Tag Archives: National Labor Relations Board

Union Seeks Labor Board Review of Regional Director’s Adverse Joint Employer Decision

In Green JobWorks LLC/ACECO, LLC, No. 05-RC-154596 (Oct. 21, 2015), discussed here, a case believed to be the first post-Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), to apply the new joint employer “test” articulated there, a National Labor Relations Board Regional Director found that a subcontractor and temporary staffing agency … Continue Reading

Subcontractor, Temporary Staffing Agency not Joint Employers, NLRB Regional Director Decides

An NLRB case involving the construction industry provides insight into how the agency’s new joint employer standard may be applied. The Board’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), provided that “the initial inquiry [under the Board’s new joint employer standard] is whether there is a common-law employment … Continue Reading

Company’s Property Rights Can be Trumped by Safety Concerns, Federal Court Rules

Enforcing a National Labor Relations Board order, the federal appeals court in Chicago has held an employer unlawfully denied a union safety specialist access to its facility to examine the site of a fatal accident (the cause of which had not been determined) involving a bargaining unit employee. Caterpillar Inc. v. NLRB, No. 14-3528 (7th … Continue Reading

Act Two: Employer Failed to Provide Union with Available Voter Contact Information, NLRB Regional Director Finds

In Employer Ambushed by Labor Board’s New Election Rule, we reported that a National Labor Relations Board Hearing Officer decided that Danbury Hospital had not complied with its obligation under the NLRB’s new “quickie election” rule to provide the union which had petitioned to represent approximately 850 of the Hospital’s non-professional employees with “available” personal … Continue Reading

Drug and Alcohol Testing May Contribute to Joint Employer Finding By NLRB

We have written previously about the National Labor Relation Board’s 3-2 decision in Browning-Ferris of California, Inc., 362 NLRB No. 186 (August 27, 2015), increasing the likelihood the Board may find two employers to be “joint employers,” and thereby share many collective bargaining responsibilities as well as liability for each other’s violations of the National … Continue Reading

NLRB’s Camelot: A Less Congenial Spot for Happy Independent Contracting

Trying to keep track of the “tests” that various government agencies use to determine whether an individual is (or is not) an independent contractor? Don’t ignore the National Labor Relations Board’s latest. It was applied recently in Sisters’ Camelot, 363 NLRB No. 13 (Sept. 25, 2015). Whether individuals performing services for an entity are employees, … Continue Reading

Teamsters Take Aim at Browning-Ferris Successor While Congress Entertains Legislative Roll Back Efforts

In a previous post, we reported on Browning-Ferris Industries of California Inc., 362 NLRB No. 186 (2015), a landmark National Labor Relations Board decision that established a new “test” for the NLRB to apply when determining joint employer status under the National Labor Relations Act. Browning-Ferris (BFI) operated a waste recycling facility and subcontracted employees … Continue Reading

NLRB’s New Joint Employer Standard Faces First Legislative Challenge

Two days after returning from a scheduled congressional recess, senior Republican lawmakers introduced the first legislative challenge to the NLRB’s new joint employer standard, which was handed down last month in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). The Board’s decision in Browning-Ferris makes a sweeping departure from 30 years … Continue Reading

Rats, Pigs and Cats, Oh My: Union’s Display of Large Inflatable Animals and Bannering at Las Vegas Resort was Lawful, Board Judge Holds

Las Vegas, Nevada-based Laborers Local 872 did not violate the National Labor Relations Act by displaying four-foot high banners and inflatable animals 18 to 20 feet high around the perimeter of a casino and resort complex (Westgate), and partially blocking cars and patrons, because Westgate contracted with a non-union contractor (Nigro) to perform renovation work … Continue Reading

NLRB Issues New Standard for Determining Joint Employer Status

As expected, the National Labor Relations Board has adopted a new standard for determining whether two employers are joint employers for purposes of collective bargaining. Browning-Ferris Industries of California, 362 NLRB No. 186 (August 27, 2015). In the 3-2 decision (Members Miscimarra and Johnson dissenting), the NLRB held: We will no longer require that a … Continue Reading

Complaint Issued by NLRB’s Acting General Counsel was Unauthorized, Federal Appeals Court Rules

Vacating a Board order adopting an Administrative Law Judge’s decision holding that an employer violated Sections 8(a)(1) and (5) of the National Labor Relations Act by ceasing to pay longevity pay under a collective bargaining agreement between the employer and the union representing its employees, the U.S. Court of Appeals for the D.C. Circuit has … Continue Reading

NLRA Protection Accorded Class or “Collective” Action Brought By Single-Employee

The National Labor Relations Board has decided that “a single employee who files a lawsuit ostensibly on behalf of himself and other employees is engaged in protected concerted activity.” (Emphasis provided.) Beyoglu, 362 NLRB No. 152 (July 29, 2015). Marjan (Mario) Arsovski was discharged after he filed a Fair Labor Standards Act collective action lawsuit. … Continue Reading

