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Total Articles: 174

What You Need to Know About the NLRB’s Proposed Rule Blocking Student Organizing

The seemingly never-ending debate over private sector college- and university-student employment status continues. On Friday, September 20, the National Labor Relations Board (NLRB) announced its intent to propose a rule addressing the definition of “employee” under the National Labor Relations Act as it pertains to undergraduate and graduate teaching and research assistants. True to its word, the proposed rule was published this Monday in the Federal Register. The following addresses the essential points for college and university officials regarding this proposed rule.

NLRB Proposed Rule Would Deny Grad Students Right to Unionize

The National Labor Relations Board (NLRB) has published a Notice of Proposed Rule Making (NPRM) in the federal register that would exempt undergraduate and graduate students who perform services for financial compensation in connection with their studies from the NLRB's reach.

NLRB Issues Proposed Rule to Clarify Status of Private University and College Students Working in Connection with Their Studies

On September 20, 2019, the National Labor Relations Board (Board) issued a proposed rule that would exclude from the National Labor Relations Act (Act) undergraduate and graduate students at private colleges and universities who perform services in connection with their studies. Under the proposal, these students would no longer be able to join or form a labor union or engage in collective bargaining.

Grad Students Cannot Unionize Under Proposed NLRB Rule

The National Labor Relations Board took the latest step in the long-simmering debate over whether college teaching and research assistants could unionize when it released a proposed rule on Friday that would once again block such efforts. Declaring that university students should not qualify as employees under federal labor law, the Board took the first step to reverse a 2016 ruling by the Obama-era NLRB that opened the door for certain graduate and undergraduate students to form unions. The proposed rule still has a way to go before it is finalized and adopted, but you will want to familiarize yourself with this development to the extent it may soon upend the current state of the law and your campus practices.

Access to Private Property: Labor Board Rules Girl Scout Cookies and Union Protesters are Different

A nonemployee’s solicitation for charitable or civic causes on an employer’s property is not the equivalent of a nonemployee union representative’s engaging in a protest soliciting customers to boycott an employer or in union organizing on the property, the National Labor Relations Board (NLRB) has held. Kroger Limited Partnership, 368 NLRB No. 64 (Sept. 6, 2019).

Labor Board Further Tightens Union Access To Employer Property

In yet another ruling that levels the labor relations playing field, the National Labor Relations Board ruled on Friday that employers could rightfully eject outside union representatives soliciting petition signatures from a shared shopping center parking area. When read in conjunction with a June decision conferring greater rights to limit on-premises union activity by abolishing the “public space” exception, and a more recent ruling extending greater latitude when it comes to excluding contractor employees, the Board has significantly restricted union access to private employer property. These rulings have supplied employers with powerful tools to combat prohibited solicitation on their premises. What do you need to know about this latest decision?

Foreign Manufacturer + Union Campaign = Netflix Documentary... and Some Valuable Lessons for Employers

A few years ago, a major Chinese manufacturer, Fuyao, opened the world’s largest windshield-making plant in Ohio. Fuyao renovated an old General Motors facility, invested millions in state-of-the-art machinery and hired several thousand employees. The start-up experienced manufacturing and cultural challenges, eventually triggering a campaign to unionize the plant.

NLRB Further Expands Private Property Rights by Limiting Non-Employee Handbilling

Executive Summary: In a 3-1 decision, the National Labor Relations Board (“NLRB” or the “Board”) ruled that a property owner may exclude from its property off-duty contractor employees engaged in Section 7 activity unless (1) those employees work both regularly and exclusively on the property and (2) the property owner fails to show that the contractor employees have one or more reasonable nontrespassory alternative means to communicate their message. See Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, Case 16-CA-193636 (August 23, 2019). In reaching this decision, the Board explicitly overruled New York New York Hotel & Casino and other cases inconsistent with this holding.

NLRB Reverses Precedent to Permit Property Owners to Prohibit Off-Duty Access for Section 7 Activity

On August 23, 2019, the National Labor Relations Board reversed precedent and rebalanced the rights of property owners versus the Section 7 rights of employees in a labor dispute. In Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019), the Board held that a property owner not involved in an underlying labor dispute may prohibit leafletting and similar protected activity by off-duty employees of a licensee or contractor performing work on the property owner’s premises.

Labor Board Corrects ‘Unjustified Asymmetry’ in Anticipatory Withdrawal of Union Recognition Doctrine

Since 2001, an employer presented with evidence that at least 50 percent of its unionized bargaining unit no longer wanted to be represented by the union could anticipatorily withdraw recognition from that union. The union, however, could rebut that evidence by showing that, subsequent to the employer’s pronouncement and prior to the actual withdrawal, it regained majority status. Levitz Furniture, 333 NLRB 717 (2001). Now, in Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019), the National Labor Relations Board (NLRB) has overturned Levitz’s “last in time” rule, under which the union’s evidence controlled the outcome because it postdated the employer’s evidence. Instead, the NLRB created a procedure by which employees’ wishes will be determined by a secret-ballot election.

Union’s Goal: 100,000 New Members by 2024

UNITE HERE hopes to increase its membership by one-third, to 400,000 members, by 2024, according to Bloomberg Law.

NLRB Eases Path for Employers to Oust Unions

The National Labor Relations Board (NLRB) made it easier for employers to oust unions when a majority of workers no longer support the union. The NLRB’s decision marks a significant pro-employer shift that lowers a company’s risk of inadvertent unfair labor practice.

eLABORate: NLRB Rules Employers Can Bar Union Solicitation by Nonemployees on Company Property Open to the Public

In the latest in a series of business-friendly decisions, the National Labor Relations Board (NLRB) has ruled that employers may legally bar union solicitation by nonemployees on company property that is otherwise open to the public. [UPMC N.L.R.B., 368 N.L.R.B. No. 2, Opinion 6/14/19.] The NLRB’s 3-1 ruling expressly overturns a nearly 40 year old Board precedent, referred to as the “public space exception”. Under that now reversed precedent, nonemployee union organizers could not be denied access by employers to cafeterias and restaurants open to the public if the organizers used the facility in a manner consistent with its intended use and were not disruptive.

Labor Board Grants Employers Greater Rights To Limit Union Activity On Premises

The National Labor Relations Board issued a decision on Friday reversing 37 years of precedent and thereby granting employers greater rights to limit union activity on their premises. Under the “public space” exception, employers had to allow nonemployee union representatives access to the public areas of their property, including restaurant dining areas and cafeterias, to engage in promotional or organizational activity. But in the June 14 UPMC decision, the Board abolished that exception and held that employers no longer have to allow nonemployee union representatives access to public areas, unless the union has no other reasonable means of communicating with employees or the employer discriminates against the union by permitting similar groups access.

VW Plant Workers in Tennessee Vote Against Unionizing

Workers at the Volkswagen plant in Chattanooga, Tennessee voted against joining the United Auto Workers during a closely watched unionization election last week. It was the second time since 2014 that the UAW lost an election to represent factory employees. The plant manufactures Volkswagen's Passat and Atlas models.

Labor Board to Revisit Right of Graduate Students to Unionize

The National Labor Relations Board (NLRB) has announced that it will propose rules on the standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 153(3)), with the right to form unions and engage in collective bargaining.

NLRB Rule Review and Revised Policy May Stifle Unions' Organizing Activity

The National Labor Relations Board (NLRB) signaled possible actions last week that may make it more difficult for unions to organize and communicate with workers and to fight decertification efforts.

Do Unions Have A Place In The Gig Economy?

When considering the place of unions in the gig economy, many jump to the conclusion that the National Labor Relations Act does not apply because gig workers are usually independent contractors. While it is true that the NLRA does not apply to independent contractors, businesses should not discount the ability of gig workers to find ways to bargain for certain working conditions and get similar protections.

Boeing Workers in South Carolina Vote to Join Union

A group of employees at Boeing's South Carolina plant have voted to unionize in a manner that may have implications for other employers. Flight line mechanics voted 104 to 65 Thursday to join the International Association of Machinists (IAM) union as a "micro-unit," representing only a small portion of the plant's nearly 7,000 employees. Boeing management expressed disappointment with the result, and said it will try to get the vote thrown out.

Burger Joint Becomes First Unionized Fast-Food Restaurant

For the first time in the US, a fast-food restaurant has been unionized through a National Labor Relations Board (NLRB) supervised election. Employees at Burgerville in Portland, Oregon, recently voted 18-4 for the Burgerville Worker's Union (BVWU) to be their exclusive bargaining representative. The new union is affiliated with the Industrial Workers of the World.

Fast Food Restaurant Workers at Burgerville Unionized

Executive Summary: On April 23, 2018, employees at a Portland, Oregon location of the fast food restaurant chain Burgerville voted to unionize. After a nearly two-year campaign, the Industrial Workers of the World Portland Chapter, a.k.a the Burgerville Workers Union (the “Union”), convinced 18 of the 25-member unit to vote “yes” – making it “the first formally recognized fast food union in the country” according to the Union’s announcement on social media. A spokesperson for Burgerville indicated that the company intends to recognize the Union and begin the collective-bargaining process. Following the recent win, employees at a second Burgerville restaurant in Portland followed suit and filed a petition to vote on union representation.

