Union Bailout Update

by | Apr 28, 2016 | Uncategorized

Activity around the recently imposed Persuader Rule is picking up. The House Education and Workforce Committee lambasted the rule and scheduled hearings, while several groups filed suit. Other Republican lawmakers signed a letter asking the House Appropriations Committee to take action against both the DOL and the NLRB. It appears the chasm through which the “protected concerted activity” can be run through is widening by the day. A foul-mouthed rant against a client between employees in the restroom now qualifies. In another case, badmouthing the company and one of its owners over the company’s two-way radio system is also safe ground for disgruntled workers. In the effort to create the broadest possible interpretation of protected concerted activity, the NLRB continues to defy the courts, especially around class and collective action waivers. In the independent contractor vs. employee tug-of-war, it seems the courts will likely allow “ties” to go to the NLRB. In a recent decision, using the ten-factor tests set out in FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C. Cir. 2009), and Corporate Express Delivery Systems v. NLRB, 292 F.3d 777 (D.C. Cir. 2002), the D.C. Circuit Court of Appeals decided that if 5 of the 10 tests indicated employee status, the NLRB would win the argument.

NLRB General Counsel Richard Griffin

NLRB General Counsel Richard Griffin

NLRB General Counsel Richard Griffin has issued a list of high-priority issues he demands to be submitted to his office from his Regional Directors, Officers-in-Charge, and Resident Officers. Among the two most important groups of issues (of a total of 24) are included matters that involve General Counsel initiatives or priority areas of the law and labor policy, such as:

  1. the application of Purple Communications, 361 NLRB No. 126 (2014) to electronic systems other than email,
  2. the applicability of Weingarten principles in non-unionized settings,
  3. allegations that “English-only” policies violate the National Labor Relations Act,
  4. whether the misclassification of employees as independent contractors violates the NLRA.

The second group involves matters that involve “difficult legal issues or the absence of clear precedent,” and include such issues as:

  1. the rights of contractor employees to have access to the property where they are working to communicate with coworkers or the public,
  2. whether novel forms of disruptive conduct, such as coordinated “shopping,” excessive use of loudspeakers, or corporate campaigns, constitute violations of the NLRA,
  3. the need to harmonize the NLRA with local, state or federal statutes or where potential or actual overlapping jurisdiction with other federal agencies exists

Dennis Walsh

Dennis Walsh

If you ever wonder just how “union complicit” the NLRB tends to be, just review the case of Dennis Walsh, a Philadelphia Regional Director. Walsh was the chairman of a labor-funded advocacy group – raising money from many of the very unions he was supposed to investigate – and misled the NLRB ethics officers about his involvement when tapped for the Regional Director job. What happened when the truth was revealed? He had his hand slapped (suspended for 30 days), was forced to resign his position from the group, but then put right back to work “investigating” the unions as before. You can download a PDF of the investigation report here. In an interesting twist to the ongoing franchise saga, Michigan passed a package of bills designed to protect franchisors from the NLRB. It would be expected that the NLRB will attempt to claim federal law would take precedence over such state action. In Wisconsin, the squabble over the state’s recently passed Right To Work law continues as a Dane County judge declared the law unconstitutional. A stay of ruling has been sought by the state Department of Justice and an appeal will be filed.

INK Newsletter

APPROACHABILITY MINUTE

GET OUR RETENTION TOOLKIT

PUBLICATIONS

Archives

Categories