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Union Bailout Update

McDonald’s has become the poster child for testing the breadth of impact of joint employer status. In a recent sexual harassment case, the EEOC has indicated it plans to follow the reasoning of Browning-Ferris, allowing it to “apply new legal standards” if it confirms the allegations.

The NLRB just made “on-premises” restrictions to picketing activity a more slippery slope in the Capital Medical Center ruling. Off-duty employees could not be constrained from picketing peacefully near the entrances of the hospital. The board applied a balancing test weighing employee’s Section 7 rights against the employer’s property rights, and since the picketers were not disrupting healthcare operations, they were allowed to continue.

The NLRB General Counsel is attempting to expand protection to striking workers, asking regional directors and officers to change precedent and take a new legal direction outlined in a model brief for use with intermittent and partial

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Joint Employer Status

We reported earlier on Microsoft’s attempt to fight off a joint employer investigation. In July the NLRB denied Microsoft’s petition to revoke the board’s petition. The tenuous vehicle used to attempt to force the joint employer connection in the Microsoft case was a corporate social responsibility policy. The board struck again in Miller Anderson, Inc.

In a related offshoot to the joint employer question, Subway decided to partner with the DOL in a move to improve FLSA compliance among Subway franchisees. Although the agreement does not address joint employer, it remains to be seen how such an alliance may impact the joint employer status under scrutiny of the NLRB.

Union Bailout Update

The NLRB finally opened their joint employer case with McDonald’s as their target. One of the first NLRB gambits was to shut down McDonald’s attempt to subpoena SEIU and its PR firm, BerlinRosen. McDonald’s had planned to defend itself by arguing it was allowed to protect its brand during the SEIU-sponsored 2012 fast food strikes that created the underlying ULPs in the case. While Board law generally allows franchisors to impose greater control over franchisees if they do so in the name of brand integrity, the board disingenuously (with board member Miscimarra dissenting) discounted the motives of SEIU in the action. The case is speculated to hit the Supreme Court, and could hinge on who fills that court’s vacancy. The Department of Labor has already been ramping up efforts to make joint employer an enforcement priority in FLSA and FMLA issues.

Employer handbooks continue to become a

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Labor Relations Insight – November 2015

by Phil Wilson Big Labor’s $6.6 Billion Payday

Big Labor has a lot to be thankful for in 2015. Let’s face it. If you’re counting blessings the National Labor Relations Board offered quite a few. From the Ambush Election Rule to expanded online organizing to the Browning Ferris joint employer decision, unions received a lot of gifts this year.

In spite of these gifts, Big Labor is still running in place. For example, unions got the NLRB to rewrite how it conducts union elections – slashing the average election time by nearly one-third (from 38 to around 25 days). But unions have conducted nearly the exact same number of new organizing drives they did during the same period in 2014.

Some argue it is too early to judge how unions will profit from these changes. They say unions are just figuring out how to take advantage of the new election

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BFI Joint Employer Decision Gets Invoked on Microsoft

On August 27, the NLRB announced its decision in the joint employer case of Browning Ferris Industries. This ruling – that BFI was in fact a joint employer with its contracted company, Leadpoint, and is thus responsible for and included in the bargaining negotiations with the union – has left businesses across the country bewildered. This is because the criteria the Board set in place to determine joint employer status is just vague enough that determination has more to do with the opinion of Board members, rather than direct and distinct guidelines.

Many believe that this decision is further proof of the NLRB’s effort to help boost union numbers. If the bargaining unit of a company that does contract work for a larger company is “technically” a part of that larger company, then the union has just weaseled its way into a bigger pool without the larger company’s

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Union Bailout Update

UFCW Electronic CardWe have sent out several updates recently announcing the use of electronic means of collection signatures for union organizing drives. While there is greater potential for fraud and abuse with electronic systems, the requirements to qualify as a valid system are more stringent than for paper cards or petitions. Understanding what they are may provide the opportunity to challenge a request for election.

The attorneys at FranczekRadelet provided a nice summation of the process:

Submissions supported by electronic signature to establish a showing of interest must contain the following information:

The signer’s name; The signer’s email address or other known contact information (e.g., social media account); The signer’s telephone number; The language the signer agreed to (e.g., that the signer wishes to be represented by the union for collective

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Union Bailout Update

The Ambush Rule is having the impact intended (by the unions and their NLRB supporters). According to a random sampling of 42 elections filed since the rule went into effect, the new average time between the date of filing and the election is 23.5 days, which is a 14.5-day decrease to the average prior to the rule. Additional results of the survey include:

A high of 35 days from filing to election. A low of 10 days from filing to election. 3 cases with 13 days or less. 7 cases with 19 days or less.

It’s too early to gage the impact on the winning percentages, but once we have enough data to make an assessment we’ll let you know. Although Congress made noise that they were going to attempt to nullify the rule, they ended up tabling the maneuver, perhaps realizing they couldn’t get past a presidential

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Union Bailout Update

ambushAs we knew would happen, Congress’ effort to nullify the Ambush Election rule was vetoed by the President. In preparation for the rule going into effect, the NLRB rolled out training for staff at (no surprise) the New York offices of SEIU local 32BJ. Business groups, spearheaded by the Chamber of Commerce, haven’t given up the fight yet, and have filed yet another motion to invalidate the rule. However, the rule is in effect, and will remain so unless a serious court challenge or additional legislative action intervenes. On April 6, NLRB General Counsel Richard F. Griffin, Jr. released a lengthy Guidance Memorandum on the application of the rule.

In another move being touted as the NLRB declaring “war on right-to-work,” the board signaled that it intends to Continue reading Union Bailout Update

Union Bailout Update

GOP members are turning up the heat on labor law, introducing two new reform bills. The first, sponsored by Senators Mitch McConnell (KY) and Lamar Alexander (TN), is designed to de-politicize the NLRB by adding a sixth member and requiring that the board be selected in conjunction with the leader of the Senate from the opposite party of the President. It also attempts to reign in the power of the NLRB’s General Counsel. This appears sorely needed. In a recent move, the GC arbitrarily changed the arbitration rules on the basis of the Babcock & Wilcox Construction decision, placing the burden of proof for deferral to arbitration on the party favoring it, which is usually management, and will likely make such deferrals harder to come by.