Articles Posted in NLRB Decisions

collegeThe National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects a wide range of activities by employees related to organizing for collective bargaining and other purposes. Whether or not a particular individual is an “employee” within the meaning of the NLRA is a critically important component of determining whether the statute applies. This has been a contentious issue on college and university campuses around the country in recent years. The National Labor Relations Board (NLRB) has issued several opinions affecting people who work, or who perform services that resemble “work,” for colleges and universities, including faculty members, student assistants, and scholarship athletes. A memorandum issued by the NLRB General Counsel in late January, identified as GC 17-01, offers new guidance in light of three of these decisions. While the memorandum does not have the force of law, it could have an impact on future decisions by both the NLRB and the courts.

Employees have the right to “self-organization” under the NLRA, which includes forming or joining labor unions and engaging in “concerted activities” aimed at collective bargaining or “other mutual aid or protection.” 29 U.S.C. § 157. The plain language of the statute indicates that employers are only obligated to respect this right for “employees.” The NLRA’s basic definition of “employee” as “any employee…not…limited to the employees of a particular employer” is not very helpful. Id. at § 152(3). The statute identifies specific exclusions from the definition of “employee,” such as agricultural laborers and independent contractors, but it offers little guidance otherwise. The task of identifying who falls under the statute’s definition has mostly fallen to the NLRB, and the university environment has shown the difficulty of defining the term.

The first case cited by the NLRB counsel involved the board’s jurisdiction over private colleges and universities that identify themselves as religious in nature. Pacific Lutheran University, 361 NLRB No. 157 (Dec. 16, 2014). The U.S. Supreme Court had determined that church-operated schools were not subject to the NLRB’s jurisdiction in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). The Pacific Lutheran decision modified the NLRB’s earlier interpretation of the Supreme Court ruling, finding that the school must establish that “First Amendment religious rights…are even implicated” before claiming a religious exemption. Pacific Lutheran at 6.

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weldingThe U.S. Department of Labor (DOL) issued a final rule, known as the “persuader rule,” in early 2016. The rule dealt with actions by employers, both direct and indirect, “to persuade employees about how to exercise their rights to union representation and collective bargaining.” 81 Fed. Reg. 15923, 15924 (Mar. 24, 2016). It marked a significant change from the agency’s previous interpretation of an employer’s obligation to disclose communications related to labor organizing activity. A court permanently enjoined implementation of the new rule in November, however, finding that the DOL exceeded its rulemaking authority. The old version of the rule, based on the old interpretation of the statute, remains in effect.

The Labor Management Reporting and Disclosure Act (LMRDA) of 1959, 29 U.S.C. § 401 et seq., requires employers to disclose various payments and communications made to labor organizations, employees, and others with regard to union organizing activities. For example, an employer must disclose payments made to an employee or a group of employees to induce them “to persuade other employees” with regard to “the right to organize and bargain collectively through representatives of their own choosing.” Id. at § 433(a)(2). The statute might also require the disclosure of communications involving attorneys or consultants specifically involved in advising an employer about ongoing labor negotiations.

Section 203(c) of the LMRDA, id. at § 433(c), exempts certain communications from the disclosure requirement. The persuader rule determines how far this exemption applies. Under the previous interpretation of the persuader rule, disclosure was only required if a consultant communicated directly with employees. The DOL concluded that this “left a broad category of persuader activities unreported” and therefore “den[ied] employees important information” they might need to make an informed decision about union representation. 81 Fed. Reg. at 15924. It modified the persuader rule to include the disclosure of both “direct” and “indirect” activities aimed at “persuading” employees. See 29 C.F.R. § 406.2(a).

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strikeThe National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects the rights of workers to engage in various activities related to labor organizing and collective bargaining. It prohibits employers from interfering in such activities and from retaliating against workers for engaging in protected activities. The National Labor Relations Board (NLRB) investigates alleged violations and adjudicates complaints. This summer, it considered whether an employer violated the NLRA by disciplining a group of employees who participated in a brief work stoppage. It found that the employees’ actions were protected and that the employer was in the wrong. Wal-Mart Stores, Inc., 364 NLRB No. 118 (Aug. 27, 2016).

