Tag Archives: National Labor Relations Board

NLRB Signals More Trouble Ahead For Employers That Misclassify Employees

For a variety of reasons, employers may prefer to treat those who provide services to them as independent contractors rather than employees. However, when employers exercise a sufficient level of control over the ostensible independent contractors (as outlined in various “factor” tests), they may be considered employees under the law. If that happens, employers can … Continue Reading

Non-Union, Specialty Lights Maker Must Return Work from Mexico, Federal Appeals Court Rules

The NLRB properly found a non-union employer unlawfully retaliated against striking employees and violated the National Labor Relations Act by transferring work from Illinois to Mexico, the federal appeals court in Chicago has ruled. Amglo Kemlite Labs., Inc. v. NLRB, 2016 U.S. App. LEXIS 15100 (7th Cir. Aug. 17, 2016). The Court enforced the Board’s … Continue Reading

SEIU Counters Own Employees’ Unionization Efforts

In a real-life “what’s good for the goose isn’t good for the gander” story, the Service Employees International Union is countering a unionization effort involving some of its own employees. According to an editorial in the September 2, 2016, The Wall Street Journal, the employees whom the SEIU has hired to protest outside businesses and … Continue Reading

NLRB Finds Joint Employers Despite Speculative Future Relationship

Taking its new joint employer standard to new heights, the NLRB found that Retro, a construction company, and Green JobWorks, a temporary staffing agency, are joint employers based on speculative future projects. Retro Environmental, Inc./Green JobWorks, LLC, 364 NLRB No. 70 (Aug. 16, 2016). A year ago, in Browning-Ferris, 362 NLRB No. 186 (Aug. 27, … Continue Reading

Overruling Brown University, NLRB Finds Private College And University Student Assistants Are Employees Under the NLRA

The National Labor Relations Board today decided that student assistants working at private colleges and universities are statutory employees covered by the National Labor Relations Act. Columbia University, 364 NLRB No. 90 (August 23, 2016). The 3-1 decision reversed Brown University, 342 NLRB 483 (2004). We will have a detailed analysis of this landmark decision … Continue Reading

NLRB: Failure to Bargain Over Non-Compete Agreement Violated NLRA, But Confidentiality Provision Lawful (Surprise!)

A company’s requirement that new employees represented by a union sign a non-compete and confidentiality agreement (NCCA) as a condition of employment violated the National Labor Relations Act because the NCCA is a mandatory subject of bargaining that could not be unilaterally implemented, the NLRB has held. Minteq International, Inc., 364 NLRB No. 63 (July 29, … Continue Reading

Sour Note – Musicians Are Employees, Not Independent Contractors, NLRB Tells Theater Company

A Regional Director of the National Labor Relations Board has ruled that a group of musicians were statutory employees under the National Labor Relations Act and, therefore, entitled to vote in an NLRB-conducted union representation election. In the Matter of Fiddlehead Theatre Company, Inc. and Boston Musicians Association et al., Case Number 01-RC-179597 (July 26, … Continue Reading

Overruling Precedent, Board Finds Violation May Be Established Without Specific Unfair Labor Practice Complaint Allegation

In a decision having far-reaching implications, a National Labor Relations Board panel  consisting of Chairman Mark Gaston Pierce and Members Kent Hirozawa and Lauren McFerran, (Member Miscimarra dissented) has overruled almost 10 years of NLRB precedent, deciding  that a violation of the National Labor Relations Act could be found based on an employer’s failure to … Continue Reading

Labor Unions Use Technology to Grow and Maintain Membership

Labor unions today are “tech” savvy, using mobile app and other technology to grow and maintain their memberships. According to a report in the Bloomberg Bureau of National Affairs Daily Labor Report (136 DLR C-1 July 18, 2016), a number of labor unions, including the International Association of Machinists, Communication Workers of America, and Service … Continue Reading

Ham-Handed Tactic? NLRB Says Union Giveaway Not Grounds for Setting Aside Election Victory

A union’s gift of free hams on the eve of an NLRB-conducted election did not influence the outcome, a union victory, the National Labor Relations Board has determined. Nuverra Environmental Solutions, Inc., 08-CA-164447 (July 8, 2016). The union had distributed holiday hams to eligible voters five or six days prior to the election. After the … Continue Reading

NLRB Overrules Precedent, Holds Bargaining Units Combining Jointly- and Solely-Employed Employees Okay Without Consent

The National Labor Relations Board has decided that bargaining units combining employees who are jointly employed by a user employer and supplier employer and solely employed by the user employer do not require the consent of either employer. In so doing, the NLRB overturned its 2004 decision in Oakwood Care Center, 343 NLRB 659. Miller … Continue Reading

Workplace Dress Codes – Auto Dealer Can’t Bar Workers from Wearing Message Pins, Court Affirms NLRB

A divided panel of the U.S. Court of Appeals for the First Circuit has upheld a National Labor Relations Board decision that a Massachusetts automobile dealer’s policy banning the wearing of “message pins” violated union insignia protections under the National Labor Relations Act. Boch Imports, Inc., d/b/a Boch Honda v. NLRB, Nos. 15-1653, 15-1721 (1st … Continue Reading

