Yesterday the NLRB released its rulemaking agenda. In addition to proceeding with its rulemaking regarding the joint-employer standard—the board will consider rulemaking in the following areas:

  • The Board’s current representation-case procedures.
  • The Board’s current standards for blocking charges, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.
  • The standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 153(3)).
  • Standards for access to an employer’s private property.

Read the press release here.

Although Weingarten rights allow union representatives to be present in an interview of an employee that could lead to disciplinary action, this doesn’t give the union full reign to disrupt the employer interview of the employee. The NLRB reinforced this in the recent PAE Applied Technologies ruling. When one of the two union representatives began questioning the PAE investigator at the start of the meeting, which soon turned into a shouting match between the union and employer representatives, the investigator instructed all parties to stop talking and informed them that he alone would ask questions. Only after the investigator had concluded were others in the room allowed to ask questions. The investigator used wisdom in structuring the session, using written statements with verbal clarification, allowing the employee to confer with the union representatives in due time, and allowing all to ask questions in sequence. The NLRB found no fault with his process.

The NLRB General Counsel Peter Robb has shifted the burden of proof to the union in regard to fees collected from non-members. Unions are prohibited from using these fees for anything other than collective bargaining, but prior to now, the employee had to prove that the union was spending the money unlawfully. According to a memo from Robb, if an employee accuses a union of misspending the money, the union must prove the expenses are related to bargaining.

In Metalcraft of Mayville, the NLRB upheld a Wisconsin employers decision to cease withholding of union dues from employee paychecks, determining that the unions dues checkoff provisions did not comply with the newly enacted right to work law in that state. The board found that the move was not an illegal midterm contract modification, nor did he act in bad faith in unilaterally stopping the deductions.

The Board found that an employer cannot prohibit its employees from speaking to the press, explaining that “employees have a statutory right to speak publicly about their complaints or concerns with their terms and conditions of employment, including to the press, without employer authorization.” The company’s policy was deemed unlawful.

The continually fluxing definition of independent contractors (vs. employees) received some clarification from the DOL late last month, when the department responded in an opinion letter to an anonymous “virtual marketplace company.” The letter outlined six factors that impact the determination, and caution that no single factor is determinative but a holistic analysis must be used in each situation. If this is of interest, read the details here, and be warned that the courts and state law may also have an impact on the end result.

The Trump administration finally took steps to prevent unions from skimming medicaid funds out of the pockets of intended recipients. The new medicaid rule goes into effect in July. The liberal-controlled states of California, Connecticut, Illinois, Massachusetts, Minnesota, Oregon, Vermont, and Washington diverted up to $1.4 billion from caregivers to unions since 2000.