Micro-Units Are Dead: Labor Board Returns To Traditional “Community Of Interest” Factors For Union Elections

One day after overturning the Obama-era’s joint-employer standard and in the waning days of Philip Miscimarra’s Chairmanship, the National Labor Relations Board struck down the pro-union use of micro-units, a tool used to more easily organize a workplace. In a case in which Fisher Phillips partners represented the employer, the Board overruled the 2011 case of Specialty Healthcare & Rehabilitation Center of Mobile in a 3-2 decision, reinstating the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases (PCC Structurals, Inc.).

What Behavioral Psychology Has to Do With Union Avoidance: Reflections From a Labor Lawyer

As a traditional labor lawyer, I spend a great deal of time traveling the country to assist clients, and I spend a lot of that time in airports and on airplanes reading. On a recent trip, I read The Undoing Project: A Friendship That Changed Our Minds by Michael Lewis, which discusses the research two psychologists conducted on the psychology of decision-making. The research, which concluded that people often err when making decisions despite access to information that should help them, got me thinking about how employees act in the face of union campaigns.

Seattle Ordinance Allowing Ride-Sharing Drivers to Unionize Temporarily Blocked by Ninth Circuit

The Ninth Circuit Court of Appeals has temporarily blocked enforcement of the City of Seattle’s Ordinance 124968, which grants certain collective bargaining rights to independent contractors who drive for ride-sharing companies like Uber.

Grad-Student Unions One Year after Columbia University: More to Come or a Thing of the Past?

In August 2016, the National Labor Relations Board reversed longstanding precedent and ruled that students “who have a common-law employment relationship with their university are statutory employees under the [National Labor Relations] Act.” Columbia University, 364 NLRB No. 90 (Aug. 23, 2016). A year later, with President Donald Trump poised to seat a Republican-majority NLRB and with Philip Miscimarra, the author of the dissent in Columbia, now the NLRB Chairman, many expect the NLRB will reverse Columbia and hold that student assistants are not employees with a right to unionize under the NLRA.

Court Ruling Means We’re One Step Closer To A Unionized Gig Economy

The battle over organizing workers in the on-demand economy continues to heat up. Yesterday, a federal court in Washington dismissed a lawsuit filed by the U.S. Chamber of Commerce and others challenging the City of Seattle’s landmark ordinance that essentially authorizes ride-hailing drivers to unionize. However, the law remains on hold as an injunction remains in place pending the outcome of related litigation.

In Fastest Elections, Union Victory Rate Soars

Unions fare better in the quickest elections under the National Labor Relations Board’s April 2015 “quickie” election rules, according to a Bloomberg BNA report. Unions have continued to win elections about 67 percent of the time overall since the implementation of the rules, according to the report. However, two years after the rules went into effect, in the fastest elections (i.e., those with less than two weeks between petition and the vote), the union “win rate” jumps to a staggering 82 percent.

Dues Checkoffs May Be Valid in Wisconsin Despite Federal Court Ruling

A Wisconsin federal court has invalidated a key provision in Wisconsin’s Right to Work law that gave employees the right to cancel deduction of union dues from their paychecks.

NLRB Asserts Jurisdiction Over Non-Teaching Employees of a Private Religious University

Executive Summary: In an April 6, 2017, decision, Saint Xavier University, 365 NLRB No. 64 (2017), the National Labor Relations Board (NLRB) determined that it was appropriate to exercise jurisdiction over a petitioned-for unit of housekeeping employees at a religious university, since they were non-teaching employees, and since their “actual duties and responsibilities [did not] require them to perform a specific role in fulfilling the religious mission of the institution.”

Unions: Top Ten Marketing Pitches

Unionization rates in the private sector have reached new lows in the Carolinas and beyond. (see The Carolinas: Least Unionized states in the Nation). More than 93% of the private sector employees have expressly or implicitly declined unionization. In effect, they are not “buying” the services being promised by unions. Some employees realize that unions seldom can guarantee that any of those promises will come true, while others are skeptical about the unions’ motives. Rather than crafty promises, the actual sources of competitive pay, safe workplaces, and similar benefits are through progressive employers, satisfied customers, quality products or services, and statutory protections.

Seattle’s Attempt to Unionize On-Demand Economy Dealt First Blow

Not two weeks ago, we discussed several active court cases seeking to challenge the City of Seattle’s first-of-its-kind ordinance aimed at unionizing ride-sharing drivers, pointing out that the battle was about to reach a critical point. We’re happy to report that a federal court struck a blow against the ordinance yesterday and blocked it from proceeding for the time being. While this is just the first step in what is sure to be a long and complex fight, and it is only temporary in nature, it is incredibly positive news and a step in the right direction.

House Bill Spotlights Paid Union Activities By Federal Employees

A House bill would require federal agencies to report annually on the amount of “official time” (i.e., taxpayer-paid time) that federal employees spend on union activities rather than working at their regular job duties. H.R. 1293 (the “Official Time Reform Act of 2017”) was introduced by Rep. David Ross (R-Fla.) on March 1, 2017, and reported out of the House Committee on Oversight and Government Reform on March 8.

Congratulations to Boeing's Employees and to South Carolina!

On February 15, 2017, the vast majority of Boeing’s employees in North Charleston and Ladson, South Carolina, rejected the International Association of Machinists’ attempt to unionize them. Of the 2,828 Boeing employees who voted, 2,097 of them -- 74% -- voted against unionization.

Voter List Delivered Directly to Union From Employer or Election Set Aside, NLRB Decides

Service of the voter list on the union by the employer is mandatory and the failure to serve it will result in setting aside an employer’s election victory when a timely objection is filed by the union, the National Labor Relations Board has decided. URS Federal Services, Inc., 365 NLRB No. 1 (Dec. 8, 2016). The NLRB reversed the Acting Regional Director’s decision overruling the union’s objection.

DOL's 'Persuader Activity' Rule Stopped

A new rule from the US Department of Labor (DOL) that would have expanded an employer's obligation under the Labor Management Reporting and Disclosure Act (LMRDA) to report persuader activity - activity engaged in to directly or indirectly persuade employees concerning their rights to organize and collectively bargain - appears to be on its last legs.

Court Grants Permanent Injunction, Blocking Labor Department’s New Persuader Rule

The U.S. District Court for the Northern District of Texas, Lubbock Division, has converted its nationwide preliminary injunction, issued on June 27, 2016, against the U.S. Department of Labor’s “persuader” rule into a nationwide permanent injunction. National Federation of Independent Business, et al. v. Perez, et al., No. 5:16-CV-00066-C (N.D. Tex. Nov. 16, 2016). The court found the rule “unlawful.”

Court Permanently Blocks DOL's Persuader Rule

To the relief of many employers that rely on third parties to provide labor advice and services, a Texas federal court has permanently blocked a rule that would have required them to make certain disclosures about their consultants to the Department of Labor. In National Federation of Independent Business v. Perez, the U.S. District Court for the Northern District of Texas held that the DOL's "persuader" rule "should be held unlawful and set aside," and that the temporary injunction the court issued in June to prevent the DOL from enforcing the rule be made permanent. As a result of this permanent injunction, employers—at least for the foreseeable future—do not need to comply with the consultant disclosure requirements.

Federal Court Permanently Enjoins the Persuader Rule

On November 16, 2016, the U.S. District Court for the Northern District of Texas (Lubbock Division) converted its injunction preventing implementation of the U.S. Department of Labor’s revised persuader rule on a national basis from preliminary to permanent. According to Judge Sam R. Cummings’s order, the court converted the preliminary injunction to a permanent one for the same reasons “stated in the Court’s Preliminary Injunction Order entered June 27, 2016” in National Federation of Independent Business et al. v. Perez, et al. Judge Cummings found the DOL’s revised persuader rule to be “not merely fuzzy around the edges. Rather the New Rule is defective to its core.”

Employers Claim Crucial Victory In Persuader Battle

Today a federal court judge delivered what could be the final nail in the coffin for the controversial persuader rule, which sought to force attorneys and their clients to report in open records the details of their confidential attorney-client relationships, and which would have complicated employers’ efforts to seek legal counsel in opposing and dealing with unions. District Court Judge Sam R. Cummings, sitting in the Northern District of Texas, today granted a permanent injunction that will block the rule from going into effect on a nationwide basis.

union kNOw – November 2016

With a few keystrokes, is connecting like-minded employees of the same retail employers in a given area who are interested in forming a union. For an employee, the entire process may take no more than five minutes.

NLRB Grad Student Decision Extends Beyond Unionization

In a landmark case, the National Labor Relations Board (NLRB) recently ruled that Columbia University teaching and research assistants (and those at other private colleges and universities) are employees and can unionize. Last month’s long-awaited ruling opens the doors for graduate and undergraduate students to unionize and bargain collectively concerning wages, hours and working conditions. Additionally, it expands federal employment protections to students at all private colleges and universities, regardless of whether or not they unionize. Every affected student is now protected from retaliation when they engage in group activity or discussion related to wages or working conditions.

