Board Issues Decision Ending Practice of Consent Orders

August 22, 2024 Today, the Board issued a decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio San Pedras overruling UPMC (2017) and holding that the Board will no longer accept “consent orders,” where an Administrative Law Judge resolves an unfair labor practice case based on terms offered by the Respondent but objected to by both the Charging Party and the General Counsel. The Board majority concludes that the current practice fails to serve the goals of the National Labor Relations Act because it does not facilitate a truly mutual resolution of labor disputes. The decision explains that the practice of accepting consent orders seems contrary to the language of the Board’s Rules and Regulations, creates administrative difficulties and inefficiencies, and tends to interfere with the prosecutorial authority of the General Counsel. The Board, however, reaffirmed its longstanding practice of accepting true settlement agreements between a respondent and the General Counsel and/or a charging party in lieu of finally adjudicating an unfair labor practice case on the merits, where accepting the settlement would effectuate the policies of the Act. “Because consent orders do not represent a real agreement between opposing parties to resolve a case, they do not promote labor peace in the same manner as a true settlement,” said Chairman Lauren McFerran. “Our decision in Hospital Metropolitano preserves the benefits of true settlements, while eliminating a practice that has no foundation in the Act or our regulations.” Members Prouty and Wilcox joined Chairman McFerran in issuing the decision. Member Kaplan dissented.

Samuelian v. Life Generations Healthcare

Noncompetition agreements arising from the sale of an entire business interest are void per se, but a sale of a partial business interest differs drastically from the sale of an entire business interest, and so a noncompetition provision arising from a partial sale cannot be deemed inherently anticompetitive and invalidated per se; the provision must be scrutinized under the reasonableness standard to determine whether it has procompetitive benefits given the nature of the selling owner’s continuing connection to the business. Samuelian v. Life Generations Healthcare - filed Aug. 20, 2024, Fourth District, Div. Three Cite as 2024 S.O.S. 2870 Full text click here >http://sos.metnews.com/sos.cgi?0824//G061911.

NetChoice v. Bonta; filed Aug. 16, 202

Employment A national trade association of online businesses that promotes free speech on the Internet was likely to succeed in showing that the California Age-Appropriate Design Code Act’s requirement that covered businesses opine on and mitigate the risk that children may be exposed to harmful or potentially harmful materials online facially violates the First Amendment. NetChoice v. Bonta; filed Aug. 16, 202 http://sos.metnews.com/sos.cgi?0824//23-2969 Cite as 2024 S.O.S. 23-296

Kennedy v. Las Vegas Sands - filed Aug. 1, 2024

Employment Law Pilots qualify as highly compensated employees exempt from the Fair Labor Standards Act’s overtime requirements; time pilots spend waiting for a request to fly did not constitute work mandating overtime pay because they could and did freely engage in personal activities during this time. Kennedy v. Las Vegas Sands - filed Aug. 1, 2024 Cite as 2024 S.O.S. 23-15311 Full text click here >http://sos.metnews.com/sos.cgi?0824//23-15311.

Christy Kwon Named Regional Director for Region 32-Oakland

Today, General Counsel Jennifer A. Abruzzo announced the appointment of Christy Kwon as the Regional Director of the NLRB Region 32-Oakland office. With a Regional Office in Oakland, California, Region 32 is responsible for conducting elections, investigating unfair labor practice charges, and protecting the right of workers to act collectively to improve their wages and working conditions throughout northern and central California and northern Nevada. “Christy is an exemplary public servant with a strong commitment to the National Labor Relations Act,” said General Counsel Jennifer Abruzzo. “I am certain that she will use her considerable talents and expertise in this new leadership role and will strive to fully effectuate the Act and faithfully serve the public every day.” Ms. Kwon is a graduate of University of California-Berkeley, where she earned dual bachelor’s degrees in Sociology and Ethnic Studies. Upon earning her J.D. at UCLA School of Law, Ms. Kwon began her legal career with the NLRB as a Field Attorney in Los Angeles (Region 31). She then served as a Field Attorney in San Francisco (Region 20) and in 2012, was promoted to Supervisory Field Attorney. In 2017, she was appointed as Regional Attorney of the NLRB’s Oakland office (Region 32).

Ruelas v. County of Alameda

Non-convicted incarcerated individuals performing services in county jails for a for-profit company to supply meals within the county jails and related custody facilities do not have a claim for minimum wages and overtime under California Labor Code §1194, even in the absence of a local ordinance prescribing or prohibiting the payment of wages for these individuals. Ruelas v. County of Alameda - filed July 26, 2024 Cite as 2024 S.O.S. 21-16528 Full text click here >http://sos.metnews.com/sos.cgi?0724//21-16528

NLRB Issues Fair Choice–Employee Voice Final Rule

Today, the Board issued its Fair Choice–Employee Voice Final Rule, restoring three key policies that provide workers with a fair opportunity to decide whether they want union representation in the workplace and a process that respects workers’ choices: the blocking charge policy, voluntary recognition of a union, and construction industry bargaining relationships. The Final Rule returns to the Board’s pre-2020 practice on blocking charges before an election, restoring a Regional Director’s authority to delay an election if unfair labor practice conduct is sufficiently serious to interfere with employee free choice. Today’s rule reverses the Board’s 2020 rule requiring Regional Directors to run elections in an election environment tainted by unfair labor practices. Secondly, today’s rule supports workers’ and employers’ ability to establish a bargaining relationship through voluntary recognition. It removes the 2020 rule’s requirement that when an employer chooses to voluntarily recognize a union that represents a majority of its workers, the parties provide for a mandatory 45-day period to allow the opportunity for a minority of workers to demand an election questioning that choice. The rule also restores the Board’s 56-year-old voluntary recognition bar, respecting the bargaining relationship that the parties have voluntarily chosen. Finally, the Fair Choice – Employee Voice rule grants parity between unions in the construction industry and other unions. Because of the transitory nature of work in the construction industry, construction-worker unions that are recognized under Section 8(f) of the National Labor Relations Act do not have the same protections as non-construction unions. The new rules allow construction-worker unions to more readily establish the same protections as other unions, providing a more stable foundation for collective bargaining. “Today’s rule restores the Board’s prior law, including longstanding principles that ensure a fair process for workers to choose whether they want representation, and provide a better foundation to allow collective bargaining relationships to thrive,” said Chairman Lauren McFerran. The Notice of Proposed Rulemaking was published by the Federal Register on November 3, 2022 and the comment period for initial comments was open until February 2, 2023. The Board received a variety of comments that it reviewed and considered in drafting the Final Rule. The effective date of the new rule is September 30th, and the rule will only be applied to cases filed after the effective date. Members Prouty and Wilcox joined Chairman McFerran in issuing the Final Rule. Member Kaplan dissented.