Seventh Circuit Court of Appeals Imposes $192,000 in Penalties and Other Remedies Based on Contempt Finding

On March 10, 2023, the Seventh Circuit Court of Appeals issued an opinion finding that Neises Construction Corporation (“Neises”) of Crown Point, Indiana, it is required to bargain with the Indiana/Kentucky/Ohio Regional Council of Carpenters (“the Carpenters”) and pay $192,400 in fines, among other remedies, based on a finding of contempt of prior court orders. In 2018, the Seventh Circuit enforced a National Labor Relations Board decision ordering Neises to bargain in good faith with the Carpenters. Despite the order, Neises began what would become a years-long pattern of delay, legal maneuvering, and bad-faith negotiations with no sincere intent to reach agreement. Twice, in 2019 and 2020, Neises promised to bargain with the union to settle allegations that it was in violation of the Court’s order. Nearly as soon as the last settlement was reached in 2020, however, Neises took bargaining positions that were tantamount to retracting prior tentative agreements, including a provision that would bar the Union from taking any part in decision making about the hours and working conditions of its membership, as well as a grievance procedure that was essentially illusory. Accordingly, the Court adjudged Neises in contempt. The Court noted: “Parties must make reasonable efforts to comply with our orders, not engage in crafty feints designed to avoid court-imposed obligations. … Neises significantly violated our unambiguous command to bargain in good faith with the Union and failed to make reasonable and diligent efforts to comply with that command.” To remedy Nieses’s misconduct, the Court imposed $192,400 in contempt fines, awarded compensatory damages to the Union, awarded costs and attorney’s fees to the Board, extended the six-month decertification bar protecting the current Union as the exclusive bargaining representative, and ordered Neises to post a notice to its employees explaining the Court’s judgment and describing the steps it will take to remedy its misconduct, in addition to other remedies. “The Seventh Circuit’s decision in Neises sends a clear message to employers—when workers vote for union representation, an employer must bargain in good faith,” said General Counsel Jennifer Abruzzo. “The NLRB will not permit workers’ choices to be undermined and their voices to be silenced through bad faith bargaining by this or any other employer.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.

National Labor Relations Board Launches “Know Your Rights” Card Series

March 28, 2023 Today, National Labor Relations Board General Counsel Jennifer Abruzzo launched a “Know Your Rights” card series to educate workers on their rights under the National Labor Relations Act. The series is commencing with two new “Know Your Rights” tri-fold cards, which the Agency is making available in English and Spanish. One card provides information on protections for immigrant workers, while the other card talks about Weingarten rights. The cards are designed to be printed, folded, and used by workers in the workplace. Additional cards in the series will be rolled out this year. “This card series is one of many steps we’re taking to ensure that all workers know their workplace rights and understand that there is a federal agency, the NLRB, that they may seek help from if they feel that their rights have been violated,” said General Counsel Jennifer Abruzzo. “The cards will advance the NLRB’s efforts to remove barriers for workers in underserved communities through education, outreach, and processes so that all workers can safely access the NLRB.” Workers, labor organizations, employers, and others in the general public should feel free to call the NLRB’s Regional Offices (1-844-762-NLRB) to ask questions and receive assistance in filing an unfair labor practice charge in English and other languages. They may also make a request that an NLRB representative participate in an educational event through the NLRB’s Regional Offices or on the NLRB’s website. The NLRB also has many additional resources on workers’ rights and union/employer obligations on its website.

Daily eBriefs - March 27, 2023

An arbitration agreement requiring a worker to waive his right to invoke representative standing to recover penalties on a Private Attorneys General Act claim is invalid. A PAGA lawsuit can be split into arbitrable and non-arbitrable components, and it need not be treated as an indivisible unit for purposes of arbitration. Gregg v. Uber Technologies - filed March 24, 2023, Second District, Div. Four Cite as 2023 S.O.S. 1159 Full text click here >http://sos.metnews.com/sos.cgi?0323//B302925.

