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Back To Basics: A Divided Seventh Circuit Upholds Indiana’s “Right To Work” Law

In 2012, Indiana enacted the “Indiana Right to Work Act”, prohibiting unions from requiring an individual, as a condition of employment, to 1) become or remain a member of a labor organization; 2) pay dues, fees, assessments, or other charges of any kind or amount to a labor organization; or 3) pay to a charity or third party an amount equivalent to or a pro-rate part of dues, fees, assessments or other charges required of members of a labor organization. Indiana thus became one of 24 states with some version of a right to work law on the books.

Senators Introduce NLRB Reform Act to Reduce Partisanship at the Board

On September 16, 2014, Senate Republican Leader Mitch McConnell (R-KY) and Senator Lamar Alexander (R-TN) introduced the National Labor Relations Board Reform Act. In a press release, Sen. McConnell said, “it’s past time to restore the NLRB to its proper role as umpire, instead of advocate for the Right or Left.” Co-sponsor Alexander said, “The board is too partisan, swinging from one side to the other with each new administration . . . It's time for the board to restore stability to our nation's workplaces, with nonpartisan decisions made more quickly, assisted by a neutral general counsel.”

California Hospital Ordered to Pay Union's Negotiating Costs

In a decision highlighting the importance of bargaining in good faith, the National Labor Relations Board recently held that a California Hospital must reimburse the union’s negotiating costs as a remedy for the hospital’s post-election misconduct. NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Harry I. Johnson adopted and expanded the Administrative Law Judge’s (ALJ) decision holding that Hospital of Barstow, Inc. violated the National Labor Relations Act by making unilateral changes to nurse training requirements and by setting preconditions to bargaining.

Senate Considers Nomination of Sharon Block to the NLRB

A day after the Senate returned from its summer recess, the Committee on Health, Education, Labor and Pensions held a hearing to discuss the nomination of former recess appointee Sharon Block to be a member of the National Labor Relations Board. President Obama announced his intent to re-nominate Block to the Board on July 10, 2014. Block previously served as a member of the Board from January 2012 – when the President seated her and two other members via recess appointment – until the summer of 2013, when her nomination was withdrawn as part of a Senate deal to allow votes on the five current NLRB members. In June of this year, the U.S. Supreme Court in Noel Canning held that Block's recess appointment was invalid.

House Panel Discusses Potential Revision to Joint Employer Standard

A congressional subcommittee examined the merits and impact of the potential for franchisees and franchisors to be jointly responsible in cases alleging National Labor Relations Act violations.

Firings for Facebook Comments Unlawful, NLRB Rules

An employer violated the National Labor Relations Act by discharging two employees because of their participation in a Facebook discussion about their employer’s State income tax withholding mistakes, by threatening employees with discharge for their Facebook activity, by questioning employees about that activity, and by informing employees they were being discharged because of their Facebook activity, the NLRB has ruled. The Board also ruled the employer’s Internet/Blogging policy violated the NLRA. Triple Play Sports Bar and Grille, 361 NLRB No. 31 (2014).

Protected Concerted Activity on Facebook: The NLRB “Likes” This

The National Labor Relations Board (NLRB) continues to expand its interpretation of the forms of employee online behavior that constitute protected concerted activity under the National Labor Relations Act. Recently, in Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014), the NLRB held that the simple act of clicking the “like” button under a Facebook post may, in certain circumstances, constitute activity protected by Section 7 of the National Labor Relations Act (NLRA).

Unions Encourage Other Industry Sectors to Join Massive Fast Food Strike

As expected, thousands of fast food workers in over 100 U.S. cities have taken to the streets to engage in strikes, protests, and other acts of civil disobedience in an effort to push for a $15/hour minimum wage and to promote unionization. Organized by the "Fight for 15" movement and supported by the SEIU, the coordinated protests have reportedly resulted in multiple arrests and considerable business disruption. More significantly, there are indications these protests might expand to other industries.

Right to Union Representation Applies to Employer Referrals for Drug and Alcohol Tests, NLRB Rules

The National Labor Relations Board ("Board"), in its July 31, 2014 decision in Ralph's Grocery Co., 361 NLRB No. 9 (2014), ruled that so-called "Weingarten rights" – the general right of a unionized employee to request union representation in connection with an investigatory interview that could lead to discipline – apply when employees request representation after an employer refers them for a workplace drug and alcohol test. Based on this ruling, the Board overturned an employee's suspension and discharge, finding the actions were inextricably linked to the employee's request for representation after referral for a drug test, and ordered a make-whole remedy.

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.