NLRB Holds Student Assistants Who Have a Common-Law Employment Relationship With a Private University Are "Employees" Under The National Labor Relations Act

Executive Summary: In an August 23, 2016, decision, Trustees of Columbia University, 364 NLRB No. 90 (2016), the National Labor Relations Board (NLRB) overruled existing precedent and held that student assistants, who have a common-law employment relationship with a private university, are statutory employees under the National Labor Relations Act (NLRA) and are entitled to its protections.

Student Assistants Win Right to Unionize at Private Colleges and Universities

Reversing longstanding precedent, the National Labor Relations Board has ruled that students “who have a common-law employment relationship with their university are statutory employees under the [National Labor Relations] Act.” Columbia University, 364 NLRB No. 90 (Aug. 23, 2016).

NLRB Rules that Student Assistants Can Unionize; Debate May Now Shift to Whether They Should

In a sweeping decision issued on August 23, 2016, the National Labor Relations Board reversed its 2004 holding in Brown University1 that graduate students are not employees under the National Labor Relations Act. The Board ruled that graduate and undergraduate student assistants at Columbia University are employees who have the right to unionize, including those assistants engaged in research funded by external grants. The broadly worded decision has far-reaching ramifications for private sector universities because of its apparently intended wide-spread applicability.

NLRB Holds That Grad and Undergrad Teaching Assistants at Columbia University Are “Employees”

In a 3-1 decision, the National Labor Relations Board (NLRB) held that “student assistants who perform work at the direction of their university for which they are compensated are statutory employees.” In The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia–GWC, UAW, 364 NLRB No. 90, the NLRB also rejected the argument that imposition of collective bargaining on such students would improperly intrude into the educational process and expressly overruled Brown University, 342 NLRB 483 (2004). Chairman Pearce, Member Hirozawa, and Member McFerran comprised the majority, and Member Miscimarra wrote a strenuous dissent.

NLRB Rules Student Employees Can Unionize

In a game-changing decision reversing clear legal precedent, the National Labor Relations Board (NLRB) ruled by a 3-1 margin today that university students who work as teaching and research assistants at private universities are “statutory employees” under the National Labor Relations Act (NLRA) and can organize to form unions (Columbia University). The ruling applies to both graduate and undergraduate students who perform work, at the direction of the university, for which they are compensated. It will require private universities to immediately conform their practices to adjust to this new era of labor law.

One Step Closer To A Unionized Gig Economy

Yesterday, a federal court judge in Seattle gave a boost to those who want to unionize the gig economy. The August 9 ruling could end up having widespread implications, although unionization efforts for gig workers still have numerous hurdles to overcome before they become law.

NLRB Reinstates Liberal Standard For Unionizing Temp Workers

In today’s 3-1 decision, the National Labor Relations Board (NLRB) resurrected a union-friendly standard making it easier for unions to combine jointly employed temporary workers with an employer’s existing workforce to form a union. For over a decade, employers had enjoyed a standard which permitted them to block such a combined pairing by refusing to provide consent. As of today, however, that standard has been scrapped (Miller & Anderson, Inc.).

eLABORate: Texas Judge Blocks DOL's 'Persuader' Rule

A Texas federal judge entered a nationwide injunction yesterday, barring the U.S. Department of Labor ("DOL") from enforcing its "persuader" rule. According to U.S. District Judge Sam R. Cummings, the persuader rule threatens employers' rights to secure legal advice about union organization.

NLRB General Counsel Orders Complaints in All Withdrawal-of-Recognition Cases

In yet another assault on long-established labor law precedent, on May 9, 2016, National Labor Relations Board (NLRB) General Counsel Richard Griffin ordered the issuance of NLRB complaints in every case in which an employer withdraws recognition from a union without the union first being decertified by the results of a secret ballot election. In General Counsel (GC) Memo 16-03, Griffin instructs the NLRB's Regional Directors, Officers-in-Charge, and Resident Officers to issue a complaint in any unfair labor practice case where an employer withdraws recognition from a union, even based on overwhelming "objective evidence" of loss of majority status, without being certified by the results of an NLRB-conducted secret-ballot election.

Religious Affiliation Is Not Enough – The Ever-Expanding Reach of the National Labor Relations Act

The National Labor Relations Act has been enjoying a resurgence in attention and application in recent years. From last year’s thirty page memorandum from the National Labor Relations Board’s Office of the General Counsel regarding “Employer Rules” reminding all employers – unionized or not – that handbooks may not contain any language that may have a chilling effect on employees’ rights under Section 7 of the National Labor Relations Act, to President Obama’s comment that Tom Brady’s “Deflategate” case was an example of why unions are still important, the expansive reach of the NLRA has been at the forefront of employment law.

Labor Board Will Decide Organizing Rights of Non-Teaching Employees at Religious Colleges, Universities

The National Labor Relations Board is set to decide if the same test used to determine whether teaching employees of a religious school are subject to the Board’s jurisdiction should be extended to non-teaching employees. Islamic Saudi Academy, Case 05-RC-080474 (May 12, 2016).

NLRB to Decide Organizing Rights of Non-Teaching Employees at Religious Colleges, Universities

The National Labor Relations Board is set to decide if the same test used to determine whether teaching employees of a religious school are subject to the Board’s jurisdiction should be extended to non-teaching employees. Islamic Saudi Academy, Case 05-RC-080474 (May 12, 2016).

Congress Seeks to Block ‘Persuader’ Rule

Republicans in the House of Representatives have introduced a joint resolution (H.J. Res. 87) expressing congressional disapproval and seeking to block implementation of the United States Department of Labor’s controversial Final Rule relating to “persuader” activity under the Labor-Management Reporting and Disclosure Act (LMRDA). The Rule is set to become effective on April 25, 2016.

New Rule Requiring Disclosure of Attorneys/Consultants Hired to Aid in Responding to Union Activity

Yesterday, the Department of Labor's controversial "Persuader Rule" was published in the Federal Register and will require employers, beginning July 1, 2016, to make disclosures to the DOL regarding consultants and attorneys they hire to assist them in persuading employees regarding representational (union organizing) and collective bargaining matters. Previously, such disclosures were required only if the consultant had direct contact with the employees, but not if the consultant merely gave advice and assistance to the employer on how to communicate with employees.

DOL's Controversial Final 'Persuader Activity' Rule Expands Employer Reporting Requirements

On March 24, the US Department of Labor (DOL) published a controversial and long-awaited final rule under the Labor Management Reporting and Disclosure Act (LMRDA) that expands an employer's obligation to report persuader activity - activity engaged in to directly or indirectly persuade employees concerning their rights to organize and collectively bargain.

Equal Time for Union Organizers: How Far Will the NLRB Go?

Recently, 106 labor law professors and labor studies academics filed a rulemaking petition with the National Labor Relations Board (NLRB) seeking an administrative rule that would require employers to provide “equal time” to union organizers to campaign on employer-controlled premises at the employer’s cost. This “equal time” requirement would be imposed if an employer conducted meetings at any time after the employer first became aware of a union organizing campaign or had a sense that such a campaign was likely to be launched.

NLRB Says "Road Supervisors" Entitled to Organize

The NLRB continues to scrutinize closely cases presenting issues of supervisory status. In Veolia Transportation Services, Inc., 363 NLRB No. 98 (slip op. January 20, 2016), an NLRB panel voted 2 to 1 to overturn a Regional Director’s decision that a transportation company’s road supervisors possessed the authority to discipline and reward employees and therefore were supervisors within the meaning of Section 2(11) of the NLRA.

NLRB Seeks Briefs on Question of Graduate Students' Right to Organize

On January 13, 2016, the National Labor Relations Board issued a call for interested parties to file briefs addressing the Board’s current standard on whether graduate student assistants are “employees” under the National Labor Relations Act (NLRA).

Employer “Captive Audience” Communications Rule Under Attack

A group of 106 university and law school professors of labor law and employment relations has petitioned the National Labor Relations Board to issue a rule amending its long-held position regarding “captive audience” meetings held by employers in connection with NLRB-conducted union elections. The petition, filed on January 15, 2016, requires “equal time” for unions, if requested; if the union is not given equal time, an employer’s election victory will be overturned and a new election conducted.

Postcards from the R-Case Edge: Insights into Supervisory Status Issues in a Proposed Unit

Since the new “ambush” election rules went into effect on April 14, 2015, there have been over 1,000 petitions for elections filed with the National Labor Relations Board (NLRB). Approximately 60 of those petitions have led to pre-election representation-(R-case) hearings to determine unit issues. I participated in one of those 60 or so cases earlier this month and had the opportunity to glean insights on how the new procedures impact employers.

"Click Here To Organize" -- NLRB now Accepts E-Signatures on Authorization Cards

The National Labor Relations Board (NLRB) has made union organizing by email and social media a reality. The NLRB’s General Counsel issued Memorandum 15-08 on September 1, 2015, stating that, “[e]ffective immediately, parties may submit electronic signatures in support of a showing of interest.” On October 26, 2015, the General Counsel issued Revised Memorandum 15-08 providing more detail and examples of how the new process will work. Employers should expect unions to take advantage of this groundbreaking development by using email and social media to expedite and expand the organizing process.