Section 7 of the NLRA grants broad protection to “self-organization,” “bargain[ing] collectively through representatives of [employees’] own choosing,” and “concerted activities” related to those purposes. 29 U.S.C. § 157. Employers may not “interfere with, restrain, or coerce employees” who are exercising these rights, according to § 8(a)(1) of the statute. Id. at § 158(a)(1). Since the list of protected activities in § 7 is quite expansive, the NLRB and the courts have interpreted its extent in various situations through caselaw.

The “concerted activities” described in § 7 include “mutual aid and protection.” Id. at § 157. The NLRB has interpreted this to include work stoppages and other “activities engaged in for the purpose of applying economic pressure on employers.” Wal-Mart, slip op. at 3, citing Atlantic Scaffolding Co., 356 NLRB 835, 836–837 (2011). It developed a 10-part test for balancing employees’ and employers’ rights, with factors including the reason for the work stoppage, whether it was “peaceful,” whether it “interfered with production or deprived the employer access to its property,” the duration of the stoppage, employees’ “opportunity to present grievances to management,” and the reasons for disciplinary action. Quietflex Mfg. Co., 344 NLRB 1055, 1056–1057 (2005).

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Twitter Tweet ChatThe National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects workers’ right to engage in various activities related to organizing for the purpose of collective bargaining. In early 2016, an administrative law judge (ALJ) ruled in favor of a worker who alleged that his employer terminated him, in part, because of critical messages posted to the social media platform Twitter. The employer claimed that the employee had violated its social media policy. The ALJ ordered the employee’s reinstatement and further ordered the employer to rescind its social media policy and other policies, finding them to be in violation of the NLRA. The National Labor Relations Board (NLRB) affirmed the ALJ’s ruling. Chipotle Services LLC et al., No. 04-CA-147314, ALJ dec. (NLRB, Mar. 14, 2016); 364 NLRB No. 72 (Aug. 18, 2016).

Employees’ “right to self organization,” to collective bargaining, and to “concerted activities” directed towards these goals are commonly known as “Section 7 rights,” after § 7 of the NLRA, 29 U.S.C. § 157. An employer engages in “unfair labor practices” when it “interfere[s] with” or “restrain[s]” an employee’s efforts to exercise those rights. NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1). The internet, social media, and other new communications technologies have vastly expanded opportunities for concerted activities protected by § 7. The NLRB has addressed numerous disputes over which, if any, restraints employers may place on employees’ use of social media.

The respondent in the Chipotle case operates a nationwide chain of restaurants. According to the ALJ’s ruling, it required employees to abide by a “social media code of conduct” that prohibited “disparaging, false, misleading, harassing or discriminatory statements about or relating to” the employer and other parties. Chipotle, ALJ dec. at 4. The employer stated that it reserved the right to “ take disciplinary action, up to and including termination,” for violations of this policy. Id.

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Mark Muir MillsThe National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects the right of workers to organize for the purpose of collective bargaining with their employers. It prohibits discrimination or retaliation for engaging in union-related activities, as well as interference with those activities. The National Labor Relations Board (NLRB) is responsible for enforcing these protections, as well as ruling on disputes between employees and employers. A recent NLRB decision found that an employer engaged in unfair labor practices by terminating an employee for testifying before a legislative committee. Oncor Electric Delivery Co., 364 NLRB No. 58 (Jul. 29, 2016). The employer argued that the employee’s testimony was an individual act, rather than “concerted activity” protected by the NLRA. It further claimed that termination was justified because of “malicious falsehoods” in the employee’s testimony. Id. at 2. The NLRB rejected the employer’s arguments and ruled in the employee’s favor.

Section 8(a)(3) of the NLRA prohibits employers from using disparate treatment or other forms of discrimination to “encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). In order to demonstrate a violation of § 8(a)(3), an aggrieved employee must establish that they were engaging in activity protected by the NLRA, including both direct union activity and “concerted activity.” See NLRA § 7, 29 U.S.C. § 157. They must also show a causal connection between the employee’s protected activity and the employer’s adverse action. The NLRB calls this a Wright Line analysis, after Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 495 U.S. 989 (1982).

