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The NLRB recently reversed course again to allow temporary employees provided by a staffing agency to join regular employees in a single bargaining unit without the consent of the employer or the staffing agency. Miller & Anderson, Inc., 364 NLRB No. 39 (2016).

The Board Flip Flops

Historically, unions seeking to organize employees directly employed by an employer (called a “user employer” by the Board) alongside temporary employees provided by a staffing agency (“provided employees”) in a single bargaining unit were required to obtain consent of both the user employer and the staffing agency.

In 2000, however, the Clinton Board overturned that rule to eliminate the consent requirement, allowing employees to form one bargaining unit as long as they shared a community of interest and the employer and the staffing agency were considered “joint employers.” M. B. Sturgis, Inc., 331 NLRB 1298 (2000).  Four years later, the Bush II Board decided Oakwood Care Center, 343 NLRB 659 (2004), and overturned the Board’s decision in Sturgis to again require consent.
Continue Reading NLRB Reverses Course Again: Organizing Temporary Workers Just Got Easier

As we’ve previously blogged, for several years the Obama Administration has been on a calculated campaign to increase unionization in America. Federal agencies, particularly that National Labor Relations Board, have been systematically changing longstanding rules to make it more likely that unions can prevail in election representation campaigns.  We previously blogged about two earlier key components of this campaign: the revised rules from the NLRB approving “quickie” union elections on dramatically shortened time frames; and even earlier efforts to allow unions to designate “micro-units,” increasingly small groups of employees so that unions may narrowly focus their organizing efforts.  Now, in the twilight of the Obama Administration, the final effort in the campaign to increase unionization has just been announced: the Department of Labor has finally issued its long threatened regulations that would dramatically narrow the scope of confidential advice employers can receive when dealing with union organizing campaigns.
Continue Reading The Third Shoe Drops: The Department of Labor Issues Revised “Advice” Regulations

Employers probably are aware of the “quickie” election rules implemented earlier this year by the National Labor Relations Board (“the Board”), but they may not have considered all of the rules’ consequences. With as little as 15 to 20 days to respond to an organizing drive, employers must be prepared to educate employees about the risks and consequences of union representation on very short notice. While many employers have prepared as we described here, some still may not be ready to answer questions from workers and explain the consequences of unionizing the workplace. Responding to workers’ questions about a union without being properly prepared can make a mess of things, even if employers speak the truth.

A recent case from the Sixth Circuit Court of Appeals upheld a Board decision that provides a good reminder that managers must be extremely careful even when speaking the truth to workers during an organizing campaign.

Be Careful What You Say

When a car dealership in Illinois learned that some employees were stirring up interest in unionizing, the plant’s general manager met with workers to discuss unions and answer their questions. The manager answered their questions honestly, but his answers still violated labor law, according to the Board and the Sixth Circuit.Continue Reading What Employers Can and Cannot Say During a Union Organizing Campaign

Depending on your allegiance, “the Play” was one of either the most memorable or the most infamous moments in the history of college football. It happened in the final seconds of 1982’s annual “Big Game” between the Stanford Cardinal and U.C. Berkeley’s Golden Bears. As the fourth quarter was winding down, the Bears had taken a 19-17 lead over the Cardinal, but Stanford quarterback John Elway would have none of it: he overcame a dire 4th-and-17 and drove the Cardinal into field goal range. The field goal was good, giving Stanford a 20-19 lead with just seconds left in the game. As Stanford prepared to kick off, Cal announcer Joe Starkey observed, presciently, that “only a miracle can save the Bears now!”
Continue Reading Northwestern University Football Players Can’t Vote for Union Representation …but it’s not over until it’s over…

As we have previously reported here and here, the National Labor Relations Board’s (“NLRB”) new rules governing union representation elections go into effect today, April 14, 2015. Congress passed a resolution disapproving the new “quickie” or “ambush” rules, but President Obama vetoed it. While lawsuits have been filed in Texas and the District of Columbia challenging the new rules, at this point no court has halted their implementation. Thus, absent late-breaking developments, employers need to be prepared for this brave new world.