NLRB Continues to Make Union Organizing Easier

Two recent pronouncements from the NLRB are the latest examples of the agency’s ongoing effort to make union organizing easier. Check out this link for more information!

Swipe Right For Unions? Companies Should Brace Themselves For Labor Organizing Version 2.0

Unless you’ve been hibernating, hiding under a rock, or vacationing in a location without Wi-Fi reception, you may have noticed that the last several months have been kinder to labor unions than any in recent memory. Changes in labor laws have provided an opening for labor unions to reassert their relevance in the American workplace after decades of decline.

NLRB Dismisses Northwestern Football Players' Organizing Petition

A unanimous decision on Monday by the National Labor Relations Board (NLRB) ended the Northwestern University scholarship football players’ bid to unionize — without addressing the key issue that has plagued collegiate athletics for so many years: whether college athletes are employees and entitled to the rights as such under federal law.

The NLRB Refuses to Require its General Counsel to Explain the Joint Employer Case Against McDonald's

The National Labor Relations Board continues the string of controversial moves in its unfair labor practice cases against McDonald’s. In December 2014, the NLRB’s General Counsel filed thirteen complaints naming the franchisor, McDonald’s USA, as a joint employer for alleged unfair labor practices of various local franchisees. On August 14, 2015, the Board issued a decision affirming an Administrative Law Judge’s decision denying McDonald’s USA, LLC’s motion for a bill of particulars.1 A bill of particulars would have required the General Counsel to specify the particular facts and law that support its theory of joint employer liability.

NLRB Rebuffs Northwestern Football Players' Unionization Bid

In a case that sparked nationwide debate, the National Labor Relations Board (NLRB) has declined jurisdiction and, therefore, dismissed an attempt by Northwestern University football players to unionize. The players claimed they are university employees and should be allowed to form a union and collectively bargain.

NLRB Sacks College Football Player Union Organizing Drive

Earlier today, the National Labor Relations Board (NLRB) unanimously decided that college football players at Northwestern University cannot comprise an appropriate bargaining unit, squelching their attempt to form the first-ever union comprised of collegiate athletes. The decision by the five-member panel puts to bed this organizing effort – for now.

D.C. Circuit Declares AT&T Had Right to Ban "Prisoner" T-Shirts

The U.S. Court of Appeals for the District of Columbia has ruled that AT&T had a right to forbid employees, when interacting with the public, from wearing t-shirts that the company reasonably believed could harm its relationship with customers or its public image. In Southern New England Telephone Company v. National Labor Relations Board, Nos. 11-1099 and 11-1143 (D.C. Cir. July 10, 2015), the court vacated and refused to enforce a decision by the National Labor Relations Board (“NLRB”) that found the company’s actions unlawful.

The NLRB is Primed to Change How Unions Organize Temporary Employees

Under current National Labor Relations Board rules, a union can organize a bargaining unit of temporary employees, and the user employer’s solely employed regular employees, only if both employers consent. However, the Board is primed to change this rule in Miller & Anderson, Inc.1 On May 18, 2015, the NLRB granted review of a Regional Director’s 2012 decision to dismiss a union election petition. By granting review of the Regional Director’s decision, the Board appears to be on the verge of including jointly employed temporary employees in a single unit with employees solely employed by one of the joint employers.

NLRB's General Counsel Confirms an Employer is Not Required to Provide Information Relating to a Union's Unsupported Belief that Two Separate Subsidiaries are Operating as One

Executive Summary: In a case handled by FordHarrison attorneys, the National Labor Relations Board (NLRB) General Counsel recently held that an employer was not required to provide information regarding the non-bargaining unit employees of a separate subsidiary to the union representing its employees. Dismissing unfair labor practice charges filed against the employer, the General Counsel held that the union failed to present objective evidence that the two subsidiaries were acting as a single employer; accordingly it was not entitled to information on the non-bargaining unit employees. See ABM Indus., Inc., NLRB Div. of Advice, No. 18-CA-136876 and 19-CA-124390, April 8, 2015, (released April 22, 2015).

Unions Are Poised To Make Gains In South's Auto Industry

Employers working for foreign-based automotive manufacturers in the 13 right-to-work states throughout the South should consider preparing for what may become a protracted battle over industry unionization. Volkswagen AG may have unwittingly shifted the paradigm last November when it became the first foreign-based automotive manufacturer to open its doors (in a manner of speaking) to organized labor at a domestic plant that is not jointly owned by an American-based manufacturer. A new policy at Volkswagen’s Chattanooga, Tennessee, plant — entitled the Community Organization Engagement policy — allows labor organizations to be involved in employee-related discussions if it can be established by an outside auditor that the labor organization has enrolled at least 15 percent of the plant’s workers in a relevant employee group.

eLABORate: NLRB Rules that Employees May Use Work Email for Union Communications

In a divided opinion issued on December 11, 2014, the National Labor Relations Board decided that employees who have been given access to their employer’s email system in the course of their work are entitled to use the system on nonworking time to engage in statutorily protected discussions about their terms and conditions of employment. Purple Communications, Inc., 361 NLRB 126 (2014). In so doing, the NLRB overruled its divided 2007 decision, Register Guard, 351 NLRB 1110 (2007), to the extent that it held that employees had no statutory right to use their employer’s email system for Section 7 purposes.

Faculty Can Unionize Absent Actual Managerial Control, NLRB Decides

Last week, the National Labor Relations Board (NLRB or Board) revised its standard for determining when faculty members can unionize. Although the decision is expected to be appealed, it undoubtedly will open the door to a new wave of organizing efforts targeting private college and university faculties. Pacific Lutheran University.

NLRB Opens Company Email Systems to Employees for Communications Protected by the National Labor Relations Act

Executive Summary: Perhaps overlooked due to the announcement by the National Labor Relations Board ("NLRB" or the "Board") of its revised procedures for union elections, the NLRB issued a decision on December 11 that will have a far-reaching impact on employers' e-mail systems.

Latest NLRB decision has employers seeing . . . Purple!

On December 11, 2014, the National Labor Relations Board (NLRB) stoked the fire that has been building around issues related to employees’ use of company e-mail for non-work-related issues. It did so when it held that the National Labor Relations Act (NLRA) supports an employee’s right to use an employer’s e-mail system for non-business purposes, including discussions about union organizing. Purple Communications, Inc. and Communications Workers, AFL-CIO, 361 N.L.R.B. No. 126 (December 11, 2014).

The Dawn of "Micro-Unions": A Scary Proposition for Employers

Executive Summary: Unions can be difficult enough to manage, even for experienced employers. Imagine taking your workforce of 100 employees and dividing them up into 10 different collective bargaining units… represented by 10 different unions… and 10 different collective bargaining agreements… with 10 different effective dates. Sound like an administrative nightmare? Welcome to the brave new world of "micro-unions." Recent National Labor Relations Board (NLRB) decisions have legitimized the use of such micro bargaining units and, by so doing, have thrust unparalleled confusion into the already murky waters of collective bargaining. This article discusses how the concept of micro-unions came about and how employers can best prepare and protect themselves from having micro-unions form in their workplaces.

The New Union-Organizing Tool … Embarrassment

Unions and other third parties have never before so heavily used public embarrassment as a means of organizing employees. The key to union organizing is to find a disgruntled employee who will serve as a leader and capitalize on existing workplace problems. These problems are typically compounded by communication breakdowns and ineffective supervisors. Surveys show that the most divisive workplace issues are a sense of unfairness, discrimination, an unsafe workplace, and a sense that the employer does not care about employees.

Box Score Petitions Compiled By The Hospitality Update Staff

In the most recent 60-day period, we were aware of 19 petitions filed against hospitality employers.

NLRB Decisions on “Micro Units” Provide Guidance for Employers Concerned With Union Organizing

In two recent decisions, the National Labor Relations Board (NLRB) reached different conclusions on whether unions can organize small groups of employees in a workplace. While the NLRB’s decisions in Macy’s, Inc. and The Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, both deal with retail employers, the principles articulated are applicable to employers in all industries. The decisions constitute a roadmap for unions seeking to gain representation rights over workers in single departments or within single job classifications. Employers concerned about union organizing need to understand the new paradigm that the NLRB created with these cases and take proactive steps to counter the expected surge in union organizing.

SCOTUS Preview: Is the End in Sight for Public Employee Unionism (and Fair Share Fees)?

Does a collective bargaining agreement that requires nonunion home-care workers to pay a fee to a union representative violate the First Amendment of the U.S. Constitution? In the next few days the Supreme Court of the United States will decide this question in a case challenging a state law requiring workers who provide in-home care to disabled individuals through Medicaid-waiver programs to pay “fair share fees.” The case, Harris v. Quinn, will determine the constitutionality of an Illinois law that requires these workers to accept and financially support a union as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs. The Court will also rule on whether the claims brought by some employees who have rejected unionization and are not subject to fair share fees are ripe for judicial review.

