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!
Tag Archive: NLRB
On February 19, 2014, the Center for Labor and Employment Law hosted a Distinguished Speaker Series event- A Conversation with Harry I. Johnson, III, member of the National Labor Relations Board. This
event was held in the Mattone Family Atrium, where Mr. Johnson was joined by students, alumni and friends to tell about his experience and perspective on his role at the National Labor Relations Board. Mr. Johnson was introduced by alumni and former co-presidents of the LRELS, Sean Conroy ’95 and Michael Masri ’95. Students at the event felt that this was one of the best events and most engaging speaker series that they have attended in law school. Mr. Johnson spoke about recent decisions including cases on social media and employee handbook, and the tremendous workload of cases for the agency. Law student Josephine McGrath ’15 said, “the content and presentation of the speech was fascinating and gave an inside view of the challenges that the NLRB navigates.” Dinner at Alberto’s followed the event and the students in attendance were able to speak with Mr. Johnson and other alumni guests.
The next morning, Mr. Johnson addressed Professor Gregory’s labor law class, which started with the presentation of Professor Gregory’s labor law book. Mr. Johnson taught the class before returning to his busy schedule in Washington DC. Overall, this visit was a great learning opportunity and an amazing chance for students to get an inside view of the workings of the NLRB. Thank you to Mr. Johnson and Mr. Conroy for visiting us and we hope to have you back soon!
Click through the photo gallery to view photos from the event.
The Center for Labor and Employment works closely with the Labor Relations and Employment Law Society at St. John’s. The LRELS is the student-run arm of the Center and is headed by President May Mansour ‘14, Co-Vice Presidents Sarah Mannix ‘15 and Rich Berrios ‘14, Treasurer Monica Hincken ’14 and Secretary Samantha Kimmel ‘15. Next year, Cynthia Vella ’16 and Stephen Halouvas ’15 will join the board. In addition to the many opportunities offered by he LRELS and the Center for Labor and Employment, there are several exciting events taking place this semester.
The first event was a Distinguished Speaker Series, A Conversation with Harry I. Johnson III, a former partner at Arent Fox and a current NLRB Member appointed by President Obama. This event took place on February 19 and Mr. Johnson joined Professor Gregory’s labor law class on February 20 as well to give a speech about recent NLRB decisions, the decision making process and how the agency operates. Mr. Johnson graciously spoke to the attendees and provided fascinating and entertaining insights into the NRLB. (Stay tuned for pictures of the event!)
Next up, he Center for Labor and Employment will co-host a symposium entitled Title VII at 50, with NYU Law School, The Ronald H. Brown Center for Civil Rights and Economic Development and the Journal of Civil Rights and Economic Development, on April 4-5, 2014. 2014 is the 50th anniversary of the enactment of the Title VII of the Civil Rights Act of 1964 and the programs will celebrate the evolution of Title VII over the years and the current state of the law. In attendance will be some of our most distinguished alumni as well as very prominent academics and practicing attorneys in the field. Some of the presenters will include: Paulette Brown, President-Elect of the ABA; Amanda Jaret ’13, Law Fellow AFL-CIO; Samuel Estreicher, Director of the Center for Labor and Employment Law at New York University; as well as other NLRB directors, and Professors. Over Friday and Saturday there will be roundtables and panel discussions covering a variety of topics including Professor Gregory’s forthcoming paper, “Past as Prologue in the Affirmative Action Jurisprudence of the Supreme Court: Reflections on Fisher v. University of Texas.” The conference will be an exploration of the living history of Title VII while looking ahead to what the next fifty years will bring. The winners of the inaugural Edwards Wildman Palmer Prize and the 2014 Coca-Cola Refreshments Scholar will be announced at the conference.
There are many opportunities to get involved with the Center for Labor and Employment and the Labor Relations and Employment Law Society. Please follow the TWEN page or visit stjclelblog.org to stay updated on the happenings and scholarship opportunities.
Special Event Tomorrow! A Conversation with Harry I. Johnson, III, member of the National Labor Relations Board
Join the Center for Labor and Employment and the Labor Relations and Employment Law Society for a special event tomorrow, February 19, at 5:00pm for, A Conversation with Harry I. Johnson, III, member of the National Labor Relations Board. This event will be part of the Distinguished Speaker Series and will be held in the Mattone Family Atrium. Along with Mr. Johnson, we will be hosting Sean Conroy ’95, and Michael Masri ’95. The event will be a conversation with Mr. Johnson and an opportunity for students and attendees to ask questions.
