Top Five Labor Law Developments For October 2017

Richard Greenberg, Christopher Repole
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  1. Home health aides who successfully objected to the collection of “fair share” fees without their consent may not proceed as a class, a panel of the U.S. Court of Appeals for the Seventh Circuit, in Chicago, has ruled, affirming a lower court’s determination. Riffey v. Rauner, No. 16-3487 (7th Cir. Oct. 11, 2017). The home health aides had prevailed at the U.S. Supreme Court on their claim that the deduction of “fair share” fees violated their First Amendment rights. Harris v. Quinn, 134 S.Ct. 2618 (2014). On remand to the trial court, the aides sought class certification for their claim seeking a full refund of all fair share fees collected without their consent. The U.S. District Court for the Northern District of Illinois denied the request. The three-judge Circuit Court panel affirmed the trial court’s ruling. The panel focused on the over-breadth of the proposed class, the resulting “highly individualized” inquiries that would be required to determine whether any individual class member had suffered an injury, and the extent of any such injury. Accordingly, the home health aides, who obtained a landmark victory in the Supreme Court, must sue individually.
  2. A union violated the Labor-Management Reporting and Disclosure Act (LMRDA) by maintaining a provision in its constitution imposing a literacy requirement on candidates for office in the union’s local, the U.S. District Court for the District of Nevada has ruled. Acosta v. Laborers Local 872, No. 2:15-cv-01979 (D. Nev. 2017). The union’s constitution required that any candidate for local office “[s]hall be literate.” During a 2015 election for local officers, the union’s leadership disqualified a candidate after he had difficultly reading the U.S. Constitution aloud. Secretary of Labor Alexander Acosta sued, alleging the literacy requirement violated Section 401(e) of the LMRDA, which requires that union rules allow every member in good standing to run for union office, subject to “reasonable qualifications uniformly imposed.” The District Court granted Acosta’s summary judgment motion, holding the local had applied the test only to the candidate in question and not to other candidates. The court voided the election result and ordered a re-rerun election.
  3. The U.S. House Education and the Workforce Committee on October 4 approved the Save Local Business Act (H.R. 3441), which would limit the extent to which businesses can be considered “joint employers” under NLRB standards. Under the bill, entities such as subcontractors would be considered a joint employer with the contracting entity only where one exerts “direct, actual and immediate” control over the employee policies of the other. H.R. 3441 effectively seeks to reverse the NLRB’s decision in Browning-Ferris Industries of California, 362 NLRB No. 186 (2015), in which the Board held that entities are joint employers where one exercises even indirect control over the policies of the other. Meanwhile, the U.S. Court of Appeals for the D.C. Circuit is considering an appeal of Browning-Ferris and is expected to issue its decision shortly. The case is Browning-Ferris Int’l v. NLRB, Nos. 16-1028, 16-1063, and 16-1064. We will cover in our next issue the full U.S. House of Representatives passing H.R. 3441 on November 7. The U.S. Senate is considering the bill.
  4. In what appears to be the second unpublished decision in which he has participated since joining the NLRB, Member Marvin E. Kaplan “expresse[d] no view with respect to whether he agrees or disagrees with revisions [to the NLRB’s election procedures] made by the [quickie] Election Rule….” Garda CL Atlantic, Inc., No. 29-RC-197242 (Oct. 3, 2017). In Garda, the Special and Superior Officers Benevolent Association petitioned to represent a unit of the employer’s employees. An intervening union (United Federation of Special Police and Security Officers) requested that the representation election (scheduled for October 4) be stayed. The NLRB unanimously denied the intervening union’s request. Chairman Philip Miscimarra noted his continuing disagreement with the NLRB’s “quickie” elections rules, but Kaplan expressly declined to comment on where he stands. While Kaplan has declined to comment on the rules thus far, many employers anticipate that the five-member Board’s three Republican members (Miscimarra, Kaplan, and newest Member William Emanuel) will find a way to blunt the impact of the rules.
  5. The U.S. Senate Health, Education, Labor and Pensions (HELP) Committee voted on October 18 to send Peter Robb’s nomination as NLRB General Counsel to the full U.S. Senate. Robb is a long-time management labor law attorney, and he would be replacing General Counsel Richard F. Griffin, Jr., whose term expired on October 31. The NLRB announced that Jennifer Abruzzo, a 23-year veteran of the Board, would serve as acting General Counsel while the Senate deliberated over Robb’s nomination. Abruzzo has served as an executive assistant to former General Counsel Robert Meisburg and acting General Counsel Lafe Solomon. In our next issue, we will discuss the full U.S. Senate vote to confirm Robb to the General Counsel post on November 8.

 

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