Articles Posted in NLRB Decisions

by

The 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.

Continue reading

by

The 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.
Continue reading

by

Many 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.
Continue reading

by

The 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.
Continue reading

by

The National Labor Relations Board (NLRB) recently affirmed a prior ruling holding that it has jurisdiction to enforce the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. in a dispute involving a Michigan casino operated by an Indian tribe. Soaring Eagle Casino and Resort, et al, No. 07-CA-053586. An administrative law judge (ALJ) ruled that the casino violated a former employee’s rights under the NLRA. The tribe, the Saginaw Chippewa Tribal Nation, has denied that the NLRB has jurisdiction over it because of tribal sovereignty. The U.S. government recognizes hundreds of Indian tribes as “domestic dependent nations,” with a degree of sovereignty over their own members. Tribal law is incredibly complicated, but the question presented in this case is relatively simple: does the NLRA, a federal statute, apply to a business owned and operated by an Indian tribe? At least one federal circuit court of appeals has held that it does, and courts have held that other statutes are binding on tribes.

A former employee of the Soaring Eagle Casino filed a complaint with the NLRB in 2011, claiming that she was fired for soliciting support among her co-workers for a union. An ALJ ruled in the employee’s favor in March 2012, dismissing the tribe’s argument that the NLRA should not apply to activities at the casino. The casino is located on land that belongs to the tribe under treaties ratified in 1855 and 1864, but the complainant argued that because the casino is not “an essential Government operation of the Tribe,” it should be subject to the NLRA. Soaring Eagle, ALJ Decision at 7 (March 26, 2012).

The ALJ noted that statutes of “general application” may apply to individual tribal members, Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99 (1960), and that the NLRB has found the NLRA to be such a statute. He concluded that the casino is engaged in commerce as defined by the NLRA. 29 U.S.C. §§ 152(2), (6)-(7). Prior cases have reached similar decisions. The D.C. Circuit Court of Appeals held that the NLRA applies to a casino operated on tribal land in San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007). Another court held that the Occupational Health and Safety Act applies to commercial activities on tribal land. Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985).
Continue reading

by

Employees of numerous major fast-food restaurant chains have mounted campaigns to improve their working conditions, including higher wages and fewer unpaid hours. A major hurdle for these campaigns has been the franchise model used by many chain restaurants, in which one company, the “franchisor,” owns the restaurant’s brand, logo, menu, and other intellectual property, while other companies, “franchisees,” operate the actual restaurants. This has created what has been called the “fissured workplace,” since it often limits any legal claims employees can make to the franchisee that operates the restaurant where they work. The General Counsel of the National Labor Relations Board (NLRB), however, recently announced that it will treat McDonald’s USA, LLC, the franchisor of McDonald’s restaurants, and its franchisees as “joint employers.” This means that employees may file complaints against both the individual franchisee that employs them and the franchisor.

In a franchise system, a franchisor enters into agreements with franchisees to operate one or more business locations. The franchise agreement includes various requirements that the franchisees must follow related to branding, marketing, and business operations. Employment issues are often left to the individual franchisees, at least according to the written agreements. Since workers at individual business locations are employed by a franchisee, they cannot assert claims directly against the franchisor. A major criticism of this system is that the terms of franchise agreements have expanded in scope, to the point that they often have direct effects on employment matters. The franchisors, however, remain shielded from liability to the franchisees’ employees.

The NLRB’s Office of the General Counsel (OGC) decided in July 2014 to allow workers to file complaints against both their employer and the national franchisor. At the time of this announcement, the NLRB had received 181 complaints against McDonald’s franchisees since November 2012. While 64 complaints were still under investigation, it had already found 43 of them to have merit. If the NLRB is unable to settle the meritorious complaints, it may file lawsuits naming the individual franchisees and the franchisor as defendants.
Continue reading

by

Adjunct professors, generally defined as non-tenure-track and part-time, are becoming increasingly common at two- and four-year colleges and universities around the country. As their numbers grow, however, they are struggling with a lack of job security, low pay, and few benefits. Some of them are successfully demanding better treatment, and several unions are offering their support and assistance. They face some difficult legal obstacles, however, including Supreme Court precedent that limits the applicability of the National Labor Relations Act (NLRA) and claims by some schools that more recent Supreme Court decisions allow them to prevent their adjunct professors from holding union elections.

An article published by Al-Jazeera America in July 2014 describes the experiences of several adjunct professors and describes how faculty employment has changed in recent years. Approximately 30 percent of the 1.8 million faculty members employed by U.S. colleges and universities hold tenure-track positions, meaning that their position offers them the possibility of promotion to “full” professor with a very high degree of job security. Only 24 percent of faculty members actually have tenure, a decrease from about 45 percent in the 1970s.
Continue reading

by

The National Labor Relations Board (NLRB) took two recent actions affecting union representation. In early February, it issued proposed rule changes for representation cases, when employees or unions seek a vote to determine whether employees want to form or join a union for collective bargaining. Existing rules have faced criticism for allowing excessive delay and other inefficiencies. In late March, the NLRB issued a ruling in a dispute between an organization representing college football players and Northwestern University. It found that scholarship players are “employees” within the meaning of the National Labor Relations Act (NLRA), and that they are entitled to vote on union representation.

