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Adventures in Buttonland: NLRB Rejects Employer Attempts to Ban Buttons at Work

Two recent cases, one from the National Labor Relations Board, and one from a federal court of appeals enforcing an NLRB decision, highlight the risk an employer runs when it seeks to prohibit its employees from wearing buttons at work.

The NLRB Fires a Shot Across the Bow of Federal Contractors

The National Labor Relations Board (NLRB) fired off some fireworks of its own just before the Fourth of July weekend. Specifically, the NLRB announced a new procedure to implement Executive Order 13673 Fair Pay and Safe Workplaces (EO 13673), and facilitate the flow of NLRB case data into the databases used by contracting agencies.

NLRB Implements Reporting Mechanism of Labor Law Violations

The National Labor Relations Board (NLRB) released a memorandum to all NLRB regional directors advising them of a new reporting mechanism for unfair labor practices.

NLRB Begins Reporting Alleged Labor Law Violations to Federal Contractor Database

The National Labor Relations Board (NLRB) has directed its regional office personnel to begin reporting alleged labor law violations by government contractors named by regional directors in unfair labor practice complaints issued on or after July 1, 2016.

Overruling Precedent, NLRB Holds Bargaining Units of Jointly and Solely Employed Employees May Elect Union Representative Absent Consent of Their Employers

In a departure from more than a decade-long precedent, the National Labor Relations Board has held that Board-conducted representation elections in bargaining units combining employees who are (a) jointly employed by a user employer and supplier employer and (b) solely employed by the user employer do not require the consent of either employer. Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016).

NLRB Allows Bargaining Units With Temporary, Permanent Employees Without Employer Consent

In Miller & Anderson, Inc., the National Labor Relations Board has ruled that employer consent is not required for bargaining units that combine jointly employed and solely employed employees of a single employer. The Board reasoned that these units are appropriate so long as the contingent and regular employees "share a community of interest."

The Other Shoe Drops—The NLRB’s “Contingent Workforce” Activism Continues

The National Labor Relations Board (NLRB) will now permit a single bargaining unit to include employees who are solely employed by an employer along with other employees who are jointly employed by that employer and a staffing provider, all without the consent of either employer. The NLRB’s July 11, 2016 decision in Miller & Anderson, Inc. overturns more than a decade of precedent under the NLRB’s 2004 Oakwood Care Center decision, in which the NLRB previously held that jointly-employed employees could not be included in a bargaining unit with solely-employed employees unless both employers consent to the multi-employer bargaining arrangement. In overturning Oakwood Care Center, the NLRB expressly reverted to the NLRB’s rule set forth in its 2000 decision in M.B. Sturgis, Inc.

NLRB Paves the Way for Bargaining Units Composed of Employees of Two Different Employers

In a widely anticipated decision, the National Labor Relations Board has reversed its 2004 decision in Oakwood Care Center,1 and determined a union seeking to represent employees in a bargaining unit composed of employees solely employed by a “user employer” (a company that hires temporary workers) and those jointly employed by the user employer and temporary labor provider is not required to obtain the consent of both employers. In Miller & Anderson, Inc.,2 the Board held that in determining if a combined unit is appropriate, it will apply traditional “community of interest” factors.

NLRB Overrules Precedent, Holds Bargaining Units Combining Jointly- and Solely-Employed Employees Okay Without Consent

The National Labor Relations Board has decided that bargaining units combining employees who are jointly employed by a user employer and supplier employer and solely employed by the user employer do not require the consent of either employer.

NLRB Holds Employer Consent Not Required for a Union to Represent a Bargaining Unit Combining both Regular and Temporary Employees

Executive Summary: In a July 11, 2016, decision that will make it easier for unions to organize temporary employees, the National Labor Relations Board (NLRB) overruled existing precedent and held a union may represent a bargaining unit consisting of both regular employees and temporary employees supplied by another employer even if the employers do not consent. See Miller & Anderson, Inc., 364 NLRB No. 39 (2016). Previously, the NLRB would not permit an election in a bargaining unit that combined employees from more than one employer unless all employers agreed. This decision increases the likelihood that employers who use temporary employees will become enmeshed in labor relations disputes involving those temporary employees.