NLRB General Counsel Issues Memo with Guidance to Regions on Severance Agreements

Today, NLRB General Counsel Jennifer Abruzzo issued a memo to all Field Offices with guidance on the Board’s recent decision in McLaren Macomb, in which the Board returned to longstanding precedent holding that employers violate the National Labor Relations Act when they offer employees severance agreements that require employees to broadly waive their rights under the Act. The guidance will assist Regions in responding to inquiries from workers, employers, labor organizations, and the public about implications stemming from the case. The memo offers guidance on the decision’s scope and effect, such as the retroactive effect of the decision and the application of the decision to supervisors. The memo also provides guidance on the kinds of severance agreement provisions that could violate the Act if proffered, maintained, or enforced, including confidentiality, non-disclosure, and non-disparagement, among others. “Lawful severance agreements may continue to be proffered, maintained, and enforced if they do not have overly broad provisions that affect the rights of employees to engage with one another to improve their lot as employees” said General Counsel Abruzzo. “[However], the future rights of employees as well as the rights of the public may not be waived in a way that precludes future exercise of Section 7 rights, including engaging in protected concerted activities and accessing the Agency.” If workers believe their rights have been violated by the proffer, maintenance, or enforcement of unlawful severance agreements, or have questions, they can call the NLRB at 1-844-762-6572 and speak with an information officer. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

NLRB General Counsel Jennifer Abruzzo Issues Memo to Field Offices with Update on Submissions to Advice

Today, General Counsel Abruzzo sent a memo to all Regional Directors, Officers-in-Charge, and Resident Officers with an update to her August 2021 memo on her prosecutorial priorities. The new memo provides an updated list of mandatory submissions to the Division of Advice, as well as 46 issue areas that no longer need to be submitted because Regional Offices are diligently utilizing Advice guidance including, where appropriate, filing exceptions to place these issues before the Board. While 17 cases raising many of these issues are currently pending before the Board, Regional Offices are advised to continue to present them to ALJs and the Board at every opportunity. Following tradition, General Counsel Abruzzo released GC 21-04, Mandatory Submissions to Advice, as her first memo, which identified Board decisions that she believed were contrary to the Agency’s Congressional mandate, as they improperly compromised the statutory rights of workers that the NLRB is required to protect. Many of these decisions overruled prior precedent that had already struck an appropriate balance between the rights of workers and the obligations of unions and employers. “By including these issues on the mandatory submission list, my goal was to provide transparency to the public,” said General Counsel Abruzzo. “Additionally, placing these issues before the Board for reconsideration is one of my most important objectives as General Counsel. Without doing so, Board law that undermines workers’ statutory rights remains unchallenged, which will continue to detrimentally impact millions of employees throughout the country.” Since the issuance of the August 2021 memo, the Division of Advice has issued guidance, either in the form of Significant Advice Memoranda or inserts to be used in briefs to Administrative Law Judges and/or the Board, for 46 Board decisions identified in the initial mandatory submission memo and in later General Counsel memos. Regional Offices have processed hundreds of cases involving these issues and have been ensuring that all guidance is properly followed, including, where appropriate, filing exceptions to place these issues before the Board. The Board has addressed these issues in a few cases and seventeen cases raising many these issues are currently pending before them. Because of the developments in these issue areas, Regional Offices will now be required to submit only 15 of these original issues for guidance—in addition to the other types of cases traditionally submitted to Advice, mandatory Injunction Litigation Branch submissions, and cases involving electronic surveillance or algorithmic management that interferes with the exercise of Section 7 of the National Labor Relations Act. The memo notes that it does not contain an exhaustive list of issues and that other questions may arise, particularly with respect to the application and interpretation of new Board decisions. It advises Regional Offices to continue to seek guidance from the Division of Advice, as appropriate, to ensure an approach which properly applies the law to maximize protection and enforcement of employee rights under the Act.

