Fifth Circuit Court of Appeals Rejects Argument that President’s Removal of Former NLRB General Counsel was Improper, Upholding Validity of NLRB Complaint

April 28, 2022 On behalf of the NLRB Office of the General Counsel, Washington, DC On Friday, April 22, 2022, a three-judge panel of the United States Court of Appeals for the Fifth Circuit issued a unanimous decision in Exela v. NLRB rejecting the argument that the President’s removal of former NLRB General Counsel Peter Robb was improper. The Court held that the President had the authority to remove and replace the NLRB’s General Counsel and thus, the NLRB’s complaint, issued by Acting General Counsel Peter Sung Ohr, was valid. In the decision authored by Judge Clement, and joined by Judges Stewart and Elrod, the Court explained that the President’s power to remove derives from Article II of the Constitution and that no provision of the National Labor Relations Act (NLRA) curbed that power with respect to the NLRB General Counsel. This is in stark contrast to Congress’s clear and unequivocal provision of removal protection for NLRB Members. Accordingly, the Court upheld the validity of the NLRB complaint at issue and enforced the Board’s order finding that Exela violated Sections 8(a)(1) and (5) of the NLRA. The Court’s decision also notes that, in December 2021, the Board rejected a challenge to the legitimacy of General Counsel Robb’s removal and General Counsel Abruzzo’s subsequent appointment in a case called Aakash, Inc., 371 NLRB No. 46 (Dec. 30, 2021). In that decision the Board noted that a recent Supreme Court decision “foreclosed any reasonable argument that the President lacked authority to remove [the] General Counsel.” The Exela case was litigated in the Fifth Circuit Court of Appeals by a team of NLRB attorneys from the Appellate and Supreme Court Litigation Branch, as well as attorneys from the Department of Justice, with assistance from the NLRB’s Contempt, Compliance, and Special Litigation Branch. General Counsel Jennifer Abruzzo said, “The team of attorneys on this case did an excellent job representing the NLRB on this important issue. The Fifth Circuit’s well-reasoned decision will undoubtedly make a difference for employee rights throughout the country.” Visit us for more information at: http://www.beverlyhillsemploymentlaw.com/

NLRB General Counsel Promotes Productive Collective Bargaining Through Federal Mediation and Conciliation Service Partnership

Today, NLRB General Counsel Jennifer Abruzzo announced a new initiative to promote productive collective bargaining through partnering with the Federal Mediation and Conciliation Service (FMCS). In a memo issued to all field offices, the NLRB’s Division of Operations Management advised Regions on new procedures that will encourage unions and employers to utilize FMCS services, including mediation, training, and card counts to show majority support. “The National Labor Relations Act is advanced when we coordinate with other agencies to have a whole-of-government approach, which builds on the strengths, expertise, and resources of each Agency to advance national policy,” said General Counsel Jennifer Abruzzo. “This approach is reflected in the recent White House Task Force on Worker Organizing and Empowerment Report, which notes the ways that the NLRB and the FMCS can work together to support collective bargaining.” The memo instructs Regions to advise parties that FMCS provides services at no cost at the time of certification, for first contract bargaining, and if charges are filed alleging bad faith bargaining. These services include: • Skills development training for collective-bargaining negotiation, committee effectiveness, and conflict resolution; • Education on contract administration; • and Mediation, if parties need additional assistance and support with contract negotiations. Additionally, the FMCS is now also offering to assist parties in conducting card counts where an employer has entered into a verbal or written agreement with a union to voluntarily recognize the union upon a showing of majority support in an agreed upon bargaining unit. The memo also advises Regions to consider seeking remedies that involve FMCS services, such as the engagement of a mediator from the FMCS to help facilitate good-faith bargaining between parties (as stated in GC 21-06) or FMCS training on collaborative bargaining. Visit us for more information: http://www.beverlyhillsemploymentlaw.com/

Hill v. Walmart - filed April 26, 2022

A good faith mistake about a worker’s employment status is a defense to the imposition of waiting-time penalties pursuant to Labor Code §203. The test for employment from Dynamex Operations West v. Superior Court applies only to cases governed by California Industrial Welfare Commission wage orders; the applicable test for determining whether a worker was entitled to penalties under §203 is the common law test derived from Borello & Sons, Inc. v. Department of Industrial Relations. Visit us for more information: http://www.beverlyhillsemploymentlaw.com/

NLRB Files in Federal Court Seeking Immediate Reinstatement for Three Starbucks Workers