On February 6, 2014, the NLRB published proposed changes to representation-case procedures. 79 F.R. 7317. The new rules, according to the NLRB, would “remove unnecessary barriers to the fair and expeditious resolution” of petitions for union representation. This would include simplifying and standardizing case procedures, and improving the transparency of the process. The current rules, found at 29 C.F.R. Parts 101-103, have been criticized for allowing a substantial amount of time to pass between a petition by non-union workers and a vote on union representation, allowing employers to pressure employees to vote against the union. The new rules are similar to a proposal first made in June 2011. A district court struck down the rules that resulted from that proposal, finding that the NLRB enacted them without the required quorum. Chamber of Commerce v. NLRB, 879 F.Supp.2d 18 (D.D.C. 2012).

The College Athletes Players Association (CAPA), a labor organization, petitioned the NLRB on behalf of football players receiving grant-in-aid scholarships from Northwestern University, seeking a ruling that the players are “employees” within the meaning of the NLRA. Northwestern argued that the players are not employees, comparing them instead to graduate student assistants who were ruled not to be employees in Brown University, 342 NLRB 483 (2004). The NLRB’s Region 13 Director ruled that the players are employees, and directed that an election take place. Northwestern University, No. 13-RC-131359, decision (NLRB, Mar. 26, 2014).
Continue reading

by

The National Labor Relations Act (NLRA) protects employees from retaliation from their employers for union organizing and related “concerted activities.” Courts are constantly reviewing the question of what constitutes protected concerted activity. The growth of social media in recent years has led to numerous disputes over the extent of NLRA protections for online statements and activity. Two recent decisions from the National Labor Relations Board (NLRB) offers the possibility of clarity about the line beyond which the NLRA does not apply. Both cases involved activity on Facebook involving harsh language directed at one or more supervisors, including words that generally get films an “R” rating. The NLRB’s two decisions make an important distinction, seeming to draw the line based on whether the employee’s activity harms the employer.

Two rules have emerged for employees regarding social media posts. The first rule is that statements or discussions via social media, when directed to other employees or intended to spotlight an employment issue, are generally considered to be concerted activity protected by the NLRA. The unsettled question for social media is how far is too far before a statement or discussion exceeds the scope of the NLRA’s protection. The second rule is that employers will continue to push this still-hazy limit, so employees should be prepared and know their rights.

In Pier Sixty, No. 02-CA-068612 (NLRB, Apr. 18, 2013), the NLRB found that an employee’s colorful statements on Facebook were protected by the NLRA. An employee at a catering company reportedly became frustrated during the course of negotiations over union representation. While the employee was working an event, he felt that a supervisor was harassing him. He stepped outside the building and posted an update to his Facebook calling the supervisor a “NASTY M———-R” and a “LOSER,” followed by a call to vote yes on the union proposal. The employee was fired soon afterwards. The NLRB held that the employee’s statements were protected, the generous use of swear words notwithstanding, because they were directly related to ongoing union organizing. It ordered the employee’s reinstatement with back pay.
Continue reading

by

Federal immigration law prohibits businesses from employing individuals who do not have authorization to work in the U.S., either because they have certain types of temporary visas or because they lack legal immigration status altogether. Courts have wrestled with the question of how much protection federal and state labor laws offer to undocumented immigrants. The U.S. Supreme Court ruled that undocumented immigrants may not recover damages for violations of the National Labor Relations Act (NLRA). Recent appellate court decisions, however, have left the possibility open that relief may be available under state labor and employment laws and the federal Fair Labor Standards Act (FLSA).

Under the NLRA, the National Labor Relations Board (NLRB) enforces laws protecting the rights of employees to engage in activities related to union organizing. This includes filing lawsuits seeking back pay and other damages on behalf of employees. The U.S. Supreme Court ruled in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), that undocumented immigrants may not recover damages under the NLRA. It held that the Immigration Control and Reform Act of 1986 (IRCA), which established the current system of immigrant work authorization, prohibited the employment of the worker in question and therefore preempted his NLRA claims. This preclusion only affected the immigrant employee. The NLRB could still pursue penalties against the employer for NLRA violations affecting the employee.

Appellate and district courts have generally followed Hoffman‘s ruling with regard to IRCA’s preemption of state and local employment laws. A federal district court in Pennsylvania cited preemption under IRCA in striking down a city ordinance placing restrictions on employment and housing for undocumented immigrants. Lozano v. City of Hazelton, 496 F.Supp.2d 477, 518-19 (M.D. Pa. 2007). In a case involving an NLRB ruling issued before Hoffman, the Second Circuit Court of Appeals refused to enforce the ruling after Hoffman. NLRB v. Domsey Trading Corp., 636 F.3d 33 (2nd Cir. 2011). Federal labor laws separate from the NLRA have not received much direct scrutiny from courts on the question of preemption, however, until recently.
Continue reading

Contact Information
New Jersey Office
5 Becker Farm Rd, #410
Roseland, NJ 07068
Tel: (973) 781-1204
New York Office
535 5th Ave 4th Floor
New York, NY 10017
Tel: (646) 867-7997
This website constitutes an ADVERTISEMENT. Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you believe this advertisement is inaccurate or misleading, you may report same to the Committee on Attorney Advertising, Hughes Justice Complex, CN 037, Trenton, New Jersey 08625. For the comparison standards employed by Super Lawyers, please visit superlawyers.com. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2024, Resnick Law Group
JUSTIA Law Firm Blog Design