Daily eBriefs - March 10, 2023

Labor and Employment Law Oregon law aligns with federal law regarding what activities are compensable; time that employees spend on the employer’s premises waiting for and undergoing mandatory security screenings before or after their work shifts is compensable only if the screenings are either an integral and indispensable part of the employees’ principal activities, or compensable as a matter of contract, custom, or practice. Buero v. Amazon.Com Services - filed March 10, 2023 Cite as 2023 S.O.S. 20-35633 Full text click here >http://sos.metnews.com/sos.cgi?0323//20-35633.

NLRB Rescinds Four Provisions of the 2019 Election Rule and Delays Implementation of Remaining Provisions After DC Circuit Court Decision

March 09, 2023 Today, the Federal Register filed for public inspection the NLRB’s notice to rescind four provisions from the Board’s Rules and Regulations contained in the Final Rule on representation case procedures published on December 18, 2019. This action complies with a recent decision of the United States Court of Appeals for the District of Columbia Circuit vacating the four provisions. On January 17, 2023, the Court of Appeals issued a judgment ruling that three challenged provisions of the 2019 Final Rule were improperly enacted without notice and comment: (1) allowing employers up to five business days to furnish the voter list following the direction of election; (2) precluding Regional Directors from issuing certifications following elections if a request for review is pending or during the time in which a request for review could be filed; and (3) limiting a party’s selection of election observers to individuals who are current members of the voting unit whenever possible. Those provisions have never been in effect because they were previously enjoyed by United States District Court for the District of Columbia. The Court of Appeals also held that a provision in the 2019 Rule providing for automatic impoundment of ballots under certain circumstances when a petition for review is pending with the Board, which is currently in effect, is contrary to the National Labor Relations Act. The Board’s rule rescinds all four of the provisions struck down by the Court of Appeals and reinstates previous regulations. The Federal Register also filed for public inspection a notice staying the effective date of two other provisions of the 2019 Rule to September 10, 2023. These provisions had been enjoined by the District Court and have never gone into effect. The provisions (1) allow parties to litigate disputes over unit scope and voter eligibility prior to the election and (2) instruct Regional Directors not to schedule elections before the 20th business day after the date of the direction of election. The Court of Appeals found that the Board could lawfully issue these provisions without notice and comment, but remanded the case to the District Court so that it could consider other grounds on which the provisions had been challenged as unlawful. The Board will continue to postpone implementation of these provisions as litigation remains pending and while the Board considers whether to revise or repeal the 2019 Rule. Members Wilcox and Prouty joined Chairman McFerran in issuing the changes to the Final Rule. Member Kaplan dissented.

U.S. Circuit Court Holds Haven Salon + Spa in Contempt, Orders Payment of Fines and NLRB Attorney Fees

March 06, 2023 On February 27, 2023, the United States Court of Appeals for the Seventh Circuit (the Court) granted the NLRB’s Petition for contempt against Haven Salon + Spa, Inc. for failing to comply with a Board Order remedying Haven’s unlawful termination of an employee who engaged in protected concerted activity, which was enforced by the Court. To remedy Haven’s failure to comply, the Court ordered Haven to fully comply with the Board’s Order, pay all reasonable costs and expenses, including attorney’s fees, and pay a fine of $1,000, in addition to escalating daily fines, if Haven continued not to comply with the Court’s order. As the Seventh Circuit explained, “Parties ignore court orders at their peril. . . . [T]he point applies with full force to orders of the National Labor Relations Board.” In May 2020, Haven unlawfully fired an employee after protesting working conditions on behalf of herself and her co-workers, specifically that Haven was not doing enough to protect employees from COVID-19. After Haven heard that the employee had filed an unfair labor practice charge with the NLRB, Haven threatened legal action against her and her family. After a hearing at which Haven failed to appear or participate, an Administrative Law Judge (ALJ) found that Haven had unlawfully terminated and threatened the employee in violation of the National Labor Relations Act. The ALJ recommended that the Board order Haven to compensate the employee for lost pay and expenses, offer reinstatement, notify the employee that it had removed references of her unlawful termination from the employee file, post notices of employee rights in its store locations, and file a sworn certification with the Board attesting to its compliance. The Board then adopted the ALJ’s order in the absence of exceptions. The Board asked the Court to summarily enforce its Order, which it did in September 2021. Because Haven wholly failed to comply with significant parts of the court-enforced Board Order, the Seventh Circuit held Haven in contempt, ordered Haven to pay the NLRB’s attorney’s fees and costs, and imposed fines that are forgivable only if Haven fully complies within one week of the Court’s Order. NLRB General Counsel Jennifer Abruzzo noted, “We agree wholeheartedly with the Seventh Circuit’s view that noncompliance with court-enforced Board orders cannot stand. This case is a demonstration of the NLRB’s commitment to pursue all available remedies for victims of unfair labor practices under the NLRA and vigorously pursue legal action to ensure violators comply with Board orders and settlements.”

