Archives: Unions and Organizing

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Ride-Hail Drivers Are Independent Contractors, Not Employees, NLRB GC Concludes

UberX and UberBLACK drivers are independent contractors, not employees, of Uber, the General Counsel (GC) of the National Labor Relations Board (NLRB) has determined in a recently released Advice Memorandum. The drivers therefore are not employees within the meaning of the National Labor Relations Act (NLRA) and are not eligible for NLRB-certified union representation or … Continue Reading

Representation-Case Procedures, Students as Employees, Access to Private Property on NLRB Rulemaking Agenda

Among the National Labor Relations Board’s (NLRB) rulemaking priorities under the National Labor Relations Act (NLRA) are its representation-case procedures, “blocking charge” and voluntary recognition standards, student status as employees, and access to employer private property. The priorities are included in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Long Term Actions/Short Term Actions), … Continue Reading

Labor Board: Is Union’s Inclusion of Weingarten Rights Statement in Collective Bargaining Agreement Coercive?

The National Labor Relations Board (NLRB) has remanded a 2013 decision to an administrative law judge to determine whether the Board’s landmark 2017 decision on work rules and policies affects its 2013 determination that a union did not violate National Labor Relations Act (NLRA) Section 8(b)(1)(A) by unilaterally including a Weingarten rights statement on the … Continue Reading

Labor Board: Nonmembers Cannot Be Compelled to Pay Union Lobbying Expenses

Unions no longer can require objectors to contribute toward union lobbying costs, the National Labor Relations Board (NLRB) has ruled in a 3-1 decision. United Nurses & Allied Professional (Kent Hospital), 367 NLRB No. 94 (Mar. 1, 2019). The NLRB said lobbying costs of all kinds are not considered part of a union’s statutory collective-bargaining … Continue Reading

NLRB Chairman Fires Back at Request to Withdraw Notice of Proposed Rulemaking on Joint Employment

John Ring, NLRB Chairman, has sent a five-page letter to several members of Congress in response to their request for the NLRB to withdraw its Notice of Proposed Rulemaking on the joint-employer standard. In the January 17, 2019 letter recently released to the public, the Board Chairman spent considerable time defending the Board’s position and … Continue Reading

Report: Union Representation Numbers Remain Low

Once again, the percentage of private sector union-represented workers fell – to 6.4% in 2018, from 6.5% in 2017, according to the Bureau of Labor Statistics of the U.S. Department of Labor. Highlights from the “Union Members – 2018” report include: Men had a higher union representation rate than women (11.1% to 9.9%). Black employees … Continue Reading

Bargaining Unit Can Still Be ‘Micro’ under ‘Community of Interest’ Standard

After the NLRB adopted a new standard for determining bargaining-unit composition, many expected fewer micro-units would result. PCC Structurals, 365 NLRB No. 160 (2017) (PCC I). However, when the employer filed a request for review (appeal) of the Regional Director’s decision allowing, on remand, a “micro-unit” of its employees to vote on union representation under … Continue Reading

D.C. Circuit Court of Appeals Upholds NLRB’s Browning-Ferris Joint-Employer Test, Cautions Board on Rulemaking

In a long-awaited decision, the D.C. Circuit Court of Appeals has upheld the controversial joint-employer standard articulated by the National Labor Relations Board in its 2015 Browning-Ferris decision. Browning-Ferris Industries of Calif., Inc. v. NLRB, D.C. Cir., No. 16-1028, 12/28/18. The Court held that the Board properly considered both the putative employer’s reserved right to … Continue Reading

Labor Board Further Extends Deadline for Submitting Comments on Proposed Joint-Employer Rulemaking

The National Labor Relations Board has once again extended the deadline for submitting comments regarding its proposed rulemaking on the standard for determining joint-employer status under the National Labor Relations Act, this time to January 14, 2019. Replies to comments submitted during the initial comment period must be received by the Board on or before … Continue Reading

NLRB Regulatory Action on ‘Quickie Election’ Rule Put on Back Burner

Employers waiting for the National Labor Relations Board’s revisions to union election rules will have to wait a bit longer. According to the latest agency regulatory agenda, that is a “long-term” action item, a downgrade from its prior ranking. This is a possible indication that revisions to the rules have become a less important priority … Continue Reading

Unions to Face Greater Scrutiny for Negligent Conduct to Their Members

National Labor Relations Board’s field office staff have been directed to prosecute a broader array of cases against unions that engage in negligent behavior toward their members, according to an internal memorandum obtained by Bloomberg BNA. The Office of the General Counsel Memorandum expresses a marked contrast to the Board’s historical position with respect to … Continue Reading

NLRA Preempts Municipality’s Right-to-Work Ordinance, Seventh Circuit Holds

While the National Labor Relations Act allows states to enact right-to-work laws, it does not authorize local municipalities to do so, the U.S. Court of Appeals for the Seventh Circuit, in Chicago, has held. I.U.O.E. Local 399 v. Village of Lincolnshire, No. 17-1300 & 17-1325 (7th Cir. Sept. 28, 2018). This decision is contrary to … Continue Reading

