The Center News: December 2017

NAM Impact
Legal Perspectives
By Linda Kelly, SVP, General Counsel and Corporate Secretary

With National Labor Relations Board Chairman Philip Miscimarra departing his post this past Saturday, late last week, the Board took astonishingly broad and swift action to reverse some of the most troubling Board policies of the past several years.  These Board rulings, all passed by a 3-2 majority reversed troubling policies that the NAM has fought in court through the Manufacturers’ Center for Legal Action, as well as in Congress and with the Board itself.  The policies concerned the following issues:

Microbargaining Units: The NLRB's decision in the Specialty Healthcare case in 2011 overturned 70 years of labor law regarding the standard for an appropriate size of a collective-bargaining unit. That decision has now been overruled. In PCC Structurals, Inc., the Board reinstated the traditional community-of-interest standard, throwing out a standard that allowed as few as two people to form a “micro-union” in one facility or location.

Joint Employer Standard: The NLRB provided a substantial victory for manufacturers on December 14 by overturning the Browning Ferris Industries case and returning the joint employer standard back to its original definition. It stated that to be classified a "joint employer," jointly liable for labor violations, a business must have a direct and immediate connection to the employees in question. Browning-Ferris had said that a business could be classified a joint employer even if its relationship to the employees in question were indirect.

Prohibition of Cameras on Shopfloors: The Board ruled in The Boeing Company case that the company’s no-camera rule at the workplace did not interfere with employee organizing, collective bargaining or other labor rights. The ruling established a new test for determining whether a facially neutral policy, rule or handbook provision potentially interferes with the exercise of employee rights under the National Labor Relations Act (NLRA). It rejected a previous ruling that would have determined the legality of the workplace rule by considering whether employees would “reasonably construe the language to prohibit” protected activity.

Changes to Health Benefits: The NLRB released its decision in Raytheon Network Centric Systems holding that a company may modify employee healthcare costs and benefits annually without that being considered a “change” that would trigger an obligation to bargain with the union representing affected employees. The Board overruled its prior decision in the DuPont case, and found that a company has the right to take the same actions it has taken in the past, even though a collective bargaining agreement has expired, without negotiating with the union.

Visit our Shopfloor Legal Blog for more information about these changes.

The team at the MCLA would like to wish our members, readers and supporters a very happy holiday season!

MCLA in the Courts
Labor Law

NAM Supports Verizon’s Email Appeal: On November 16, the NAM filed an amicus brief in Cellco Partnership v. NLRB (9th Circuit) involving company email systems. The case arises from a recent National Labor Relations Board (NLRB) decision declaring portions of Verizon’s workplace Code of Conduct illegal, specifically provisions prohibiting employee use of company email and other systems for personal use. The NLRB said the policies violate employee rights to discuss wages, hours and terms of employment. The NAM joined with the HR Policy Association, National Federation of Independent Business, the Chamber of Commerce and the Coalition for a Democratic Workplace in an amicus brief arguing that the ruling ignores employers’ rights to establish safe and productive workplaces and secure email systems, creates legal and practical problems for employers of all sizes and infringes First Amendment speech rights.

More Information: Cellco Partnership v. NLRB (9th Circuit)
Product Liability

Asbestos Take-Home Exposure Case:The Delaware Supreme Court is considering a case claiming that the manufacturer of asbestos should be responsible for warning about the dangers of take-home exposure to the wife of a man who worked with the substance. We filed an amicus brief on December 15, urging the court to affirm the lower court’s ruling that manufacturers are too far removed to impose a duty to warn such remote parties, particularly since the employers using the substance owe no such duty. Permitting such a claim would allow a flood of lawsuits, and manufacturers would be unable to carry out the proposed duty to warn.

More Information: Ramsey v. Georgia Southern Univ. Advanced Dev. Center (Del.)

Statute of Repose: The MCLA and Oregon Business & Industry filed an amicus brief supporting Ford Motor Company in a lawsuit brought by a plaintiff alleging that a used car was defective because it had an electrical issue more than 11 years after the original sale date. Oregon’s statute of repose declares that a product is non-defective as a matter of law if it remained in use for 10 years without showing a defect. However, the lower court determined that Oregon’s statute of repose should not apply because the product at issue was produced in a state without a statute of repose. Our brief argues that the Oregon Supreme Court should reverse a lower court’s statute of repose interpretation because it is contrary to legislative intent and has far-reaching negative implications for any manufacturers doing business in Oregon.

More Information: Miller v. Ford Motor Co. (Oregon Supreme Court)
Public Nuisance Claims

California Appeals Court Upholds Remediation Order for Lead Paint Makers: An intermediate appellate court in California ruled on November 14 that Conagra, Sherwin-Williams and NL Industries must pay for remediation efforts involving lead paint on houses built before 1951 in 10 jurisdictions in California. The NAM had filed an amicus brief in 2015 opposing this outcome, arguing that the theory of liability for public nuisance should not be used in this way. The case returns to the trial court for further proceedings, largely leaving intact a $1.1 billion remediation program. The result is a substantial threat to manufacturers in other industries because of the subjective and largely unbounded claims that can be characterized as public nuisance.

More Information: California v. ConAgra Grocery Products Co. (Cal. Ct. App.)
Questions or Comments?

Contact Senior Vice President & General Counsel Linda Kelly at [email protected].

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