National Labor Relations Board and Consumer Financial Protection Bureau Announce New Partnership to Address Employer Surveillance, Monitoring, Data Collection, and Financial Practices in the Workplace

Today, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo and Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra signed a new memorandum of understanding (MOU) creating a formal partnership between the two agencies to better protect American workers and address practices of employer surveillance, monitoring, data collection, and employer-driven debt, which can include a worker going into debt with their employer for the purchase of equipment, supplies, or required training. The agreement, signed by the CFPB and the NLRB, supports the two agencies’ efforts to more closely collaborate on related efforts, and recognizes the intersection of acts and practices that may pose risks under federal consumer financial protection law and the National Labor Relations Act. The agencies will now be able to closely collaborate by sharing information, conducting cross-training for staff at each agency, and partnering on investigative efforts within each agency’s authority. “Employers’ practices and use of artificial intelligences tools can chill workers from exercising their labor rights,” said General Counsel Jennifer Abruzzo. “As our economy, industries, and workplaces continue to change, we are excited to work with CFPB to strengthen our whole-of-government approach and ensure that employers obey the law and workers are able to fully and freely exercise their rights without interference or adverse consequences.” While the agencies have two distinct missions, the CFPB and NLRB share an interest in protecting American workers. The CFPB is responsible for ensuring that markets for consumer financial products are fair, transparent, and competitive for American workers. The NLRB is responsible for protecting employees from unfair labor practices which interfere with the rights of employees to join together to improve their wages and working conditions, to organize a union and bargain collectively, and to engage in other protected concerted activity. “Bad actors too often try to escape oversight by dodging between regulatory gaps and supervisory authorities,” said CFPB Director Rohit Chopra. “Today’s agreement will fill in cracks that may otherwise have let practices or products harmful to workers slip through.” Last year, General Counsel Abruzzo issued a memorandum to all field offices, committing to working closely with other federal agencies to fully effectuate the mission of the NLRA and take action on interagency collaborations outlined in the White House Task Force on Worker Organizing and Empowerment report. Workers who think their labor rights have been violated can call 1-844-762-6572 for assistance filing an unfair labor practice charge. Consumers can submit complaints about employer-driven debt and employer surveillance, as well as about other financial products and services, by visiting the CFPB’s website or by calling (855) 411-CFPB (2372). Employees of companies who they believe their company has violated federal consumer financial laws, including violations related to workplace financial products and services, are encouraged to send information about what they know to whistleblower@cfpb.gov.

