By Nelson Cary and Lauren Sanders on Posted in Independent Contractors,Union OrganizingThe Trump NLRB continues to revisit, and overturn, Obama-era decisions. Late last week, in SuperShuttle DFW, Inc., the NLRB revisited the test for determining when a worker is an independent contractor, and in the process overruled the Obama NLRB’s decision in FedEx Home Delivery. First, however, a little background information. As we have previously discussed,… Continue Reading
By Nelson Cary and Lauren Sanders on Posted in Union OrganizingIn 2016, in Columbia University, the NLRB held that students at private institutions have a right to organize. The 3-1 decision overruled a 2004 decision in Brown University, which found that graduate assistants were not employees and thus did not have a statutory right to unionize. Since the Columbia University decision, the NLRB’s makeup has… Continue Reading
By Nelson Cary and Eric Leist on Posted in Employee Handbooks,NLRB,Union OrganizingLast Wednesday, the NLRB issued a notice and invitation for parties to file briefs to address how the board should treat its previous decision Purple Communications, Inc., 361 N.L.R.B. 1050 (2014). As we explained when Purple Communications was decided, the NLRB held that employees who were given access to their employer’s e-mail system for work-related purposes… Continue Reading
By Nelson Cary and Jesse Meade on Posted in Department of Labor,RulemakingAs previously anticipated on this blog, the Department of Labor (DOL) has formally rescinded the so-called “Persuader Rule.” Under court injunction preventing enforcement since November 2016, the DOL on Wednesday announced that the controversial rule had been withdrawn. In a press release, Deputy Assistant Nathan Mehrens stated: “By rescinding this Rule, the Department stands up… Continue Reading
By Allen Kinzer on Posted in Union Organizing,UnionsAs previously covered by this blog, the U.S. Justice Department has thus far indicted two former UAW officials and two former Chrysler officials in an embezzlement scandal involving the joint UAW-Chrysler training center. Now two classes of Chrysler workers have filed civil lawsuits against both the UAW and Chrysler’s parent, FCA US LLC based on… Continue Reading
By Nelson Cary and Lauren Sanders on Posted in NLRB,Union OrganizingIn the final days of Chairman Philip Miscimarra’s (R) term, we have seen a flurry of decisions that reverse the outcome of cases decided during the Obama Board years. Friday, the last day of Chairman Miscimarra’s term, was no different. In the NLRB majority’s sights this time was the union-friendly Specialty Healthcare decision that made… Continue Reading
By Nelson Cary and Lauren Sanders on Posted in NLRBJust a few months after the NLRB became majority Republican, there are early signs that the agency may be taking a new direction in 2018. Peter Robb, the NLRB’s new General Counsel, sent a memorandum to all Regional Directors, Officers-in-Charge, and Resident Officers in early December. In his memorandum, which followed a practice that prior General… Continue Reading
By Allen Kinzer on Posted in Union OrganizingAfter two days of voting in a secret-ballot NLRB election, production and maintenance workers at the Moraine, Ohio Fuyao glass plant rejected the UAW. The final vote tally was 886 “No” votes to 441 “Yes” votes. This is the third major defeat of the UAW among auto manufacturing and auto supplier companies in as many… Continue Reading
By Allen Kinzer on Posted in Union OrganizingOn October 25, Fuyao Glass America, the UAW and the NLRB reached an election agreement for an NLRB-supervised, secret-ballot election at the Fuyao plant in Moraine, Ohio. Approximately 1,500 Fuyao production and maintenance workers will vote on whether to designate the UAW as their collective bargaining agent. The election is set for Wednesday, November 8… Continue Reading
By Allen Kinzer on Posted in Union OrganizingOn October 16, the UAW filed a petition to represent approximately 1,500 production and maintenance workers at Fuyao’s glass plant in Moraine, Ohio. Fuyao, a Chinese glass company, supplies Ford, GM, Honda and Toyota from the Moraine plant, which was once a GM auto plant. GM closed the auto plant during the 2008 recession, and… Continue Reading
By Allen Kinzer on Posted in Elections,Union OrganizingOn July 16, the UAW and Nissan entered into a Stipulated Election Agreement with the NLRB. Under the Agreement, the UAW agreed that only the production and maintenance workers employed directly by Nissan would be able to vote. The Agreement excludes from the bargaining unit “temporary employees” and “contract employees,” and specifically excludes those workers… Continue Reading
By Allen Kinzer on Posted in Elections,Union OrganizingOn July 10, the UAW filed a NLRB Petition for Election to represent all of the production and maintenance workers at Nissan’s Canton, Mississippi manufacturing facility. The facility has over 6,500 workers. The petition could not only include the production and maintenance workers employed directly by Nissan, but also include contract workers employed by Kelly… Continue Reading