NLRB Declines to Exercise Jurisdiction In Northwestern Case

The National Labor Relations Board has declined to assert jurisdiction in the case involving Northwestern University football players who receive grant-in-aid scholarships. As a result, the Board did not determine if the players were employees under the National Labor Relations Act.  Instead, the Board exercised its discretion not to assert jurisdiction and dismissed the representation petition … Continue Reading

NLRB Judge Decides Employer Not Required to Agree To Union Security or Dues Checkoff Provisions in Initial Collective Bargaining Agreement

An administrative law judge of the National Labor Relations Board has rejected the contention of the NLRB’s General Counsel that an employer bargained in bad faith by refusing to agree to the union’s “union security” (requiring all employees to join the union) and “dues checkoff” (requiring employees to have their union dues deducted from their … Continue Reading

NLRB ALJ Follows Invalidated NLRB Decision on Bargaining about Discipline

Although the National Labor Relations Board’s 2012 decision in Alan Ritchey, Inc., 359 NLRB No. 40 was invalidated by the United Supreme Court in Noel Canning v. NLRB (2014) because of improper Board recess appointments, an NLRB Administrative Law Judge has decided to follow the “principles” contained in Alan Ritchey anyway, concluding that during the … Continue Reading

Chamber of Commerce’s Challenge to NLRB “Quickie Election Rule” Fails in District Court

The National Labor Relations Board has won a second legal victory in connection with its “quickie” election rule. U.S. District Court Judge Amy Berman Jackson has rejected arguments raised by the U.S. Chamber of Commerce and other business groups seeking to invalidate the rule for exceeding the Board’s authority under the National Labor Relations Act … Continue Reading

What’s Next for Contractual Dues-Checkoff Provisions?

As we previously observed here, no cases that were invalidated by the United States Supreme Court in Noel Canning v. NLRB remain for the National Labor Relations Board to decide. However, not all of the decisions that were nullified have been reaffirmed. One of the more significant decisions that has not been reaffirmed is WKYC-TV, … Continue Reading

New Texas Law Says Franchisors, with Exception, Not Employers of Franchisees’ Workers

The Texas Labor Code has been amended to provide that a franchisor is not considered an employer for claims related to employment discrimination, wage payment, the Texas Minimum Wage Act, and the Texas Workers’ Compensation Act, among other laws. According to S.B. 652, this is so unless the franchisor has been found by a state … Continue Reading

NLRB Stands by Decisions Challenging Employers Seeking to Limit Discussion of Investigations and Disclosure of Witness Statements

In its last-minute push to clear its docket of all cases in which its decisions were invalidated by the United States Supreme Court’s ruling in Noel Canning v. NLRB, the National Labor Relations Board has issued two new significant decisions, substantially reaffirming its earlier determinations. In Banner Estrella Medical Center, 362 NLRB No. 137 (June … Continue Reading

Board Permits Questioning of Employee in Workplace Misconduct Investigation, Despite Protected Activity

An employee’s dishonesty during his employer’s lawful investigation into workplace complaints could serve as a basis for discipline of the employee, even if the conduct in question took place during the employee’s exercise of Section 7 rights under the National Labor Relations Act, the National Labor Relations Board has decided. Fresenius USA Manufacturing, Inc., 362 … Continue Reading

NLRB Has Cleared Up Cases after Supreme Court’s Invalidation of 2012 Recess Appointments

In Noel Canning v. NLRB, the United States Supreme Court concluded that President Barack Obama’s three recess appointments to the National Labor Relations Board in January 2012 (Sharon Block, Richard Griffin, and Terence Flynn) were invalid.  As a result, hundreds of Board decisions were invalidated. Now, Politico reports that an NLRB spokesperson said that there … Continue Reading

NLRB’s Notice of Bargaining Obligation Purports to Explain All

Amid the noise of the National Labor Relations Board’s new representation case rules, which became effective on April 14, 2015, the Board, without any fanfare, has begun issuing a new document, entitled “Notice of Bargaining Obligation,” as a companion piece accompanying the “Certification of Representative” the Board issues after a union prevails in a representation … Continue Reading

NLRB Expands Remedies for Employer’s Violation of Employee’s Weingarten Rights

The NLRB has issued a decision allowing new remedies — reinstatement and back pay (“make-whole relief”) — for certain violations of an employee’s “Weingarten” rights. E.I. Dupont de Nemours & United Steel Workers Local 6992, 362 NLRB No. 98 (May 29, 2015). In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the U.S. Supreme … Continue Reading

Pro-Union Worker Fired For Refusing Drug Test, Not For Anti-Union Reasons, NLRB ALJ Finds

In a strongly worded opinion, a National Labor Relations Board Administrative Law Judge sustained an employee’s discharge for refusing to drug test against an allegation of unlawful discrimination because the employee had engaged in union activity. Ozburn-Hessey Logistics, LLC, JD (ATL) 08-15 (NLRB ALJ April 28, 2015). The Judge repeatedly refused to credit the employee’s … Continue Reading