U.S. Circuit Court Holds Haven Salon + Spa in Contempt, Orders Payment of Fines and NLRB Attorney Fees

March 06, 2023 On February 27, 2023, the United States Court of Appeals for the Seventh Circuit (the Court) granted the NLRB’s Petition for contempt against Haven Salon + Spa, Inc. for failing to comply with a Board Order remedying Haven’s unlawful termination of an employee who engaged in protected concerted activity, which was enforced by the Court. To remedy Haven’s failure to comply, the Court ordered Haven to fully comply with the Board’s Order, pay all reasonable costs and expenses, including attorney’s fees, and pay a fine of $1,000, in addition to escalating daily fines, if Haven continued not to comply with the Court’s order. As the Seventh Circuit explained, “Parties ignore court orders at their peril. . . . [T]he point applies with full force to orders of the National Labor Relations Board.” In May 2020, Haven unlawfully fired an employee after protesting working conditions on behalf of herself and her co-workers, specifically that Haven was not doing enough to protect employees from COVID-19. After Haven heard that the employee had filed an unfair labor practice charge with the NLRB, Haven threatened legal action against her and her family. After a hearing at which Haven failed to appear or participate, an Administrative Law Judge (ALJ) found that Haven had unlawfully terminated and threatened the employee in violation of the National Labor Relations Act. The ALJ recommended that the Board order Haven to compensate the employee for lost pay and expenses, offer reinstatement, notify the employee that it had removed references of her unlawful termination from the employee file, post notices of employee rights in its store locations, and file a sworn certification with the Board attesting to its compliance. The Board then adopted the ALJ’s order in the absence of exceptions. The Board asked the Court to summarily enforce its Order, which it did in September 2021. Because Haven wholly failed to comply with significant parts of the court-enforced Board Order, the Seventh Circuit held Haven in contempt, ordered Haven to pay the NLRB’s attorney’s fees and costs, and imposed fines that are forgivable only if Haven fully complies within one week of the Court’s Order. NLRB General Counsel Jennifer Abruzzo noted, “We agree wholeheartedly with the Seventh Circuit’s view that noncompliance with court-enforced Board orders cannot stand. This case is a demonstration of the NLRB’s commitment to pursue all available remedies for victims of unfair labor practices under the NLRA and vigorously pursue legal action to ensure violators comply with Board orders and settlements.”

NLRB Region-3 Buffalo Wins Administrative Law Judge Decision Requiring Starbucks to Rehire and Compensate Seven Unlawfully Fired Workers, Reopen a Facility, Bargain with the Union, Provide Union Access, Conduct Training and Post Remedial Notices at Stores

On March 1, 2023, NLRB Administrative Law Judge Michael A. Rosas issued a decision finding Starbucks had violated the National Labor Relations Act hundreds of times to affect workers’ organizing efforts through “egregious and widespread misconduct demonstrating a general disregard for the employees’ fundamental rights.” His decision requires Starbucks to—among other remedies—reinstate unlawfully fired workers and, if they are unable to return, instate qualified applicants of the union’s choice; reimburse workers for consequential harm they suffered as a result of Starbucks’s unlawful conduct; union access and equal time to respond; post a notice electronically, including on all forms of social media, and at all U.S. stores and with an explanation of workers’ rights; bargain with the union; reopen an unlawfully closed facility; conduct ongoing training; and have Starbucks Execs Howard Schultz and Denise Nelson read the Notice to Employees and an Explanation of Rights or be present during a reading by a Board agent to the employees in the Buffalo-area stores. Judge Rosas also ordered a Gissel Bargaining Order at Starbucks’ Camp Road Store in Buffalo, explaining that “[t]he unprecedented incursion of the Respondent’s highest-level corporate executives into Buffalo-area stores was relentless and likely left a lasting impact as to the importance of voting against representation.” “Judge Rosas’s decision clearly recognizes the crucial importance of ensuring that Starbucks workers, and all workers nationwide, can freely exercise their right to join together to improve their working conditions and form a union,” said NLRB General Counsel Jennifer Abruzzo. “This ruling should remind Starbucks, and other employers, that the NLRB will continue to vigorously protect workers’ rights to organize without interference from their employer.” “I’m proud of Region 3 for their tireless work on this case and the resulting decision which demonstrates the Act’s important protections,” said Region 3-Buffalo Director Linda Leslie. “The Region’s staff is dedicated to effectuating the National Labor Relations Act and ensuring workers’ rights are protected.”