The Wright Line analysis requires an employee to establish four elements:  (1) their conduct was protected under the NLRA; (2) their employer knew about or suspected the employee’s conduct; (3) the employer “harbored animus” toward the employee because of the conduct; and (4) the employer took an adverse action against the employee because of this animus. Oncor at 22.

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Unsplash [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabaySmartphones, mobile devices with an ever-expanding list of capabilities that make the “phone” part seem like an afterthought, have become a common feature of daily life throughout the U.S. Most smartphones include cameras capable of taking both pictures and video, often with better quality than some of the best digital cameras of a few years ago. This feature has made smartphones an indispensable tool in a wide range of legal matters, from police brutality investigations to employment law cases. The National Labor Relations Board (NLRB) recently found that an employer violated federal law by barring employees from using smartphones to take pictures or make recordings without permission. Whole Foods Market Group, Inc., et al., 363 NLRB No. 87 (Dec. 24, 2015). The policy, while perhaps not originally intended to do so, prevented workers from documenting workplace conditions that violate federal or state employment laws.

The NLRB investigates and adjudicates alleged violations of the National Labor Relations Act (NLRA), the federal statute that protects the right of workers to organize for collective bargaining and other purposes, and to engage in other “concerted activities” aimed at protecting workers’ rights. 29 U.S.C. § 157. In the present case, the NLRB was investigating whether a policy prohibiting smartphone use constituted “interfer[ence] with, restrain[t], or coerc[ion of] employees in the exercise of [their] rights” to engage in concerted activity. 29 U.S.C. § 158.

The use of smartphones to take photographs and record videos in the workplace, and to record conversations among employees or between employees and supervisors, can assist employees and their advocates in building a case under various employment statutes. This might include, for example, an audio recording of a supervisor making derogatory statements about employees of a certain race, sex, or religion, used in support of a claim for discrimination under Title VII of the Civil Rights Act of 1964 or the New Jersey Law Against Discrimination. The NLRA protects these activities, but wiretap statutes present a separate challenge.

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By Jürg Vollmer / maiak.info Reusse (Own work) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY 3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia CommonsThe digital newsroom at the cable and satellite news network Al Jazeera America (AJAM) voted on whether to unionize in late September 2015. A tally of the votes in early October showed that the vote was overwhelmingly in favor of unionizing, with 32 people voting in favor and five voting against. The journalists will become members of the News Guild of New York (NGNY), which has represented print journalists since the 1930s and has recently begun a major effort to support digital journalists who want to organize. Digital journalists at web publications like Salon, Gawker, and Vice have also recently voted to unionize. AJAM opposed the journalists’ unionization vote and has announced its intention to dispute the eligibility of some who participated in the vote.

The National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects the right of employees to organize in order to engage in collective bargaining with the management of their employers. See 29 U.S.C. § 157. The law applies to most employers in the country, defining “employer” as almost any person or organization that employs people, except for the U.S. government, state and local governments, Federal Reserve Banks, and businesses subject to the Railway Labor Act (45 U.S.C. § 151 et seq.). 29 U.S.C. § 152(2). Labor unions, when they act as employers, are also subject to the NLRA. The law created the National Labor Relations Board (NLRB) to enforce its provisions.

AJAM, which is headquartered in Manhattan, launched in 2013 as a competitor to cable news networks like CNN, Fox News, and MSNBC. On September 3, 2015, a majority of employees in the network’s digital newsroom asked the company to voluntarily recognize the NGNY as their representative for collective bargaining purposes. Employees described “a troubling lack of transparency, inconsistent management, and lack of clear redress” from their employer. After several weeks, the company reportedly declined to grant the requested recognition to the union, which led to the employees’ vote.

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3886153891_a4b4a65d87_z.jpgThe National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects the rights of private-sector workers to organize into unions, to engage in collective bargaining, and to take collective action when needed. The law generally provides workers with a cause of action against their employers for violations of the NLRA. Employees of companies that are franchisees of a much larger company, or that are under contract with another company, may find their rights under the NLRA limited because of how the National Labor Relations Board (NLRB) has interpreted the word “employer” in recent years. In August 2015, the NLRB ruled that a company and its subcontractor were “joint employers” of the subcontractor’s employees for purposes of the NLRA. Browning-Ferris Industries of Cal., Inc., et al. (“Browning-Ferris II“), 362 NLRB No. 186 (2015).

