Union Bailout Update

Coming as no surprise, Mark Pearce was nominated to serve a third term on the NLRB. As much as the business community was opposed to the move, the Democrats allegedly tied Pearce’s re-nomination to a package of other pending approvals across several departments. NLRB chairman John Ring took a stab at Democrats for trying to influence a case involving McDonalds. Democrats attempted to bar Ring and board member William Emanuel for being “conflicted,” since their former law firms did work for McDonalds. In a letter to the Senate Health, Education, Labor and Pensions Committee, Ring called the attempt “distressing.” With the vacated Hy-Brand ruling, which overturned Browning-Ferris and returned joint employer determinations to previous standards, the franchise community has been waiting for the next NLRB move to correct the joint-employer playing field. On September 14th the board proposed a new regulation limiting the definition of joint employer status. The new test would be as follows:

An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.

The proposed rule will have to follow the lengthy rule-making process before it becomes the new standard. In another move to improve standards for workers, the NLRB general counsel’s office issued a directive providing clarification for when field offices should pursue charges against unions for “negligent behavior” when employees file charges of non-representation against their union. The letter stated in part,

Regions issuing a complaint in these cases should argue that generally, a union which loses or misplaces a grievance engages in gross negligence unless it has a system or procedure in place which, while reasonable, was not effective in a particular case for an identifiable and clearly enunciated reason.

The budget appropriations bill headed to the Senate in mid-February keeps the NLRB funded at levels equal to the previous year, while trimming the Labor Department funding overall by about $128 million. For employers of tipped workers, the 9th Circuit Court of Appeals has ruled that when engaged in non-tipped activities, such as cleaning bathrooms or making coffee, employees must be paid minimum wage. The reach of the ruling is limited, so check the article for details. As was expected after the Janus ruling in June, a class-action lawsuit filed in Oregon is seeking a refund of fees collected by various public-sector unions. Named in the suit were the SEIU, AFSCME, and the Oregon Education Association. At least one Oregon public employee has already received a refund when SEIU Local 503 moved to settle a case, refunding $2,959.81 for more than two years worth of fees.