This event is open to any student and all are encouraged to attend.
Add this event to your calendar.
The football team at Northwestern University is fighting to create a labor union. The players are hoping to get a cut of the very lucrative NCAA revenue as well as make arrangements for their safety on the field and after they graduate.
NCAA rules prohibit athletes from being paid to play college sports, but they may receive compensation in the form of scholarships and living expenses. The players at Northwestern hope that collective bargaining will help them get more of a cut from the profits in the form of a salary. With the recent news about the devastating, cumulative injuries that football players can suffer after years of getting hit in the head, player are also focused on getting better health benefits as well as money to pay for the healthcare later in life.
Stay tuned to this story, which is sure to lead to contention between the players, the school and the NCAA.
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.
On October 25th and 26th, I had the privilege of attending the Peggy Browning Fund’s 15th Annual National Law Students Worker’s Rights Conference in Linthicum Heights, Maryland. The event brought together law students across the country interested in the future of workers’ rights. The conference gave a greater understanding of the issues facing American workers, and was an opportunity to network with fellow students, and top practitioners in the field.
On Friday evening, conference attendees were treated to a showing of Trash Dance. The film explored an artist’s organization of sanitation workers in Austin, Texas for a performance piece. After the film, students offered opinions about the film’s metaphors for worker organization.
On Saturday morning, AFL-CIO General Counsel and former NLRB Member Craig Becker delivered the conference’s keynote address. Mr. Becker reflected on his own experiences when speaking about unions’ future challenges. He also offered insights into labor cases on the Supreme Court’s current docket and organized labor’s reception of the Affordable Care Act.
Students then participated in workshops that covered various salient issues. I attended three different workshops, all led by prominent figures in organized labor. Dennis Walsh, Regional Director of Region 4 of the NLRB, discussed the NLRA’s nuances in “Introduction to Basic Labor Law”. Fred Feinstein, former General Counsel to the NLRB, detailed how anti-union consultants grew from cottage industry to well-oiled machine in “Future of Worker Mobilization”. Baldwin Robertson, partner of Woodley & McGillivary, summarized issues facing state and municipal union members in “Public Sector Labor Law”.
In the plenary session on Saturday afternoon, panelists Leon Dayan, Jessica Robinson, and Peggy Shorey summarized new assaults on collective bargaining rights in the states, including new right-to-work initiatives and movements to end dues check-offs. In closing remarks, Dennis Walsh, Marley Weiss and Joe Lurie thanked all conference organizers for their hard work in putting together the engaging and educational programming. It was my pleasure to represent St. John’s University School of Law at the conference. The Peggy Browning Fund’s programs contribute greatly to the labor law community, and I was fortunate to be a part of this year’s conference.
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.
The National Labor Relations Board (NLRB) announced on March 12, 2013, that it had decided it will not seek en banc rehearing of the Noel Canning v. NLRB decision. (Noel Canning Div. of Noel Corp., D.C. Cir., No. 12-1115, action announced 3/12/13). In that decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the January 4, 2012, recess appointments of three members to the Board were invalid. After consultation with the Justice Department, the Board announced its intention to file a petition for certiorari with the Supreme Court to review the Noel Canning decision.
The Noel Canning court held that President Obama’s appointment of three members to the Board did not comply with the requirements of the Recess Appointments Clause. It has been widely observed that the D.C. Circuit’s decision calls into question hundreds of decisions rendered by the National Labor Relations Board over the past year. If the Supreme Court affirms the lower court’s decision, all of these decisions would appear to be invalid. NLRB Chairman Mark Gaston Pearce vowed to fight the court’s decision shortly after the D.C. Circuit released its opinion. Chairman Pearce issued a statement that the NLRB “believes that the President’s position in the matter will ultimately be upheld.” In the interim, Chairman Pearce announced that the Board will continue to fulfill its statutory mandate and issue decisions. Although the Board’s decision has met with a fair amount of criticism, Chairman Pearce appears unfazed by calls that the Board should abide by the Circuit’s decision.
The Labor Board has until April 25th to file its petition for certiorari.
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.