted of Chairman Pierce and Members Hayes and Block. The case centered on whether IronTiger had violated Section 8(a)(1) and Section 8(a)(5) of the National Labor Relations Act (NLRA or the Act). The NLRB affirmed the ruling of the Administrative Law Judge (ALJ), which held a violation did occur.
IronTiger Logistics, Inc. (IronTiger) is based out of Kansas City, Missouri, and “employs approximately 100 employees at four locations.” The main business of IronTiger is moving freight. The company has a close relationship with another company, TruckMovers.com, Inc. (TruckMovers), which assigns loads to both IronTiger drivers and TruckMovers drivers. IronTiger’s drivers are unionized; TruckMovers’ drivers are not unionized. The union and IronTiger signed a Letter of Agreement which clarified that any loads that were given to TruckMovers drivers would not be considered IronTiger loads, meaning the loads were not work that was being subcontracted by IronTiger to avoid using union drivers.
The union began to suspect that the dispatching process was not working as it was supposed to. It believed IronTiger was not placing all of the available loads on its dispatch board and that, as a result, TruckMovers drivers were getting assignments that should have been going to union drivers. The union filed a grievance on March 29, 2011, and a few weeks later requested information pertaining to the loads that had been assigned to all drivers by TruckMovers, which IronTiger provided. The union then requested additional detailed information regarding the loads on the list IronTiger had provided; in part, the union requested the name of the driver that had been assigned to each load, the destination each load was delivered to, and “relevant communication” from the entities receiving each load. After IronTiger did not respond to the request for additional information, the union filed an unfair labor practice claim with the NLRB. Eventually, IronTiger responded to the union’s request by stating that the information about the loads assigned to TruckMovers drivers had no bearing on the union’s claim, as those drivers were not members of the union. IronTiger further stated that it did not have to provide the information requested pertaining to its drivers, members of the union, because the shipments in question had already been delivered and, therefore, the information being requested was not relevant.
Section 8(a)(5) of the Act places a duty on the employer to respond to requests from the union for information that is relevant to the union complying with its responsibilities to its members. The employer must provide the response in a “timely manner.” The ALJ held that the information requested by the union in this case was “presumptively relevant” to the union’s objective. As such, IronTiger was required to respond to the union’s request in a timely manner, even if the response simply explained why IronTiger believed it did not have to provide the information to the union. The ALJ further held that the information the union had requested was, indeed, irrelevant to the union’s claim and, therefore, IronTiger was not required to provide the information.
The Board upheld the ALJ’s determination, stating that the issue in this case was whether IronTiger had to respond to the request, not whether IronTiger had to provide the requested information. The Board cited a “well-established corollary” to Section 8(a)(5) which requires an employer to respond to a request for information from a recognized union, regardless of whether the employer believes it must actually provide the information that has been requested. The information being requested must only be presumptively relevant to trigger the duty of the employer to respond. In the Board’s view, it is appropriate to place the burden on the employer to respond because the employer “is in a clearly superior position to ensure that a dispute is avoided.”
Member Hayes dissented to the order, stating his belief that the corollary to Section 8(a)(5) cited by the majority does not exist, but rather that information is either relevant or irrelevant. In the case that the information is irrelevant, the employer should not be required to respond, according to Member Hayes, because it would open the door for unions to request information for strategic reasons that have no bearing on collective bargaining.