Healthcare Employers Must Be Consistent When Restricting Union Buttons and Other Insignia

Executive Summary: The National Labor Relations Board ("NLRB" or "Board") recently held that a healthcare employer violated the National Labor Relations Act (NLRA) by prohibiting employees from wearing union protest stickers. See HealthBridge Mgmt., LLC, 360 N.L.R.B. No. 118 (June 22, 2014). In the 2-1 decision, the Board found that HealthBridge could not prohibit employees from wearing union protest stickers inside or outside patient care areas because its rules were only selectively enforced, and HealthBridge could not establish "special circumstances" to justify the ban.

Northwestern Football Players' Unionization Remains Long Shot

An article by Freedley Hunsicker Jr., was featured in The Legal Intelligencer on May 6, 2014.

Will the Star Quarterback Be Sacked by the Taxman?

On March 26, 2014, a regional director of the National Labor Relations Board (NLRB) decided scholarship football players at Northwestern University are employees because they “perform services for the benefit of the employer for which they receive compensation.” A main factor in the regional director’s decision was that the monetary value of football scholarships is “as much as $76,000 per calendar year” meaning that the players receive in “total compensation in excess of one quarter of a million dollars throughout the four or five years they perform football duties.” The regional director also found that Northwestern’s scholarship football players are not primarily students but rather are “employees” under the common law definition. He noted that Northwestern has not treated scholarships or stipends as taxable income but held that not to be dispositive, citing a 2002 case decided by the Ninth Circuit Court of Appeals, Seattle Opera v. NLRB.

Are We There Yet?: Do Northwestern Players Have a Union or not?

When a Regional Director of the National Labor Relations Board (NLRB) found that scholarship football players at Northwestern University were employees entitled to vote on union representation, many media reports treated the case as a victory for the union. But as one Lawrence Peter “Yogi” Berra said, “It ain’t over ‘til it’s over.” The union scored first, but the game has not been decided.

NLRB to Decide Whether Northwestern’s Scholarship Football Players Are Students or Employees

Late this afternoon, the National Labor Relations Board (NLRB) in Washington, D.C. granted the request for review (i.e., an appeal) filed by Northwestern University in the much-watched case involving the status of Northwestern’s grant-in-aid scholarship football players. Northwestern is asking the NLRB to review and reverse the decision of the regional director of the NLRB’s Chicago office, finding that Northwestern’s scholarship football players (but not walk-ons) are “employees” under the law and eligible to vote on the issue of union representation.

Northwestern Ruling Is Full Of Conflicts

Popular support for unionization of college athletes grew out of legitimate safety concerns and recognition that some players may need stipends to supplement their scholarships, Kevin wrote. However, the recent narrowly applicable, politically driven decision to permit scholarship football players at Northwestern University to unionize does more harm than good.

Flag On The Play: Will Unions Change the Game of College Sports?

In a historic move, members of the Northwestern University football team recently took initial steps to form a union and seek collective-bargaining rights with the university. Shortly thereafter, the team filed a petition with the National Labor Relations Board (NLRB). In a decision that has some experts scratching their heads, the Board’s Regional Director in Chicago issued a decision finding that scholarship athletes are, in fact, employees under the National Labor Relations Act and are eligible to vote for union representation.

Shame On Who? Responding to Union Corporate Campaigns, Protests, and Bannering

The recent retail and fast food industry protests regarding demands for a “living wage” remind us that corporate campaigns by unions are a form of corporate warfare. They seek to inflict upon employers a “death from a thousand cuts.” Corporate campaign tactics include publicizing extremely negative and often false statements concerning the target company and its executives and attempting to intimidate those doing business with company. The objective is typically to embarrass the target, cause customers to take their business elsewhere, and ultimately force the employer to agree to some union demand.

Recent NLRB Decision Finding Scholarship Football Players to be "Employees" Raises a Host of Legal and Practical Issues for College Football Programs

By decision dated March 26, 2014, National Labor Relations Board (NLRB) Regional Director Peter Sung Ohr upheld the findings of a hearing officer which determined that all football players at Northwestern University who receive grant-in-aid scholarships are “employees” within the meaning of the National Labor Relations Act, and that a petitioned-for unit — comprising all Northwestern University football players receiving scholarships who have not exhausted their playing eligibility — may vote by secret ballot to determine whether the College Athlete Players Association (CAPA) should be their bargaining representative/union.

NLRB Regional Director Rules College Football Players Can Unionize

On March 26, 2014, a regional director for the National Labor Relations Board (NLRB) issued a decision and direction of election in a union representation petition filed by the College Athletes Players Association (CAPA) seeking to represent Northwestern University’s football players. CAPA, led by former Northwestern quarterback Kain Colter, petitioned the Board for a ruling that Northwestern football players who receive grant-in-aid scholarships are university employees and therefore eligible to form a union and engage in collective bargaining under the National Labor Relations Act (NLRA). The United Steelworkers and the National College Players Association supported the student-athletes’ efforts. The university opposed the petition, arguing that scholarship athletes are not employees, but similar to graduate teaching assistants who receive stipends and whom the Board has historically held are not employees because their primary purpose and relationship to their schools is educational, not economic.

State of the Unions: New Tactics Target Unorganized Workers

If you've been following the news, you probably realize that it has been a busy year for organized labor. The percentage of unionized workers in the private sector has fallen to historic lows, leaving unions with fewer dues-paying members, and motivating them to adopt new tactics to stem the decline. Exploiting a more favorable environment created by recent NLRB decisions promoting unionization, unions are turning their focus to grassroots organizations, social media, and previously uncharted geographical territory in an effort to revitalize their base.

New Health Care Law Poses New Union Organizing Threat

A New Orleans-based labor union has begun using the new federal health insurance exchanges created by the Affordable Care Act in an effort to unionize workers over a three-state territory, including Arkansas, Louisiana, and Texas. That's according to an alert issued on October 24, 2013, by the Louisiana Association of Business and Industry ("LABI"). Click here to read the full text of the alert and learn who's behind the new union organizing scheme and how it works.

Unions Want Fast Food – Now!

With union membership rates at their lowest level since the National Labor Relations Act (NLRA) was enacted in 1935, organized labor is desperately seeking to attract new members, even if that means targeting new industries that have traditionally been ignored. Over the past few months, unions have been busy sparking drives to organize retail and fast food service workers across the country.

Michigan As a Right to Work State - Random Thoughts

First, somewhat as an aside, the news coverage of this issue reminds me that any time I follow an issue that is covered by the media and falls into an area where I have my own expertise, I always come away with one thought - yikes. And then I quickly remind myself, I need to apply more skepticism to other things that the talking heads say in areas where I don't have any particular expertise.

Box Score Petitions Compiled by the HLL Staff

We are aware of only ten petitions filed during the month of October, the last month for which we have any reports.

Unions Poised to Exploit Changes in NLRB Rules

After winning 73% of elections in healthcare units in 2011, unions seeking to organize more healthcare workers are preparing to exploit opportunities arising from significant new rule changes and recent decisions by the National Labor Relations Board (NLRB). Hospitals, nursing homes, home health agencies, clinics and other healthcare employers who want to preserve their union-free status must therefore be prepared for a significant uptick in activity.

May Day? A Lack of A Call?

Earlier this morning I received an email forwarded from the management company in the downtown office building where I work, advising that there could be traffic issues arising out of protest activities planned for this afternoon.

D.C. Circuit Court Enjoins Enforcement of NLRB Notice Posting Rule

On April 17, 2012, the U.S. Court of Appeals for the District of Columbia issued an injunction preventing the National Labor Relations Board ("NLRB") from enforcing its employee notice posting rule, which had been scheduled to become enforceable on April 30, 2012. See Nat'l Ass'n of Mfrs. v. NLRB, Case No. 12-5068 (D.C. Cir. April 17, 2012). In issuing the injunction, the Circuit Court noted conflicting lower court decisions and held that "[t]he uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits." This ruling means that employers are not required to post an employee rights notice by April 30, 2012 informing employees of their rights to, among other things, organize into unions, engage in collective bargaining, discuss wages, benefits, and working conditions or to refrain from any of these activities.

Friday The 13th An Unlucky Day For The NLRB

For months now, the business community has been bracing for the implementation of two key pro-labor initiatives on April 30, courtesy of the National Labor Relations Board: 1) an expedited election rule designed to cut the period between petition and election in half; and 2) a first-ever mandatory-posting requirement that would educate employees as to their representation rights, while laying the groundwork for unfair labor practice charges and extended limitations periods against those employers who fail to comply. The first initiative is proceeding on course, despite ongoing challenges that will ultimately be played out before the courts.

Federal District Court Strikes Down NLRB's Posting Rule

On April 13, 2012, a federal district court in South Carolina invalidated the National Labor Relations Board's (NLRB) notice posting rule. Chamber of Commerce of the United States v. NLRB, No. 2:11-cv-02516-DCN, U.S. District Court for the District of South Carolina (April 13, 2012).

Federal Judge Rejects Request for Stay In Implementation of Union Rights Posting Requirements

A federal judge has ruled that implementation of a rule, requiring most private sector employers to post notice of employee union rights, will not be stayed pending an appeal of the court ruling allowing it to proceed.