The NLRB held in its recent ruling that it had established a general standard for joint employment over 30 years ago, based on the Third Circuit Court of Appeals’ decision in NLRB v. Browning-Ferris Industries of Pa., Inc. (“Browning-Ferris I“), 691 F.2d 1117 (3d Cir. 1982). The central question is whether the two companies “share or codetermine those matters governing the essential terms and conditions of employment.” Id. at 1123. Since 1982, the NLRB has “imposed additional requirements for finding joint-employer status” that, according to the NLRB, have no legal basis or justification. Browning-Ferris II at 1.

The respondents in the present case are a waste management company (WMC) and a staffing company (SC). The WMC operates a recycling facility that receives about 1,200 tons of material per day that must be sorted into waste, recyclable material, and usable commodities. It directly employs about 60 people, most of whom work outside the facility and who already have union representation. The SC, under a contract with the WMC, provides about 240 workers to work in the plant itself. The contract states that the workers are solely the employees of the SC. The union is seeking to represent these workers.
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French_Fries_at_McDonalds_in_Indonesia.jpgMany well-known businesses, particularly restaurant chains, use the franchise model to operate national, or even international, chains of locations. Under this model, the franchise owner enters into agreements with other businesses to operate locations using the franchise’s brand name. These businesses, known as franchisees, must abide by a wide range of requirements under the franchise agreement. Employees of individual franchise locations are considered employees of the franchisee, but multiple complaints and lawsuits in recent years have sought to hold a franchisor liable for acts of a franchisee, based on the theory that the franchise agreement gives the franchisor substantial control over the franchisee’s business. A recent lawsuit against the McDonald’s franchisor asserts that it is liable for race discrimination by a franchisee. Betts, et al v. McDonald’s Corp., et al., No. 4:15-cv-00002, complaint (W.D. Va., Jan. 22, 2015).

The plaintiffs are African-American former employees of a company that operates three McDonald’s restaurants in Clarkesville and South Boston, Virginia. They describe a lengthy sequence of events involving alleged racial and sexual harassment and discrimination by managers employed by the franchisee, culminating in an allegedly overt decision to “reduce the number of African-American employees.” Betts, complaint at 28. All but one of the plaintiffs state that they were terminated on May 12, 2014. The other plaintiff alleges that the company constructively discharged her on July 5, 2014, after “months of racial abuse.” Id. at 32.

The plaintiffs filed suit against the franchisee, several individual managers, and the franchisors. They are asserting seven causes of action, including claims for wrongful termination, constructive discharge, and racial harassment under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and 42 U.S.C. § 1981; and sexual harassment under Title VII.
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ballot-32201_640.pngThe National Labor Relations Board (NLRB) issued a final rule in December 2014 addressing the process by which workers may vote on whether or not to form a union or seek representation by an existing union. 79 Fed. Reg. 74307 (Dec. 15, 2014). The agency, which is charged with enforcing the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., states that the new rule “remove[s] unnecessary barriers to the fair and expeditious resolution of representation questions.” The rule appears to increase unions’ leverage in disputes with businesses over questions of worker representation. Critics call it the “quickie election” rule, and several business organizations are already challenging it in court.

Employees have the right under the NLRA to organize or choose representatives for collective bargaining purposes, or to refrain from this sort of activity. 29 U.S.C. § 157. Employers are prohibited from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of [these] rights.” Id. at § 158(a)(1). If workers and employers cannot reach an agreement regarding the terms of organizing or representation, the NLRB is authorized to resolve the dispute. Id. at § 159. The U.S. Supreme Court held that the NLRB has broad discretion in these types of disputes. 79 Fed. Reg. at 74308, citing NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946), et al.

The NLRA establishes a four-step process for representation disputes: (1) an employee, labor organization, or employer files a petition with the NLRB; (2) the NLRB, or an NLRB regional director, holds a hearing to determine if the petition presents a representation question; (3) an NLRB unit conducts a secret-ballot election; and (4) the NLRB certifies the election results. The statute only provides the basic steps, though, and the NLRB’s experience has shown problems “which cannot be solved without changing current practices and rules.” 79 Fed. Reg. at 74308.
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