E-Verify Subject to Collective Bargaining

While I-9 compliance is important, companies cannot forget about other labor and employment laws. In May 2018, a meatpacking company in Illinois was caught between ICE and the National Labor Relations Board.ICE conducted an audit of the company’s I-9s. Upon notice of the audit, the company began implementing E-Verify. An NLRB judge ruled that the … Continue Reading

NLRB’s Proposed Rule Adopts Pre-Browning-Ferris Joint-Employer Standard

The National Labor Relations Board has announced that it will publish a “Notice of Proposed Rulemaking” in the Federal Register regarding its joint-employer standard. The notice will be published on Friday, September 14. The proposed rule will adopt the pre-Browning-Ferris standard for determining if two or more employers are joint employers of employees. The “Notice … Continue Reading

NLRB GC Institutes Changes to Certain Decision-Making Processes

The National Labor Relations Board’s General Counsel’s office has issued an internal Memorandum (“Changes to Case Processing Part 1”) to all regional directors, officers-in-charge, and resident officers announcing immediate enactment of case processing changes. The six-page memorandum, obtained by Bloomberg BNA, addresses four policies. Memorandum ICG 18-06 (July 30, 2018). According to the Memorandum, the … Continue Reading

Missourians Reject Right-to-Work

Missouri voters have rejected right-to-work. Senate Bill 19, which would have made Missouri the nation’s 28th right-to-work state, was passed by the Missouri legislature on February 2, 2017, and signed into law by then-Governor Eric Greitens. Labor organizations and their supporters gathered enough signatures to keep the law from going into effect until voters in … Continue Reading

Weingarten Rights Not Violated; Employee Lawfully Terminated for Refusal to Take Drug/Alcohol Test

An employee’s Weingarten rights have limits, especially as to drug and alcohol testing, where time is often of the essence, an NLRB Administrative Law Judge has held. Fred Meyer Stores, Inc., No. 19-CA-206136 (July 2, 2018). The National Labor Relations Board has long-recognized unionized employees’ right to have a union representative present for investigative meetings … Continue Reading

NLRB GC: Employer Can Unilaterally Implement Decisions Made Before Union Election Victory

An employer lawfully unilaterally implemented a stricter tardiness and absentee policy even though a union had recently won an election to represent its workers, according to a memorandum released by the National Labor Relations Board General Counsel’s Division of Advice. Cott Beverages, Inc., No. 16-CA-206068 (Div. of Advice, Apr. 26, 2018, released May 15, 2018). … Continue Reading

NLRB GC: Employer Can Refuse Union’s Request to Record Meetings and Interviews

The National Labor Relations Board General Counsel’s Division of Advice has concluded that an employer could refuse to allow a union’s representatives to record monthly team meetings and investigatory interviews. GE Appliances, Haier, 21-CA-202535 (Div. of Advice, Apr. 17, 2018, released May 15, 2018). The Division found the refusal was lawful based upon the Board’s … Continue Reading

Seattle Ordinance Giving Drivers Right to Collectively Bargain Not Preempted by NLRA

A landmark law giving drivers of app-based transportation companies, such as Uber and Lyft, the right to collectively bargain is not preempted by the National Labor Relations Act, a three-member panel of the Ninth Circuit Court of Appeals has ruled. U.S. Chamber of Commerce v. City of Seattle, No. 17-35640 (9th Cir. May 11, 2018). … Continue Reading

NLRB Chair Responds to Senators, Confirms NLRB Will Engage in Rulemaking for Joint Employer Standard

New NLRB Chairman John Ring has stated that the Board intends to use rulemaking to create a new joint employer standard. The statement was in response to a May 29 letter from Democratic Senators Elizabeth Warren, Kirsten Gillibrand, and Bernie Sanders that harshly questioned whether the agency planned to use rulemaking to create a new … Continue Reading

Labor Board Considers Joint Employer Standard Rulemaking

The National Labor Relations Board has begun the process to consider rulemaking to establish a standard for determining joint employer status under the National Labor Relations Act, according to the Board’s filing in the Unified Agenda of Federal Regulatory and Deregulatory Actions. The current standard is set forth in Browning-Ferris Industries, 362 NLRB No. 186 … Continue Reading

NLRB Failed to Support Conclusion that Employee’s Disparaging Comments Were Protected, Not Disloyal

The U.S. Court of Appeals for the District of Columbia Circuit has refused to enforce the NLRB’s order finding that an employee’s discharge violated the National Labor Relations Act because the Board did not satisfy the Supreme Court’s two-prong Jefferson Standard test for determining whether an employee’s disparaging statements to third parties about his employer … Continue Reading

Jackson Lewis Responds to NLRB Request for Information on Election Rules

Jackson Lewis, which has represented management before the National Labor Relations Board for 60 years, has filed its comments suggesting several important changes to the NLRB’s far-reaching 2014 election rule amendments.   In December 2017, the Board asked the public to submit comments on the efficacy of its 2014 election rule amendments, expressly asking if … Continue Reading
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