In Stark Reversal of Precedent, NLRB Finally Adopts “Contract Coverage” Standard for Employer Unilateral Changes
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Some Guidance for Employers on Drafting Lawful Conduct Rules
Earlier this month, the NLRB’s Division of Advice (“Advice”) released a memorandum that opined on a variety of CVS Health’s (the “Company’s”) policies. It considered whether those policies were “unlawfully overbroad” as they related to employees’ Section 7 rights under the NLRA. It found that some were, but most were not.
The advice memorandum is a good read for labor professionals. It provides examples of permissible employer regulations on employee conduct, including social media policies…
NLRB Issues Notice of Proposed Rulemaking Amending Election Procedures
On August 12, 2019, the NLRB published a Notice of Proposed Rulemaking in the Federal Register regarding election procedures that the NLRB majority contends is essential to preserving employees’ right to free choice of representation.
The proposed rule contain three changes to current NLRB election regulations:
First, it replaces the current blocking charge policy with a vote-and-impound procedure. That is, under the amended regulations, a union election would not be blocked by a pending unfair…
The NLRB Expands Employer Authority over its Publicly Accessible Spaces
In a win for employers’ private property rights, the NLRB last month gave employers greater rights to control how their property is used, including what occurs on publicly accessible spaces within that property, like a cafeteria. In UPMC Presbyterian Hospital, 368 N.L.R.B. No. 2 (2019), the NLRB held that “an employer may prohibit nonemployee union representatives from engaging in promotional activity, including solicitation or distribution in its public cafeteria so long as it applies the…
NLRB GC Says Uber Drivers are Independent Contractors
Last month, the NLRB General Counsel issued an advice memorandum concluding that Uber drivers are independent contractors. The GC applied the recent NLRB decision in Super Shuttle, which clarified the test applied under the NLRA to determine “employee” status. In the process, it overturned an Obama Board precedent that the NLRB majority held was incorrectly decided. As a result of this action, the GC directed that three different ULP charges filed against Uber be…
A Bad Week for Unions: The NLRB and NLRB GC Focus on Union “Membership” and the Money
The NLRA permits employers and unions to agree to “union security” clauses in a collective bargaining agreement. This clause requires employees to join the union (and pay dues) or lose their job with the employer.
Congress imposed this “membership” obligation on employees to eliminate what some call the “free rider” problem. The NLRA requires a union to represent all employees in a bargaining unit. Without the union security provision, an employee might reap the benefits…
Nondiscriminatory Signage Ban Deflates Scabby the Rat
The Seventh Circuit recently ruled that a municipality’s nondiscriminatory ban of all private signs from the public roads and right-a-ways could be used to take down Scabby the Rat. Scabby is a giant, inflatable balloon that is available in sizes 6 to 25 feet tall. (The website the court cited in its opinion is here, for the curious!) Unions have historically used Scabby (or other inflatables) to draw attention to labor disputes by posting…
NLRB Revisits and Clarifies Test for Independent Contractors; Overturns 2014 NLRB Decision
The Trump NLRB continues to revisit, and overturn, Obama-era decisions. Late last week, in SuperShuttle DFW, Inc., the NLRB revisited the test for determining when a worker is an independent contractor, and in the process overruled the Obama NLRB’s decision in FedEx Home Delivery.
First, however, a little background information. As we have previously discussed, employees may join unions; independent contractors may not. Thus, whether a worker is an employee or an independent…
Joint Employer Issue at the NLRB: Update on Recent Activity
The joint employer issue at the NLRB continues to be a hotbed of activity. We last updated our readers on this issue in mid-December. Here’s what has happened since then:
Developments in the Courts. At the end of the year, the U.S. Court of Appeals for the D.C. Circuit ruled in the appeal of the Obama Board decision that started it all: BFI v. NLRB. The court refused to enforce the NLRB’s order finding joint…
Will Nathaniel Ogle Get His Money Back? Defendant Files Motion to Dismiss in Ogle v. Ohio Civil Service Employees Association
Janus v. AFSCME has opened the door for nonmember employees to sue unions for collecting fair share fees, and employees are taking action. As readers of this blog know, Janus holds that requiring employees to pay a fee to a union without the employee’s affirmative consent is a violation of the First Amendment. As discussed in our previous blog post, Nathaniel Ogle sued last year, on behalf of himself and others, to enjoin OCSEA…