By Nelson Cary on Posted in Union OrganizingLast week, the NLRB issued a widely anticipated decision reversing the existing rule on collective bargaining units including temporary employees. Now, regular employees of the employer and temporary staffing agency employees working for the same employer could be combined in the same bargaining unit without either the employer’s or the staffing agency’s consent. The decision… Continue Reading
By Nelson Cary on Posted in Rulemaking,Union OrganizingThe DOL issued its new persuader rule today. The final rule is largely unchanged from the proposed rule that was originally published in 2011. As expected, the DOL’s new interpretation departs from decades of precedent to expand the definition of “persuader” activities while limiting the definition of “advice” activities. As a result of this new… Continue Reading
By Nelson Cary and George Stevens on Posted in NLRB,Union OrganizingEarlier today, the long-running saga of whether NCAA Division I football players are employees under the NLRA came to an end — at least temporarily. The NLRB unanimously declined to exercise jurisdiction over Northwestern University’s scholarship football players and dismissed the union election petition. In January 2014, Northwestern University’s scholarship football players filed a petition… Continue Reading
By Nelson Cary on Posted in Employee Discipline,NLRB,Union OrganizingConsider this employee’s Facebook post: Bob is such a NASTY MOTHERF___ER don’t know how to talk to people!!!!!! F__k his mother and his entire f__king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!! In this case, “Bob” was the employee’s supervisor. The employee (a banquet server) published the post at least 5-10 minutes after… Continue Reading
By Nelson Cary and Ashley Manfull on Posted in NLRB,Union OrganizingSince 2007, as a result of the NLRB’s Register Guard decision, an employer could lawfully limit the use of its email system by employees for certain non-business related activities, assuming that it applied the rule non-discriminatorily. On December 10, 2014, in a 3-2 decision, the NLRB reversed the old rule established in Register Guard and… Continue Reading
By Allen Kinzer on Posted in Union OrganizingIt’s certainly unconventional for the U.S. labor movement, but the UAW scored a victory at VW in Chattanooga. VW has agreed to meet with the UAW bi-weekly to discuss work issues, after an accounting firm certified that the UAW represented over 45% of the workers in Chattanooga. The UAW, however, is not the exclusive representative… Continue Reading
By Nelson Cary on Posted in Independent ContractorsI recently wrote about how the NLRB has made it easier to establish employee status and correspondingly more difficult to establish independent contractor status. In a recent publication, two of my partners outline some pros and cons of using independent contractors. While they focus specifically on the oil and gas industry, their observations are readily applicable to… Continue Reading
By Nelson Cary on Posted in NLRB,Union OrganizingA recent decision from the NLRB is a good reminder that employer statements during union organizing activity have potentially wide-ranging effects. This latest case involves Purple Communications, a provider of sign language interpreters who facilitate real-time, two-way phone communication between hearing-impaired and hearing individuals. The union filed objections after suffering narrow election defeats at two… Continue Reading
By Nelson Cary on Posted in NLRB,Union OrganizingEmployees are permitted to join unions. Independent contractors are not. Thus, whether a particular working relationship involves an “employee” or an “independent contractor” is extremely important. Recently, the NLRB has made it easier to establish employee status and correspondingly more difficult to establish independent contractor status. The case involved delivery drivers for Federal Express Home… Continue Reading
By Nelson Cary on Posted in Union Organizing,UnionsIn my labor law practice, I’m often asked: “Why do employees support unions?” My answer to this question usually comes from what I have gleaned from my years of experience providing legal advice to management during union organizing campaigns. It isn’t often that you have the opportunity to hear directly and in detail about the reasons an employee… Continue Reading
By Nelson Cary on Posted in Union OrganizingThe NLRB makes it hard to protect a company’s investment, which can be substantial, in its brand. A recent decision demonstrates the perils that employers can encounter for their brand during a labor dispute. The case involved the national sandwich franchise, Jimmy John’s, and one of its franchisees in the Minneapolis-St. Paul area. The franchisee’s workers began… Continue Reading
By Nelson Cary on Posted in Union OrganizingBy Susan Connelly of PTI Labor Research, Guest Blogger* PTI Labor Research analyzed union representation petitions that were filed within the first half of the year. States with the most petitions filed (pdf) included: New York, California, Illinois, Pennsylvania and New Jersey. Each of these top five states are “Non-Right to Work,” where it is legal to… Continue Reading
