The NLRB continues to stretch the bounds of credible interpretation in the Sister’s Camelot decision, and in doing so are quite transparent about their tendency to bend (or ignore) the rules to fit their desires. Of the 11 factors designed to determine status as an independent contractor, the board seriously “bent” 4 of these in order to make their square peg fit the round hole of employee status that they were looking for. If you use independent contractors, click the link to get the details. Taxi drivers in Tucson, Arizona found similar favor in the eyes of the board. Since the Ambush Rule was first proposed, we have been highlighting several damaging components of the rule beyond simply the shortened election period. One of these is the modified terms of the Excelsior list provision, specifically the need to provide the list within 2 days of the direction of an election, and the fact that the list now had to include “available” personal home and cell phone numbers as well as personal email addresses. A recent case provides an example of how far an employer must go to ferret out this information from all possible sources, or face the prospect of winning an election, only to be directed by the board to hold a second election. A Connecticut hospital found out the hard way. When their 866 unit members voted against the union, the union objected that the hospital had failed to comply with the new Excelsior provisions, and the board agreed and directed a new election. The hospital had culled the information from their HR database, providing phone numbers for 94% of that database, as well as all of the personal email addresses it contained. Unfortunately, there were several other systems “available” to the hospital from which additional data could have been derived, including the applicant screening system used to fill open positions. The hospital argument that it would be unduly burdensome to sort through 36,000 records to locate possible additional information on the relatively small number of the voting unit was flatly denied. There were several other systems, both formal and informal, that also could have potentially provided additional information. Read the details of this article to see the examples, so you can examine more carefully what steps you should take in advance to provide a proper list. Exemplifying the unreasonableness of the current NLRB, the board held once again that an arbitration agreement is unlawful, despite having two similar findings reversed at the Fifth Circuit. The board seems to be maneuvering for a Supreme Court hearing on the subject by attempting to acquire a circuit split. In a couple of moves that went in favor of employers and employees,
- an NLRB General Counsel advice memo stated that installation of a GPS tracking system on an employee’s company vehicle did not require bargaining with a union
- the governor of Pennsylvania signed a law that will strip unions of their exemption from prosecution for stalking, harassment, and threatening to use a weapon of mass destruction during a labor dispute.
