Union Bailout Update

by | Aug 27, 2015 | News

As we are awaiting a ruling on the joint employer issue, the NLRB is determined to hide behind a veil of generalities rather than provide any useful guidelines as to just what has created the “joint employer” status in the McDonalds case. On Aug. 14th, the board affirmed the decision of an Administrative Law Judge to deny a motion by McDonalds for a bill of particulars. The decisions in the McDonalds and Browning Ferris cases will impact all businesses, not just franchisors. In case you missed our breaking new post of moments ago, the Browning Ferris decision just came down from the NLRB. The NLRB continually bends over backwards to extend the benefit of the doubt to employees who misbehave on the job. In this latest incident, although the employee apparently lied about an injury, because the interview process with the employee did not include union representation, his dismissal was overturned. Make sure to cross your t’s and dot your i’s. Confidentiality rules came under fire again, this time at a Maine T-Mobile facility. The company was baffled. According to Annie Garrigan, a spokeswoman for T-Mobile,

“We find the Administrative Law Judge’s decision puzzling since T-Mobile’s approach to confidentiality is consistent with the National Labor Relations Board’s own investigation manual,” Garrigan said. “Best practices for maintaining the integrity of internal investigations include keeping the names of witnesses confidential and requiring witnesses to maintain confidentiality in order to ensure that information provided by subsequent witnesses is not tainted.”

Employer communication during an organizing campaign took another hit when the board ruled that an employer who warned workers before an election that getting a union could hurt business was making an illegal “veiled threat.” Here’s a new strategy the NLRB has invented to prohibit you from firing disgruntled employees: they can file an FLSA claim, as a collective action, even though no other employee has asked them to do so. In this way, their action can be classified as Protected Concerted Activity and you cannot fire them. As the 2016 election season looms, you are sure to hear more rhetoric from the Democrat candidates related to card check legislation, since unions are one of their key sources of campaign financial support. Hillary Clinton and Bernie Sanders have already brought this tired suit out of the closet, but mostly in more “private” meetings with unions, as the American public is not (and never has been) behind card check.clinton-sanders On the Republican side, another attempt at legislation protecting worker freedoms to NOT have a union has been proposed again, as the Employee Rights Act, by Orrin Hatch in the Senate and Tom Price in the House of Representatives.  It is unlikely to gain enough traction to go very far, but it does give Republicans a rallying point if needed during the campaign. hatch-price If you’ve been looking for a nice testimonial related to the problems of card check, check this one out.

Former NLRB General Counsel Lafe Solomon

Former NLRB General Counsel Lafe Solomon

And in an interesting twist, an appellate court invalidated the appointment of Lafe Solomon as acting NLRB General Counsel (his tenure was from about Jan 2011 through early Nov. 2013).  However, the court ruled that ULPs issued by Solomon’s office are not automatically deemed invalid. Instead, each company has to invoke the defense or it was considered waived. Thus, any employer with outstanding ULPs filed between Jan. 5th, 2011 and Nov. 4th, 2013 should review the status and determine whether they could still raise the issue.

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