Court Invalidates Sections of NLRB's Recent Notice-Posting Rule

Today, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia invalidated key provisions of the National Labor Relations Board's "Notification of Employee Rights" rule, under which all covered employers would have been required after April 30th of this year to post an 11" x 17" poster, or else to face possible legal consequences. While she left the actual posting requirement intact, she ruled that the proposed penalties attached to the Board's rule were unlawful under the National Labor Relations Act (NLRA).

Notice Posting Decision Disappoints Employers

On March 2, 2012, a federal trial judge in the District of Columbia issued a highly-anticipated ruling on the National Labor Relations Board's (NLRB) controversial notice posting rule. The court held that the NLRB did not exceed its statutory authority by requiring employers to post its "Notification of Employee Rights under the National Labor Relations Act." In language that seems at first favorable to employers, the court ruled that a failure to post is not automatically an unfair labor practice and does not automatically toll the statute of limitations in unfair labor practice actions. A closer reading, however, reveals that the court opened the door for the NLRB to find, on a case-by-case basis, violations and tolling for failure to post, thus allowing the Board to accomplish by decision what it cannot do by rulemaking.

NLRB's power to impose penalties for employer's failure to post "Employee Rights Notice" is clarified by the D.C. Circuit.

On March 2, 2012, a federal trial judge in the D.C. Circuit Court of Appeals issued a highly-anticipated ruling on the National Labor Relations Board's (NLRB) controversial notice posting rule. National Association of Manufacturers v. NLRB, No. 11-1629 (ABJ), U.S. District Court for the District of Columbia (March 2, 2012).

Further update on the NLRB's "Employee Rights Notice" - another extension of the posting deadline.

As most employers now are aware, on August 25, 2011, the National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Under that rule, private-sector employers whose workplaces fall under NLRA jurisdiction will be required to post a notice of employee rights regarding unionization. The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable.

NLRB Poster Requirement Delayed Until April 30, 2012

As we notified our clients several months ago, the NLRB recently issued a new notice-posting requirement, mandating that employers post an oversized (11" x 17") Notice of Employee Rights. See our August 25 Legal Alert. Because of the pressure of legal actions challenging the new rule, the implementation date was first pushed back from November 9 to January 31, which we noted in an updated Legal Alert on October 6.

NLRB Delays Requirement for Employers to Post Pro-Union Notice

In August, the National Labor Relations Board (NLRB) issued regulations requiring virtually all employers to post a large notice to employees informing them of rights under the National Labor Relations Act (NLRA), particularly their right to unionize. In December, the NLRB postponed the effective date until April 30th, 2012.

NLRB Delays Posting Deadline Requirement

The National Labor Relations Board (NLRB) has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

NLRB Delays Effective Date of Employee Rights Notice

On October 5, 2011, the National Labor Relations Board (NLRB) issued a press release announcing its decision to postpone the implementation date for the new NLRA employee rights notice. According to the NLRB, the initial effective date of November 14, 2011 has now been pushed back to January 31, 2012 to allow for enhanced education and outreach to employers.

Labor Day, A Day After - Should We Put This To A Vote?

Any thoughts on how the following legislative finding might fare in today's Congress?

NLRB Hands Down Union-Friendly Decisions

As expected, the end of Chairman Wilma Liebman's term at the National Labor Relations Board (NLRB) did not end without an onslaught of radical, precedent-reversing decisions. On August 30, the Board published three very significant 3-1 decisions signed by Liebman in the closing hours of her term.

NLRB Requires Employers to Post Pro-Union Notice: Employment Law Update

On August 25, 2011, the National Labor Relations Board (NLRB) issued regulations requiring virtually all employers to post a large notice to employees informing them of rights under the National Labor Relations Act (NLRA), particularly their right to unionize. Employers must post the notice beginning November 14, 2011.

NLRB's Rescue Plan for Unions - Part One

Under a new rule published by the National Labor Relations Board (NLRB or Board), most private sector employers will be required to post a workplace notice of employee rights under the National Labor Relations Act (NLRA) starting November 14, 2011. In essence, the notice informs employees that they have the right to form and join unions, bargain collectively with their employers, and to engage in other protected concerted activities, or to refrain from engaging in any of those activities. Specific rights are outlined, as well as prohibited conduct by employers and unions.

NLRB rule requires employers to post notice regarding employee rights to unionize.

On August 25, 2011, the National Labor Relations Board (NLRB) issued a press release in which it announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Private-sector employers (including labor organizations) whose workplaces fall under the jurisdiction of the NLRA will be required to post a notice of employee rights under that Act. In addition, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice at those sites. The proposed rule has been pending since December of last year, and will take effect on November 14, 2011, at which time the required notices must be posted.

National Labor Relations Board Now Requires Posting Of Employee Rights

n August 25, 2011, over the dissent of Member Brian Hayes, the National Labor Relations Board issued a final rule addressing "Notification of Employee Rights under the National Labor Relations Act." Effective 75 days following the August 26, 2011 scheduled publication in the Federal Register, which would be November 9, or November 14 (per the NLRB's inconsistent press release), every employer covered by the National Labor Relations Act will be required to post the prescribed 11x17 inch notice.

Final Rule, Finally Issued, on Employee Rights Notice Posting

On August 25, the National Labor Relations Board (NLRB) issued a press release announcing its final rule on Notification of Employee Rights under the National Labor Relations Act (NLRA). The proposed rule had been pending since December of last year.

Unions Continue Success In Organizing Healthcare Employees

In recent years, unions have continued to realize greater success in organizing healthcare employees than employees in other industries. Union win rates in the healthcare sector have been at or above 70%, generally about 10% above their win rates in other sectors. Additionally, more elections are taking place in the healthcare industry. The total jumped from 220 elections in 2009 to 305 elections in 2010.

Piling On! DOL Proposes Rule Changes That Will Impact Employers

By now you're aware of the NLRB's proposed rule changes aimed at speeding up elections to make it easier for unions to organize. (See our Legal Alert "Unions In Decline? Labor Board To The Rescue!" June 30, 2011).

NLRB Issues Key New York New York Decision

Finally, after over a decade of litigation, the National Labor Relations Board (NLRB) issued its decision in New York New York LLC, 356 NLRB No. 119 (March 25, 2011) on remand from the District of Columbia Circuit Court of Appeals. Based on the Board’s precedent-setting ruling, we could have waited a little longer.

Unions In Decline? Labor Board To The Rescue!

The failure of the Employee Free Choice Act to become law does not mean that unions are giving up, or that their elected and appointed officials are throwing in the towel on their efforts to increase unions' ever-shrinking share of the American work force. Last week the National Labor Relations Board (NLRB) took a giant step in that direction.

Micro unions could create big problems

Recent pro-union actions by the National Labor Relations Board (NLRB) are making it easier to unionize employees. One of the latest potential changes involves micro-unions, a possible outcome of Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, a case pending before the NLRB.

Constitutional Showdown Threatened Over South Carolina's Secret Ballot Protection Amendment

In a January 13, 2011, letter to newly-elected Attorney General Alan Wilson, the National Labor Relations Board (NLRB) threatened to file suit against South Carolina if the General Assembly ratifies the recently passed constitutional amendment guaranteeing individuals the right to a secret ballot vote on the issue of union representation. The letter, written by Acting NLRB General Counsel Lafe Solomon, asserts that federal labor law preempts state law � including state constitutional provisions � and gives him the right to file suit in federal court to hold the conflicting state provision unconstitutional.

Under proposed NLRB rule, all employers must post a notice of employees' right to unionize and to strike.

The National Labor Relations Act (NLRA) is one of the few federal employment/labor laws which does not include a specific provision requiring employers to post a notice related to employee rights under that law.

NLRB Examines The Electronic Workplace.

The National Labor Relations Board (NLRB) recently issued a decision finding that an employer must distribute remedial notices electronically when that is a customary means of communication with its employees. As a result, the NLRB modified its standard notice posting provision - which requires posting of remedial notices in all places where notices to employees are customarily posted - to expressly include electronic communications.

Going Over The Top At Disneyland: Sleazy Union Tactics In "The Happiest Place On Earth"

Disneyland is known as "The Happiest Place On Earth." But UNITE HERE Local 11, the Union that represents the park's 2,100 hotel employees, is not in a happy place. For close to three years now, it has been bargaining over a new labor contract. During that time, the union has staged protests and walk-outs, had its members engage in a week-long hunger strike and gone on a one-day quickie strike. But no matter what the union has done to force the issue, no new labor agreement has been reached.

SEIU Paints A Bull's Eye On Fast Food Industry.

It's common for fast food workers in Canada, Germany, France and Australia to be represented by a union. But in America less than 2% of fast food workers are unionized – and most of them work in stores located on college campuses, in hospitals or in government buildings where labor unions are commonplace. Indeed, until very recently, the conventional wisdom among union leadership was that employees working in freestanding fast food restaurants were simply too short-sighted, too transient, or too timid, to be viable targets for union organizing. Accordingly, even though it promises the possibility of hundreds of thousands of new union members, the fast food industry has gone largely ignored by unions. All of that may soon change.

UNITE-HERE Ups The Ante Against Hotels.