NLRB Drops 30-Year Precedent on Employers’ Right to Unilaterally Oust Unions Representing ‘Mixed-Guard’ Units

A divided National Labor Relations Board has overturned its 30-year-old rule that an employer may withdraw recognition, even without a showing of a loss of majority status, from a voluntarily-recognized union that represents both guards and non-guards (“mixed-guard union”) with respect to a unit of guards. Adopting a new rule proposed by the NLRB General … Continue Reading

NLRB Associate General Counsel Warns Regions About ‘Potential Literacy Issues’

The Associate General Counsel of the National Labor Relations Board has notified the NLRB’s Regional Directors, Officers-in-Charge and Resident Officers that they “should be cognizant of potential literacy issues when considering remedies” and consider requiring employers who have been found in violation of the Act to read aloud the Board’s “Notice To Employees” to assembled … Continue Reading

Employer Attacks NLRB’s New Joint Employer Standard on All Fronts in Court Brief

Browning-Ferris Industries of California, Inc. took its first shot at convincing the U.S. Court of Appeals for the District of Columbia Circuit to reject the National Labor Relations Board’s new joint employer standard and vacate two decisions that obligate the company to bargain with the Teamsters as a joint employer of temporary employees assigned to … Continue Reading

Supreme Court to Hear Appeal of NLRB’s Former Acting General Counsel’s Decisions Following Nomination

The U.S. Supreme Court has accepted the National Labor Relations Board’s petition to decide if a former acting general counsel of the NLRB served in violation of federal law. NLRB v. SW General, Inc., Case 15-1251 (June 20, 2016). As we wrote here earlier  (“Complaint Issued by NLRB’s Acting General Counsel was Unauthorized, Federal Appeals … Continue Reading

Another Court of Appeals Upholds NLRB’s ‘Micro-Unit’ Policy for Union Elections

The Fifth Circuit Court of Appeals, in New Orleans, is the latest circuit court to uphold the National Labor Relations Board’s restrictive “micro-unit” approach to voting units in NLRB elections adopted in Specialty Healthcare, 357 NLRB No. 83 (2011). Macy’s Inc. v. NLRB, No. 15-60022 (5th Cir. June 2, 2016). In Specialty Healthcare, the NLRB … Continue Reading

Eighth Circuit Finds Class and Collective Action Waivers Lawful Under NLRA, Contrary To Seventh Circuit

On the heels of the 7th Circuit’s May 27 Lewis v. Epic Systems decision, reported here, yesterday the Eighth Circuit Court of Appeals held that the NLRB erred in determining that Cellular Sales of Missouri, LLC violated the NLRA by maintaining and enforcing a mandatory arbitration agreement under which employees waived their rights to pursue class or … Continue Reading

NLRB Requires Employer to Bargain with Union over Unilateral Use of Temp Agency Employees and E-Verify

An Administrative Law Judge of the National Labor Relations Board recently ruled that a meat processing company had violated provisions of the National Labor Relations Act when it utilized a temporary employment agency to fill vacant bargaining unit positions, and enrolled in the E-Verify program without first adequately notifying or bargaining with the local union. … Continue Reading

Labor Board Will Decide Organizing Rights of Non-Teaching Employees at Religious Colleges, Universities

The National Labor Relations Board is set to decide if the same test used to determine whether teaching employees of a religious school are subject to the Board’s jurisdiction should be extended to non-teaching employees. Islamic Saudi Academy, Case 05-RC-080474 (May 12, 2016). The Board in Pacific Lutheran University, 361 NLRB No. 157 (2014), adopted … Continue Reading

NLRB General Counsel Proposes Severely Limiting Employers’ Right To Lawfully Withdraw Recognition from Unions

National Labor Relation Board General Counsel Richard F. Griffin has issued a Memorandum to NLRB Regional Directors, Officers-in-Charge, and Resident Officers proposing a dramatic change in Board law on whether, and under what circumstances, an employer may unilaterally withdraw recognition from a union representing its employees. Memorandum GC 16-03 (May 9, 2016).  If adopted by … Continue Reading

NLRB Member Criticizes Board’s Handbook Rule Review Standard

The legality of employer work rules continues to draw National Labor Relations Board scrutiny on a regular basis. A 2-1 Board panel majority (Members Kent Hirozawa and Lauren McFerran) has found that a hospital’s rules prohibiting employee conduct that “impedes harmonious interactions and relationships” and “negative or disparaging comments about the professional capabilities of employees … Continue Reading

New Georgia Law Says Franchisors Generally Not Employers of Franchisees or Franchisees’ Workers

The “Protecting Georgia Small Businesses Act” amends Georgia’s Labor and Industrial Relations Code to provide that neither a franchisee nor a franchisee’s employee is considered an employee of a franchisor for “any purpose.” However, the amendment does not apply to Georgia Workers’ Compensation Code. The Act goes into effect on January 1, 2017. The Georgia … Continue Reading
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