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Union Bailout Update

If you belong to the U.S. Chamber of Commerce (you should!) you received their Labor, Regulation, and Employee Benefits Division Labor Update. For those of you that don’t, just a taste of what the report contains, speaking of the Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2018:

“The bill would also fund the National Labor Relations Board at $249 million, which represents a decrease in funding of $25 million (the Board is currently funded at $274 million). The legislation contains the following funding limitations with respect to the NLRB:

  • Prohibits the use of ‘any new administrative directive or regulation’ with respect to electronic voting in representation elections conducted by the Board;
  • Prohibits the NLRB from asserting jurisdiction over Native American employers;
  • Bars the Board from using funds to ‘issue, enforce, or litigate any administrative directive, regulation, representation issue, or unfair labor practice proceeding, or any other administrative complaint, charge, claim, or proceeding based on the standard for determining whether entities are ‘joint employers’ set forth by the National Labor Relations Board in Browning-Ferris Industries of California, Inc., 362 NRLB No. 186 (August 27, 2015).’”

At the end of June, the Education & Workforce Committee of the House approved 3 bills:

  • H.R. 986, the Tribal Labor Sovereignty Act of 2017
  • H.R. 2776, the Workforce Democracy and Fairness Act
  • H.R. 2775, the Employee Privacy Protection Act

If these move forward successfully, we’ll provide more details on what’s in them.

Joint Employer – mentioned in the U.S. Chamber document above related to NLRB budget restrictions, is under further scrutiny, with the Education & Workforce Committee’s hearing on July 12th.

For additional regulatory agenda items high on the Trump administration list, review this article and click through to the detailed blueprint. There’s not a lot related to the DOL, but we’ll take what we can get.

As evidence that the current NLRB remains union-friendly, the board just ignored the courts again to rule that Junior High and High School Lacrosse referees are to be considered employees, not independent contractors.

The board inched a bit closer to having a full panel when the Senate Health, Education, Labor, and Pensions Committee voted on July 19th to advance the nominees (Marvin Kaplan and William Emanuel) to a full Senate confirmation vote.

In the courts, the Eighth Circuit awarded a victory to employers when it overturned the NLRB case against Jimmy John’s. Jimmy John’s had disciplined employees during a public protest. While participation in such a protest is normally considered protected concerted activity, the employee actions were so disloyal, materially false, and misleading that they lost the protection provided by Section 7 of the NLRA, which shields employees who engage in concerted activities for mutual aid or protection from adverse employment actions, indicating that employee rights to protest do have limits.

Not so lucky in the Eighth Circuit was a Kansas City Burger King franchise. When a new owner took over the a Burger King location (one of several), it retained the general manager, who then rehired most of the staff, excluding Terrance Wise. The manager testified that her decision not to rehire Wise was based on his limited availability, instances of insubordination and a record of tardiness, but the judge determined that it was more likely because Wise was a “well known labor organizer,” and had brought ULP charges against another of the Burger King locations where he had been employed.

California legislators (one of the most union-friendly bodies on the planet) are on the verge of passing a new law that requires that private-sector workers in the home-care industry provide a wide range of personal information to any labor organization that wants it, including home address, email contact, and cell-phone number. Although limited to a single industry, the camel’s nose will be firmly inserted into the tent.

California’s new “Ban the Box” legislation became effective this month, making it more difficult for employers to inquire about potential employee’s criminal convictions.

Adding additional hiring restrictions to employers, San Francisco became the latest jurisdiction to ban questions of salary history during the hiring process.

California is also home to a troubling trend – unions using legislation to bypass the collective bargaining process. The California Nurses Association has already used staffing ratios to circumvent the issue at the bargaining table, and bills moving through the legislature may do the same for dialysis clinics and ambulance services, raising health care costs (and union coffers) simultaneously.

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