Hotels and other entities should expect unions to routinely use OSHA citations as an organizing tool and a way to harass hospitality employers. In a recent Hospitality Update, we described a May 12 Houston Chronicle article complaining about the allegedly high rate of ergonomic injuries suffered by hotel employees. [See "Multiple Embarrassing OSHA Citations: The Next Union Organizing Tactic?" by Howard Mavity. Hospitality Update, June, 2010.]

If You Build It...

It comes as no surprise that employers in the last several years have been forced to focus on survival in an extremely difficult environment. There have been sharply decreased (or nonexistent) profit margins, falling sales, reorganizations, reductions in force, retrenchment and reversion to the mean. Overall business conditions aren't really much better now than they were three years ago and nobody really knows when they will improve.

EFCA, Schmefca: The Obama Board Won't Wait For Legislation To Change Labor Law

Even with the Employee Free Choice Act (EFCA) now seemingly DOA, major reform of labor law is not far off. Wilma Liebman and the three new Obama appointees, including Craig Becker, are now in the driver's seat at the National Labor Relations Board. Big Labor justifiably expects the Liebman/Becker-led Board to deliver on Obama's campaign promises and to revamp federal labor law in its favor.

Hospitality Industry: "Hello. I'm From The Union And I'm Here To Help You."

This is a message to our clients who have union-free operations. We assume that you operate non-union for a reason, and that you work hard to ensure that you preserve and maintain your non-union status. In case you needed one, here is just one more reason that remaining non-union gives you an edge in managing your operation.

Executive Order 13496 (Employee Posting Rule) Update.

New requirements under Executive Order 13496 could appear in federal contracts and subcontracts as early as this week. The final rule, published on May 21, becomes effective June 21, 2010. Fortunately or unfortunately, the Federal Acquisition Regulation Council (FAR Council) has not yet issued an implementing FAR that will require the employee notice to be posted.

DOL Issues Final Rule on Notification by Federal Contractors of Employee Labor Law Rights.

The Department of Labor's Office of Labor Management Standards (OLMS) published a final rule on May 20, 2010, implementing Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. This EO mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice "in all places where notices to employees are customarily posted both physically and electronically," informing them of their rights under the National Labor Relations Act (NLRA). In turn, covered contractors are required to include a similar provision in subcontracts that are necessary to the performance of the government contract and in an amount in excess of $10,000.

Multiple Embarrassing OSHA Citations: The Next Union Organizing Tactic?

While many union organizers seem to have moved to D.C. to become lobbyists, UNITE/HERE, the SEIU, and other unions continue to aggressively campaign against hospitality employers. Campaigns are becoming even more nasty than in the past. Unions consciously harm the property's reputation and inflict costly wage-hour, discrimination, and OSHA costs that may weaken the employer's resolve.

Federal Contractors Must Post Employee Rights Poster and Include Contract Notice.

A final rule issued May 20, 2010, provides the poster federal contractors and sub-contractors are required to post to provide employees notice of their rights under the National Labor Relations Act. This rule implements President Obama's Executive Order 13496, signed January 30, 2009. The Order has two requirements for covered federal contractors and sub-contractors; (1) post with other employee notices, including electronically, the "Employee Rights under the National Labor Relations Act" poster and (2) include the language of the employee notice requirement.

New Employee Notification Requirements for Federal Contractors and Subcontractors Issued Today.

Pursuant to a Department of Labor (DOL) Final Rule published on May 20 and going into effect on June 21, 2010, federal contractors and subcontractors subject to the National Labor Relations Act (NLRA) will be required to include certain language in their contracts and to conspicuously post notices of employee rights under federal labor laws. The Final Rule describes the content of the notice required to be posted by contractors and most subcontractors, and outlines the penalties that can be imposed for noncompliance. This Final Rule, published in today’s Federal Register, implements Executive Order 13496, signed by President Barack Obama in January of last year.

The Future of Unions: A Key Question.

BNA's Daily Labor Report ($) has an article based on its in depth interview with the soon to be former head of the SEIU, Andy Stern, that is well worth the read.

Union Membership Declines In 2009.

The union membership statistics for 2009 suggest that organized labor has lost ground over the past year. According to the Bureau of Labor Statistics' report on annual union membership, private sector unions lost 834,000 members in 2009, bringing membership down to 7.2 percent of the private sector workforce (compared to 7.6 percent in 2008). Overall union membership, however, held steady at 12.3 percent in 2009. This was largely due to public sector union membership, which rose slightly from 36.8 percent in 2008 to 37.4 percent last year.

Union Avoidance + Improved Employee Relations = As Good As It Gets.

While our crystal ball is no better than anyone else's, change in our country's labor laws appears to be drawing ever closer. While EFCA as it was originally proposed with its elimination of secret-ballot elections is undergoing change, a lot of other tweaking has been going on lately in the Senate reflecting unions' desire to find some form of legislation which will pass and which will give them the stimulus they need to revitalize their efforts to halt the continuing loss of union jobs and members.

Who Needs EFCA? - Expect Big Labor Law "Reforms" From the NLRB.

For the past several years, the business community's attention has been focused almost exclusively on federal legislation inaccurately named the "Employee Free Choice Act" (EFCA). That legislation would radically overhaul labor-management relations by substituting "card check" (employees' signatures on union cards) in place of government-protected secret ballot union representation elections, and by compelling arbitration of first contracts written by federally-appointed arbitrators where the union and the employer fail to agree after 120 days of bargaining. EFCA also contains anti-employer penalties and fines of $20,000 per violation and triple back pay, as well as federal court injunctions.

Top Five Reasons You Can't Blame Employees For Joining A Union.

We all know that union membership has been on the decline for decades. But with a new administration in the White House, and Democrat majorities in the House and Senate, employers should expect significant labor law reforms and dramatically different enforcement strategies that will make it easier for labor unions to organize employees. In fact, hopeful labor leaders proclaim that the expected changes could add up to 1.5 million new members per year for the next 15 years.

Carroll College Case Proves No Free Pass For Unions...Yet.

With membership at its lowest point in over 60 years, unions are steadfastly proving they still know how to play politics. Organized labor has recently taken steps to reinforce its ranks through legislation, introducing significant reform efforts such as the Employee Free Choice Act (EFCA). The Act, in effect, would eliminate secret ballot elections from the provisions of the National Labor Relations Act (NLRA) related to union organizing, substitute card check verification instead, and make employer neutrality mandatory in the electoral process.

New Employee Notice Rule Proposed for Federal Contractors and Subcontractors.

On August 3, 2009, the U.S. Department of Labor (DOL) issued a proposed rule to implement President Barack Obama’s recent Executive Order 13496 requiring federal contractors to inform employees of their rights under federal labor laws, including the National Labor Relations Act (NLRA). Executive Order 13496 requires covered contractors to include certain language in their contracts and to conspicuously post notices of employee rights under federal labor laws. The proposed rule describes the content of the required notice, which contractors and subcontractors must post, and the penalties that can be imposed for noncompliance.

EFCA Introduced In Congress.

After much speculation, the Employee Free Choice Act of 2009 (EFCA) was introduced in the 111th Congress on March 10. The bills introduced in both the House of Representatives, H.R. 1409, and Senate, S. 560, are identical to last year's measure, which passed the House but stalled in the Senate due to a filibuster on the motion to debate the bill on the Senate Floor. This year's bills were introduced with fewer original cosponsors amid increasing concerns regarding the economic impact of "card check" and compulsory arbitration of first contracts.

Employee Free Choice Act in the 111th Congress: The Battle is Joined (pdf).

The grossly misnamed and highly controversial Employee Free Choice Act (“EFCA”) was introduced by Senators Ted Kennedy (D-MA) and Tom Harkin (D-IA), and Representative George Miller (D-CA) in the 111th Congress on March 10, 2009 (H.R. 1409, S. 560). The legislative fight over EFCA is a battle royale between business and organized labor and is a defining moment in the history of labor relations in the United States. The President of the U. S. Chamber of Commerce, Tom Donahue, in a major address in Washington last week, called this legislation “Armageddon” and a “game changer.” EFCA is clearly the most ambitious and transformative piece of labor legislation to come before Congress since the 1935 enactment of the National Labor Relations Act (“NLRA”) and would radically alter the balance of power between management and labor.

One Step Closer to The Employee Free Choice Act.

The Employee Free Choice Act was introduced in both houses of Congress today. The bill would allow labor unions to bypass secret ballot representation elections that have been in place for 75 years in favor of a streamlined process known as "card check." It also contains binding arbitration provisions that would allow an outside arbitrator to dictate the terms of a first contract in the event that the parties cannot reach agreement within the first four months of negotiations, and it would impose substantially increased penalties against employers who commit unfair labor practices.

EFCA Introduced in Congress.

After much speculation, the Employee Free Choice Act of 2009 (EFCA) was introduced on March 10 in the 111th Congress. The new bills introduced in both the House of Representatives and Senate are identical to last year’s bill, which passed the House but was stalled in the Senate by a filibuster on the motion to debate the bill on the Senate Floor.

New Employment Laws to Worry About: It's Not Just About Card Check Anymore.

