Archives: Unions and Organizing

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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

Changes in Circumstances Counsel against NLRB Issuing Bargaining Order, Court Concludes

A bargaining order is an extreme form of relief and should not be issued without careful consideration of whether changed circumstances render such an order inappropriate, the U.S. Court of Appeals for the Second Circuit, in New York, has explained, remanding an unfair labor practice case to the Board. Novelis Corp. v. NLRB, 2018 U.S. … Continue Reading

Charter Schools Covered by NLRA? Not in Texas

The U.S. has more than 6,000 charter schools. They are authorized in almost every state. While state laws vary, their purpose is the same: to permit alternatives to traditional public schools, unbound by local school districts or district-wide collective bargaining agreements that can stifle innovation. These laws frame charters as public schools, subject to the … Continue Reading

Employee’s Improper Access to Secured Area Outweighs Right to Engage in Concerted Activity, NLRB Finds

The National Labor Relations Board has held that an employee lost the protection of the National Labor Relations Act when he improperly accessed a secure area of the employer’s hotel, even though he did so in order to engage in otherwise protected concerted activity. KHRG Employer, LLC, 366 NLRB No. 22 (Feb. 28, 2018). The … Continue Reading

Browning-Ferris Back in the Spotlight … and at the Court of Appeals?

The drama involving the National Labor Relations Board’s precedent-busting 2015 joint employer decision continues. Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), dramatically changed the playing field for employers who rely on nontraditional workforces. The NLRB transformed its prior joint employment standard in Browning-Ferris into a two-part test that permits a finding of … Continue Reading

Changes

The song “Changes,” written by Phil Ochs, provides an opportune prism to examine the arguably cataclysmic changes implemented and portended by the new employer-friendly majority at the NLRB at the end of 2017 and expected in 2018.   Sing along, enjoy the lilt. Don’t cry o’er case law that’s spilt.   Come sit by my … Continue Reading

NLRB Vacates Hy-Brand Joint Employer Decision Following Inspector General Report

In a surprising reversal, the NLRB on February 26, 2018, vacated its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), and restored the Board’s union-friendly joint employer test set forth in Browning-Ferris Industries, 362 NLRB No. 186 (2015) which Hy-Brand had overruled. The Board’s latest reversal came about as a result of … Continue Reading

NLRB Continues to Ask Whether Voters Were Potentially Disenfranchised When Polls Not Timely Opened

The National Labor Relations Board has reaffirmed it will apply a “potential-disenfranchisement” test, not an “actual-disenfranchisement” test, in determining whether employees were affected by a late opening of the polls at an NLRB-conducted election. Bronx Lobster Place LLC, Case 02-RC-191753 (Feb. 2, 2018) (unpublished). The employer had lost the election 14-12; there was one challenged … Continue Reading

NLRB Joint Employer Decision at Risk?

The Board overturned Browning-Ferris Industries, 362 NLRB No. 186 (2015), in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), and returned to the more employer-friendly principles governing joint-employer status that existed prior to that decision. Now, however, the five individual Charging Parties in Hy-Brand have filed with the Board a Motion for … Continue Reading
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