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NLRB General Counsel Acknowledges Legal Stumbling Block in Joint Employment Issue, Highlights Priorities

Speaking at a West Virginia University College of Law event last week, National Labor Relations Board General Counsel Richard F. Griffin, Jr. pointed out the pitfalls in his office's argument that franchisors should be named in unfair labor practice charge complaints as joint employers with their franchisees. According to Griffin, "we have a problem legally for our theory." In July, Griffin surprised many by announcing that his office intends to name a parent franchisor as a respondent in cases involving alleged unfair labor practices committed by franchisees if a settlement is not reached. This decision caused an uproar in the business community – as discussed extensively during a September congressional subcommittee hearing – because it would make significant changes to the franchise model.

Executive Labor Summary (October 2014)

Ebola crisis: the next big organizing issue? NLRB delays decision on whether employers may restrict use of their email networks Senate HELP Committee approves Sharon Block for full Senate vote on nomination to NLRB

Covered by CBA, Employee’s State Law Whistleblower Claim Preempted by Federal Law, New Jersey Court Rules

An employee represented under a collective bargaining agreement (“CBA”) is barred from claiming whistleblower retaliatory discharge under the New Jersey Conscientious Employee Protection Act (“CEPA”) against his employer where his claim necessitates an interpretation of the CBA, the Superior Court of New Jersey, Appellate Division has ruled. Puglia v. Elk Pipeline, Inc., et al., No. A-0886-13T1 (N.J. Super. Ct. App. Div. Oct. 10, 2014). The appellate court determined the plaintiff’s claim involved issues addressed in the CBA and covered by the National Labor Relations Act (“NLRA”), requiring administrative review by the National Labor Relations Board. Accordingly, the Court affirmed the trial court’s grant of summary judgment and dismissed the complaint.

Resource Update: NLRB's Continuing Expansion of Off-Duty Access Rights

Since the U.S. Supreme Court's landmark decision in Republic Aviation v. NLRB almost seventy years ago, courts and the National Labor Relations Board have been weighing employers' property rights against union rights under federal labor law in determining whether to allow union organizers access to work sites.

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.

Avoid Making Your Business “Easy-to-Unionize”

Last year, the National Labor Relations Board (“Board”) put its stamp of approval on “micro-units,” or small groups of employees who may unionize. The Board recently decided two cases involving micro-units in Macy’s and Bergdorf Goodman, which should make employers ask themselves, “Does my business model make it easier for a union to organize my employees?”

Buyer Beware – Continuing Its Controversial Changes, NLRB Increases the Price Tag of a Successor's Unlawful Failure to Hire Its Predecessor's Employees

On September 30, 2014, the National Labor Relations Board overruled established precedent once again. The Board’s decision enhanced the liability to which a successor employer is exposed when it fails to hire employees of its predecessor to avoid recognizing their union representative. In Pressroom Cleaners Inc., Decision and Order, Case No. 34-CA-071823 (Sept. 30, 2014), the Board held a successor found guilty of such a scheme, in addition to being required to recognize and bargain with the union, had to: (1) restore the “status quo” by putting in place the employment terms of its predecessor, i.e., those spelled out in their old labor agreement, until it bargained to an agreement or impasse with the union; and (2) pay the employees it unlawfully failed to hire back pay and benefits under the monetary terms under which they worked for the predecessor.

Buyer Beware – Continuing Its Controversial Changes, NLRB Increases the Price Tag of a Successor's Unlawful Failure to Hire Its Predecessor's Employees

On September 30, 2014, the National Labor Relations Board overruled established precedent once again. The Board’s decision enhanced the liability to which a successor employer is exposed when it fails to hire employees of its predecessor to avoid recognizing their union representative. In Pressroom Cleaners Inc., Decision and Order, Case No. 34-CA-071823 (Sept. 30, 2014), the Board held a successor found guilty of such a scheme, in addition to being required to recognize and bargain with the union, had to: (1) restore the “status quo” by putting in place the employment terms of its predecessor, i.e., those spelled out in their old labor agreement, until it bargained to an agreement or impasse with the union; and (2) pay the employees it unlawfully failed to hire back pay and benefits under the monetary terms under which they worked for the predecessor.

Board Holds off on Major E-mail Use Pronouncement . . . For Now

In its long-awaited Purple Communications decision, on September 24, 2014, the NLRB reserved judgment on the most anticipated issue in the case: the legality of the employer’s electronic communications policy prohibiting use of e-mail for any nonbusiness reason, and the continuing validity of the NLRB’s 2007 Register Guard decision. The Board had previously invited briefing from both the parties and amicus regarding whether to overrule or modify Register Guard, and it was anticipated the Board would address that issue in the Purple Communications decision.

NLRB Declines to Revisit Employee Use of Company Email Systems . . .

Under current National Labor Relations Board (NLRB) law, employees do not have a statutory right to use their employers’ email systems for union organizing or for other purposes. Email systems remain employer property for now, as the Board, in Purple Communications, Inc., 361 NLRB No. 43 (2014), declined the NLRB’s General Counsel’s invitation to overrule Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). But, in continuation of a troubling trend, the Board in Purple found yet another employer work rule—a “no disruption” rule—to be unlawful, resulting in an employer’s election victory being overturned and a new election being ordered.