Employers are rightfully concerned and even alarmed about what to expect from the new Congress and the Obama Administration. Democrats are firmly in control and owe much to organized labor and other constituencies that are not necessarily employer-friendly. So, what can healthcare expect in the new year and beyond?

Video - "Employment Law: How Will the 2008 Election Impact You and Your Business?"

Employers can expect that efforts will be made to significantly change employment and labor laws and regulations over the next several months. Nexsen Pruet Employment and Labor Law attorneys David Dubberly, William Floyd, Cherie Blackburn and Mike Brittingham provide a briefing to help clients prepare for the changes.

2008 Elections Cause Concern Among Employers.

In a historic and hard-fought election, Senator Barack Obama was elected the 44th President of the United States earlier this month. President-elect Obama will be the first African-American president in the country's history.

The EFCA Problem For Retailers.

Gallons of ink have been spilled by lawyers and journalists concerning the Employee Free Choice Act (EFCA). But this law is likely to have a particular effect on retailers, and retailers – more so than other employers – should start planning for the worst now.

The EFCA, Organized Labor's Legislative Agenda and Its Impact on Your Business.

Organized labor's membership in the private sector has plummeted below 8 % – an all time low. To address this problem, unions have turned to an aggressive legislative agenda designed to tilt the scales in their favor. Among the items on their priority list are the Employee Free Choice Act (EFCA) and the Re-Employment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT Act).

Employee Free Choice Act -- Overview and Preparation (pdf).

The recently concluded Presidential and Congressional elections have organized labor salivating over the likely passage of the so-called and grossly misnamed Employee Free Choice Act (“EFCA”). EFCA, which actually would eliminate “employee free choice” concerning unionization, is at the very top of organized labor’s very aggressive legislative agenda and enjoys the strong support of President-elect Barack Obama. You cannot underestimate how dramatically the enactment of this misguided and ham-handed legislation could change your workplace and jeopardize your business and the livelihoods of your employees. The proposed law is nothing short of a power grab by unions. At this point, EFCA is still only proposed legislation, and no one knows exactly what form it will take upon final passage. One thing is certain, however: with strong Democrat majorities in both the House and Senate, and a President who is eager to sign the legislation, EFCA is certain to become law in some form, and employers need to begin preparing for it now.

Unions Continue to Covet Healthcare Workers: Is Your Hospital Ready?

By now, most hospital and healthcare leaders recognize that their employees represent an increasingly inviting organizing target for unions such as the Service Employees' International Union (SEIU) and the California Nurses Association (CNA). If any question remains, it is "when," not "if" one or more unions will mount some sort of an offensive at your facility.

The EFCA: Organized Labor's Legislative Agenda and Its Impact on Your Business.

Organized labor's density in the private sector has plummeted below 8% – an all time low. To address this problem, unions are increasingly turning to an aggressive legislative agenda designed to tilt the scales in their favor. Among those items at the top of their priority list are the Employee Free Choice Act (EFCA) and the Re-Employment of Skilled and Professional Employees and Construction Tradeworkers Act (the RESPECT).

The Return of Labor.

The election looms. No one can say with certainty what the results will be. The political scene may shift dramatically in a few months. But organized labor is as excited as a child on Christmas Eve. Conventional wisdom feeds this optimism.

Hospitality Labor Letter: Box Score (Spring 2008).

There have been 24 union petitions at hospitality employers, that we are aware of, filed since the beginning of 2008.

Prohibition on Union Buttons May Violate National Labor Relations Act.

The 9th U.S. Circuit Court of Appeals has overturned a decision by the National Labor Relations Board related to a hospital’s prohibition on union buttons. According to the Ninth Circuit, prohibiting the buttons violated nurse/employees’ rights under the National Labor Relations Act.

Unions Maintain Focus On Healthcare Employers.

While their overall membership rates continue to decline, unions remain focused on attracting and organizing new dues-paying members in the relatively untapped healthcare market. Maintaining a historic trend, union membership dropped again last year; it's now less than 9% of the private sector workforce, roughly 12.0% counting public employers.

Cute Titles for Bad Laws: A look at union-sponsored federal legislation.

Most of our readers have heard of the "Employee Free Choice Act" (EFCA). The bill passed the U.S. House of Representatives, but was subject to a Republican Party filibuster in the Senate. This union and Democratic Party-sponsored legislation would eliminate secret ballot elections regarding union representation in a workplace, and instead make such representation automatic and mandatory if more than 50% of employees in a bargaining unit signed union authorization cards.

Auto Dealership Update: Unions Push on Several Fronts.

Organized labor's efforts to unionize auto dealerships continued unabated during 2007. While these efforts will no doubt continue in 2008, federal legislative changes loom on the horizon which, if enacted, will significantly increase the number of successful unionization efforts. Regardless of whether these changes are implemented, dealerships should consider implementing an updated pre-campaign strategy designed to anticipate and adapt to labor's evolving unionization efforts.

California Nurses Association Launches New Wide-Ranging Mail Campaign.

Fresh from its "victory" in an election at Cypress Fairbanks Hospital in Houston, the California Nurses Association (CNA) has wasted no time in launching a wide-spread direct mail campaign that targets registered nurses in several states. The full color tri-fold campaign pieces, which have been arriving in nurses' homes during the past 10 days, include union authorization cards. At a minimum, nurses in Texas, Florida, North Carolina, South Carolina, Georgia, Kentucky and Illinois have received these mailers.

Houston Nurses Vote for Unionization.

It has been no secret that high-profile unions are devoting considerable resources to their attempts to organize employees in the healthcare industry. Bolstered by success in California, New York, Illinois and Florida, the California Nurses Association (CNA) and the Service Employees International Union (SEIU) have now set their sights on the vast, relatively untapped state of Texas.

Guidelines For Investigation of "Salting" Claims Issued.

On February 15, 2008, the Office of the General Counsel for the National Labor Relations Board (NLRB) issued two guideline memoranda to Regional Directors, Officers-in-Charge, and Resident Officers, outlining the NLRB's rationale in two recent decisions, and providing guidance for analyzing, investigating, and pleading union "salting" claims in light of those decisions.

9th Circuit Upholds Casino's Right to Express Opinions on Unionization.

The rule of thumb for employers facing union campaigns dictates that managers may offer employees facts about unions, their opinions on unions in general, or their personal experiences in previous dealings with unions. The general limitation on this rule is that employers may not threaten employees, interrogate or spy on them, or promise benefits in exchange for opposing the union.

Zounds! Tough Talk About Bargaining No Threat To Knights And Squires.

Employers who have been involved in union election campaigns know that it's important to educate employees on all aspects of unionism, in order to counter the union's often pie-in-the-sky promises of more money, better benefits, and a chicken in every pot.

Unions Target Healthcare Industry With New Organizing Tactics.

Organized labor has a new target in sight - the healthcare industry - and it has begun using creative ways to make an initial contact and to identify individuals who might be receptive to the union's message. Contacts have focused on social activism, legislative efforts, and improving the quality of patient care, although these issues may not be the union's true organizing objective.

SEIU Establishes New National Healthcare Union.

The Service Employees International Union (SEIU) recently announced the creation of a "new national healthcare union" called "SEIU Healthcare." This major initiative could have significant ramifications on union organizing in healthcare.

Construction Company's Discharge Of Union "Salt" Held Unlawful.

The federal appellate court with jurisdiction over South Carolina employers recently ruled against a nonunion employer who fired an employee for dishonesty after he started distributing union materials. According to the Fourth Circuit Court of Appeals, there was sufficient evidence that the employer, which did not thoroughly investigate the dishonesty allegation, was motivated by anti-union animus.

Congress Debating "Employee Free Choice Act" (pdf).

With the political shift in Congress, several important labor or employment laws may significantly change.

Union Forced Card Check Bill Passes House by Wide Margin... Next Step The U.S. Senate.

Today, the U.S. House of Representatives voted 241-185 to pass H.R. 800, the misnamed "Employee Free Choice Act (EFCA) of 2007." With its passage by the House, organized labor's efforts to overhaul the Nation's labor laws cleared its first legislative hurdle. The bill now goes to the U.S. Senate that will take up either the House-passed bill or a companion bill to be introduced by Senate Health, Education, Labor and Pensions Committee Chairman Edward Kennedy (D-MA).

Unions Urge Congress To Eliminate Secret-Ballot Elections (pdf).

It seems incredible that, in America of all places, arguments must be mustered to support the idea of a secret-ballot election. Yet that is exactly the situation in the current Congress. Rep. George Miller (D-CA), current chairman of the House Education and Labor Committee, has introduced the oddly-named “Employee Free Choice Act,” (EFCA) perhaps better known as the “card check” bill. Its purpose is to eliminate the right of employees to decide via secret ballot whether they wish to be represented by a labor union or not.

New Congressional Leadership Introduces Union Organizing Measure To Guarantee Union Contracts (pdf).

New Congressional Leadership Introduces Union Organizing Measure To Guarantee Union Contracts.

Unions Expect Help from New Congress (pdf).

Sieck guaranteed success in organizing, mandated contracts.
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