Under the new rules, elections will be expedited. Disputes over the unit selected by the union will be resolved in a hearing normally scheduled for no more than eight days after the filing of the petition. Moreover, the employer must identify all of its concerns with the group of employees targeted by the union in a “statement of position” filed the day before the hearing, or those arguments will be waived. Excelsior lists must be provided more quickly, and elections will be held within 10 to 25 days after the filing of the petition.

The bottom line: by design, employers will not have adequate time to prepare a campaign to educate their employees about the issues that will arise if they vote for union representation. Thus, it is imperative that all employers evaluate their risks of union organizing activity, and do what you can now to prepare ahead of time.
Continue Reading Are You Ready to be Ambushed? NLRB’s New “Quickie Election” Rules Become Effective

In recent years the National Labor Relations Board (NLRB) has aggressively sought to emphasize that its reach extends beyond solely unionized workforces.  On March 18, 2015, NLRB General Counsel Richard Griffin released a 30-page report that provides labor lawyers and HR professionals guidance on what the General Counsel contends is – and is not – a lawful employee handbook rule under the National Labor Relations Act (NLRA).  The General Counsel’s report makes clear just how broadly the Board applies its rules, finding fault in a number of common-sense workplace practices regarding confidentiality, criticism of the company, misconduct, communication with the public or the media, conflicts of interest, and a variety of other topics.   Non-union employers may be asking, “Why do I care?”  But the NLRA applies to every employer (at least those engaged in “interstate commerce,” which is almost everyone).

Virtually anyone – individual employees, union organizers or other non-employees – can (and does) file Board complaints, and one of the first things the NLRB’s investigator will ask you for is your policies.  Even if the investigator concludes the charge is without merit, if you are “maintaining” overly broad policies, you may have a fight with the NLRB on your hands – and at the very least you will face a demand to modify the policy and post a notice informing employees of your transgression and your commitment to upholding employee rights to participate in protected, concerted activity.  If you’ve got a union lurking (or campaigning), that’s like free (and forced) advertising, telling employees why they need a union.

We’ve written about the NLRB’s scrutiny of employer rules on social media use and off-duty access, but this report is a “one stop shopping” trip for purposes of NLRA compliance.  The report (available here) provides real-life examples of allegedly unlawful and lawful policies and the reasoning behind the decisions.  And it provides (starting at page 26) what some might view as “model” policies prepared by Wendy’s International LLC and the NLRB pursuant to a Board settlement agreement. You may not like – or decide to adopt – the stance that the General Counsel has taken on these policies, but at least you (sort of) know his position on many handbook policies.
Continue Reading NLRB Says “Mere Maintenance” of Employee Handbook Rules May Violate the NLRA

As anticipated, on December 12, 2014 the NLRB announced that the final “Quickie” Election Rule will be published in the Federal Register on December 15, 2014 and will take effect on April 14, 2015. Among other changes, the rule will shorten the time between the filing of a petition and the election for union representation…

Employers often maintain policies prohibiting off-duty employees from accessing their facilities.  The NLRB has maintained its “Tri-County Medical” rule for nearly 40 years:  an employer’s rule barring off-duty employee access to a facility is valid only if it (1) limits access solely to the interior of the facility, (2) is clearly disseminated to all employees, and (3) applies to off-duty access for all purposes, not just for union activity.  In two recent decisions, the Board interpreted the third prong of Tri-County Medical to significantly limit employers’ ability to prohibit off-duty access by employees.

In St. John’s Health Center, 357 NLRB No. 170 (2011), the Board invalidated a hospital’s policy that permitted employees to come onto hospital property “to attend Health center sponsored events, such as retirement parties and baby showers.”  And in Sodexo, 358 NLRB No. 79 (2012), the Board invalidated a hospital’s rule that permitted off-duty employees access for “hospital related business,” which was defined as “the pursuit of the employee’s normal duties or duties as specifically directed by management.”  The 2012 Board majority disallowed this rule because it gave the hospital “free rein to set the terms of off-duty employee access.”  Former Member Hayes dissented in both decisions, stating that, under the majority view, an employer cannot maintain a valid off-duty access policy if it permits activities “as innocuous as allowing employees to pick up paychecks or complete employment-related paperwork.”Continue Reading NLRB Reverses Sodexo Off Duty Access Decision – a Crack in the Door After Noel Canning…Or Not?