Wyatt Employment Law Report


Leave a comment

NLRB May Be Expanding Definition of Joint Employer

By Edwin S. Hopson

On May 13, 2014, the National Labor Relations Board (Members Hirozawa and Schiffer; Member Johnson, dissenting) announced that in Browning-Ferris Industries and Leadpoint Business Services, Case No. 32-RC-109684, a union representation election case, that it had granted review of the regional director’s decision in order to determine if the Board’s current joint employer standard should be modified. The current Board consists of three Democratic and two Republican Members. One can assume that the Democratic Members wish to loosen the standard so that union bargaining units can be expanded to include persons formerly considered independent contracts or employees of another employer.

The Board has invited the filing of briefs by not only the parties but also interested amici. The issues identified to be addressed are:

  1. Under the Board’s current joint-employer standard, as articulated in TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984), is Leadpoint Business Services the sole employer of the petitioned-for employees?
  2. Should the Board adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the Board’s decision in this regard?
  3. If the Board adopts a new standard for determining joint-employer status, what should that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

The briefs may be filed on or before June 26, 2014.


Leave a comment

NLRB Finds Employer’s Refusal to Allow a Non-Employee Union Representative Access To Its Plant Unlawful

By Edwin S. Hopson

On April 23, 2013, the National Labor Relations Board issued its decision in Caterpillar, Inc., 359 NLRB No. 97 (2013), holding that a company’s refusal to allow a non-employee union representative on its property after a fatal accident to investigate the accident was a violation of Section 8(a)(5) of the National Labor Relations Act.  The rationale for its decision was: since the union represented the employee fatally injured and was seeking access to investigate the cause of the fatal accident, the denial of access was an unlawful refusal to provide the union with information it was seeking about a safety issue at the plant.  The Administrative Law Judge who heard the case stated in his decision, in part:

“Information, which concerns unit terms and conditions of employment is ‘so intrinsic to the core of the employer employee relationship’ that it is presumptively relevant. York International Corp., 290 NLRB 438 (1988). Concerning health and safety, the Board has held: ‘Health and safety matters regarding the unit employees’ workplaces are of vital interest to the employees and are, thus, generally relevant and necessary for the union to carry out its bargaining obligations . . . . Few matters can be of greater legitimate concern. Detroit Newspaper Agency, 317 NLRB 1071 (1995); see also American National Can Co., 293 NLRB 901, 904 (1989) (health and safety matters are mandatory subjects of bargaining).”

The Board, in affirming the ALJ, stated:

“The judge properly applied the balancing test articulated in Holyoke Water Power Company [273 NLRB 1369 (1985), enfd. 778 F.2d 49 (1st Cir. 1985)] to conclude that, under the circumstances presented here, implicating significant health and safety matters, the Respondent’s property rights must yield to the employees’ right to responsible representation.”

The company was ordered to allow the union’s representative access to the facility.


Leave a comment

Supreme Court Issues Its Long-Awaited Class Action Decision in Dukes v. Wal-Mart Stores, Inc.

By George J. Miller

On June 20, 2011, in addressing what Justice Antonin Scaliacalled, “one of the most expansive class actions ever,” the U.S. Supreme Court issued its much anticipated decision in Wal-Mart Stores, Inc. v. Dukes. The Court held that the lower federal courts had improperly certified the case–filed by just three current or former female Wal-Mart employees in California–as a nationwide class action of some 1.5 million women. 

The three female plaintiffs alleged that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964.  Each of the three made different allegations about how their male managers had treated them, such as being demoted or being yelled at.  However, they alleged that the discrimination to which they were subjected was common to all of Wal-Mart’s female employees, and they sought to have the case certified as a class action on behalf of, “‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” 

The plaintiffs did not allege that Wal-Mart has an express corporate policy against the advancement of women.  Rather, they claimed that their local managers’ discretion over pay and promotions was exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees.  According to the Court, the plaintiffs’ main theory of the case was that “a strong and uniform ‘corporate culture’ permits bias against women to infect, perhaps subconsciously, the discretionary decision making of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.”

The plaintiffs sought injunctive and declaratory relief, punitive damages, and back pay. 

According to the Court, “[t]he crux of this case is commonality—the rule requiring a plaintiff to show that ‘there are questions of law or fact common to the class.'”  “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.'”  The Court ultimately concluded that “[b]ecause [the plaintiffs] provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.” 

In something of an endorsement for de-centralized human resources management, Justice Scaliawrote: “The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s ‘policy’ of allowing discretion by local supervisors over employment matters.  On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of discriminatory conduct.”

This part of the Court’s opinion was rendered by a vote of 5 to 4, with Justices Kennedy, Thomas and Alito, and Chief Justice Roberts, joining Justice Scalia in the majority, and Justices Ginsburg, Sotomayor, Kagan, and Breyer in the minority.  Justice Ginsburg wrote a dissenting opinion. 

However, in another part of the opinion, the Court was unanimous in holding that the plaintiffs’ claims for back pay could not be certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure–which provides for certification when non-monetary injunctive or declaratory relief is appropriate respecting the class as a whole–because claims for back pay are necessarily individual in nature, and in this case they were not merely incidental to the request for injunctive and declaratory relief.  The Court said that it is important for, “plaintiffs with individual  monetary claims to decide for themselves whether to tie their fates to the class representatives or go it alone,” and that, “Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay.” 

For these reason, the Court held that such claims for back pay must be brought under Rule 23(b)(3), which provides greater procedural protections for parties, including, importantly, the right of class members to receive notice of the action and to opt out of the action.