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Union Bailout Update

The National Labor Relations Board is relentless, like water eroding rock one drop at a time.

Although it seems a slight alteration, the NLRB changed a 50-year-old standard when it ruled recently that unions and employers can’t hold mass representation campaign meetings 24 hours before ballots are to be mailed to workers in mail-ballot elections. The prior restriction was 24 hours after ballots were mailed.

The board is also chipping away at the definition of supervisors, making it easier for unions to include them in bargaining units. This latest ruling does have some subtle clues for organizing supervisory work in such a way that you can stack the deck in your favor.

The DOL announced that it will finally implement changes to overtime requirements as of July 2016, impacting particularly white collar exemptions from federal overtime requirements. The DOL (along with the NLRB) continues to attack the line between independent contractors and employees, and we expect an NLRB decision in a recent Uber organizing case to continue this attack.

The courts have weighed in as well. In the appeals courts, the Third Circuit ratcheted up protected concerted activity to include complaining (while naming actual amounts) about executive salaries. And the recent sad loss of Justice Scalia means that the anticipated outcome of an employer-friendly Friedrichs decision has likely been stalled indefinitely.

On the one bright note, the Third Circuit did find that a company can reject the terms of an expired collective bargaining agreement if the following factors are present:

  • the distressed company made a proposal to employees which includes modifications to employee benefits and protections which are necessary to permit reorganization;
  • the employees’ representative refused to accept said proposal without good cause;
  • the balance of equities clearly favors rejection of the CBA.

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