On April 22, 2022, NLRB Region 28 Regional Director Cornele Overstreet petitioned in United States District Court for injunctive relief for victims of unfair labor practices in three cases involving Starbucks retaliating against members of the union organizing committee. Section 10(j) of the National Labor Relations Act authorizes the National Labor Relations Board to seek injunctions against employers and unions in federal district courts to stop unfair labor practices where, due to the passage of time, the normal Board processes are likely to be inadequate to effectively remedy the alleged violations. The petition explains that after learning its employees were engaging in protected activity, the Employer swiftly retaliated against three of the four members of the union organizing committee. Among other things, Starbucks disciplined, suspended, and discharged one employee, constructively discharged another, and placed a third on an unpaid leave of absence after revoking recently granted accommodations. Among other remedies, Regional Director Overstreet is asking the court to immediately reinstate these employees with their usual schedules and accommodations, expunge disciplines from their records, and post, distribute, and read the District Court’s Order. “Employees have the fundamental right to choose whether or not they want to be represented by the union without restraint or coercion by their employer. The faith of Starbucks employees nationwide in workplace democracy will not be restored unless these employees are immediately reinstated under the protection of a federal court order,” said Region 28 Regional Director Cornele Overstreet. “Immediate injunctive relief is necessary to ensure that the Employer does not profit nationwide from its illegal conduct, to protect the employees’ Section 7 rights, to preserve the Board’s remedial power, and to effectuate the will of Congress.” Visit us for more information at: http://www.beverlyhillsemploymentlaw.com/

Nelson v. Dual Diagnosis Treatment Center

Language in an arbitration clause which states a general desire for disputes to be resolved without litigation is not a clear and unmistakable provision that an arbitrator will determine questions of arbitrability when coupled with a statement of broad judicial power to hold any provision of the agreement invalid or unenforceable for any reason. A contract was unconscionable where it was presented as a contract of adhesion to an individual in an indisputably fragile mental state and imposed a cap on damages, severely curtailed discovery, imposed a gag rule and required a unilateral release of almost any conceivable claim the signatory may have. Visit us for more informaton at: http://www.beverlyhillsemploymentlaw.com/

Nunez v. Cycad Management

Substantial evidence supported factual findings that an arbitration agreement was adhesive where it was presented to a worker as a nonnegotiable condition of his employment; the contract was procedurally unconscionable because it was given to the worker in English, which he cannot read, without adequate explanation or a fee schedule; it is substantively unconscionable because it allows the arbitrator to shift attorney fees and costs onto the worker and drastically limits his ability to conduct discovery. Nunez v. Cycad Management - filed March 18, 2022, publication ordered April 11, 2022, Second District, Div. Two Visit us for more information at: http://www.beverlyhillsemploymentlaw.com/

NLRB General Counsel Jennifer Abruzzo Issues Memo on Captive Audience and Other Mandatory Meetings

Today, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all Field offices announcing that she will ask the Board to find mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, including captive audience meetings, a violation of the National Labor Relations Act (NLRA). General Counsel Abruzzo explains that the Board has long-recognized that the Act protects employees’ right to listen to—or refrain from listening to—employer speech concerning their rights to act collectively to improve their workplace. Forcing employees to attend captive audience meetings under threat of discipline discourages employees from exercising their right to refrain from listening to this speech and is therefore inconsistent with the NLRA. The memo explains that years ago the Board incorrectly concluded that an employer does not violate the Act by compelling its employees to attend meetings in which it makes speeches urging them to reject union representation. As a result, employers commonly use explicit or implied threats to force employees into meetings about unionization or other statutorily protected activity. “This license to coerce is an anomaly in labor law, inconsistent with the Act’s protection of employees’ free choice. It is based on a fundamental misunderstanding of employers’ speech rights,” said General Counsel Jennifer Abruzzo. “I believe that the NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language, and our Congressional mandate. Because of this, I plan to urge the Board to reconsider such precedent and find mandatory meetings of this sort unlawful.” The General Counsel states that she will urge the Board to correct that anomaly and propose they adopt sensible assurances that an employer must convey to employees in order to make clear that their attendance at these meetings is truly voluntary. Such an approach will appropriately protect employers’ free-speech rights to express views, arguments, or opinions concerning the employees’ exercise of their protected labor rights without unduly infringing on the rights of employees to refrain, or not, from listening to such expressions. Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year. Visit us for more information at: http://www.beverlyhillsemploymentlaw.com/

Scheer v. Regents of the University of California - filed March 28, 2022, Second District, Div. Three Cite as 2022 S.O.S. 1324

 The framework from Lawson v. PPG Architectural Finishes for Labor Code §1102.5 claims also applies to Government Code §8547.10 claims.

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