In two recent cases, the National Labor Relations Board distinguished between faculty members providing secular instruction and those providing religious instruction, in concluding that only those providing religious instruction were exempt from National Labor Relations Act coverage. In so doing, the Board applied its own test for religious exemption and expanded its jurisdiction beyond what the U.S. Supreme Court had deemed appropriate for a church-operated school.
Articles Discussing General Labor Law Topics And The NLRA.
NLRB Signs Off On Narrow Confidentiality Provision for Employee Reinstatement Agreements
In the recent case of S. Freeman & Sons, Inc., the National Labor Relations Board confronted the question of “whether an employer can require an employee to keep confidential the terms of a settlement agreement in exchange for reinstatement.” 364 NLRB No. 82 (Aug. 25, 2016). The Board answered in the affirmative, reversing an administrative law judge’s finding that such an agreement violated Section 8(a)(1) of the National Labor Relations Act.
NLRB Decides Charter Schools Are Private Corporations Despite Public Influence
In two separate cases decided on August 24, 2016, a divided National Labor Relations Board concluded that charter schools in Pennsylvania and New York are not political subdivisions within the meaning of Section 2(2) of the National Labor Relations Act and are subject to the Board’s jurisdiction. The practical effect of these decisions is that teachers at both schools may now unionize and enjoy the protections of the Act. The Board’s decision will certainly be revisited and challenged, however, as the Board explicitly stated that it was not announcing a bright line rule for all charter schools. Consequently, whether a particular charter school is subject to Board jurisdiction will be decided on a case-by-case basis going forward.
Non-Union, Specialty Lights Maker Must Return Work from Mexico, Federal Appeals Court Rules
The NLRB properly found a non-union employer unlawfully retaliated against striking employees and violated the National Labor Relations Act by transferring work from Illinois to Mexico, the federal appeals court in Chicago has ruled. Amglo Kemlite Labs., Inc. v. NLRB, 2016 U.S. App. LEXIS 15100 (7th Cir. Aug. 17, 2016). The Court enforced the Board’s order requiring the employer to return the transferred work to Illinois, among other things.
NLRB Finds Joint Employers Despite Speculative Future Relationship
Taking its new joint employer standard to new heights, the NLRB found that Retro, a construction company, and Green JobWorks, a temporary staffing agency, are joint employers based on speculative future projects. Retro Environmental, Inc./Green JobWorks, LLC, 364 NLRB No. 70 (Aug. 16, 2016).
Preventive Strategies Third Quarter 2016
A bulletin on employment, labor, benefits and immigration law for employers.
Sour Note – Musicians Are Employees, Not Independent Contractors, NLRB Tells Theater Company
A Regional Director of the National Labor Relations Board has ruled that a group of musicians were statutory employees under the National Labor Relations Act and, therefore, entitled to vote in an NLRB-conducted union representation election. In the Matter of Fiddlehead Theatre Company, Inc. and Boston Musicians Association et al., Case Number 01-RC-179597 (July 26, 2016). The decision comes on the heels of a holding by the U.S. Court of Appeals for the District of Columbia Circuit granting enforcement of an NLRB Order that musicians with the Lancaster Symphony Orchestra were employees, not independent contractors, and entitled to join the union. Lancaster Symphony Orchestra v. NLRB, No. 14-1247 (D.C. Cir. 2016).
Overruling Precedent, Board Finds Violation May Be Established Without Specific Unfair Labor Practice Complaint Allegation
In a decision having far-reaching implications, a National Labor Relations Board panel consisting of Chairman Mark Gaston Pierce and Members Kent Hirozawa and Lauren McFerran, (Member Miscimarra dissented) has overruled almost 10 years of NLRB precedent, deciding that a violation of the National Labor Relations Act could be found based on an employer’s failure to inform the union that it did not possess information the union requested, despite the absence of a specific unfair labor practice complaint allegation to that effect.
NLRB Requires Specificity in Management-Rights Clauses
When drafting a collective bargaining agreement, employers often insist on a management-rights clause. That clause reserves to the employer the right to take unilateral action, with respect to certain terms and conditions of employment without an obligation to bargain with the union about that action. In negotiating such clauses, employers try to find the right balance between specifically delineating the rights being retained, while keeping the language sufficiently broad to cover other (perhaps unanticipated) circumstances in which the employer might need to act unilaterally.
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 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.
Court Repudiates NLRB’s Award of Attorney’s Fees and Expenses for Their ‘Deterrent Effect’
The United States Circuit Court of Appeals for the District of Columbia has determined that the National Labor Relations Board lacks inherent power and the authority under Section 10(c) of the National Labor Relations Act to order an award of attorneys’ fees and litigation expenses to itself and a labor union.
NLRB Regional Directors’ Formal Unfair Labor Practices Complaints to be Reported to Federal Database
The National Labor Relations Board has stated that it will report to a federal database all unfair labor practice complaints issued by its Regional Directors beginning July 1, 2016, in order to comply with “Fair Pay and Safe Workplaces” Executive Order 13673 (which has been called the “blacklisting” executive order).
Good News for Employers: Implementation of the New Union “Persuader” Rules Has Been Delayed for Now
A district court in Texas has issued a nationwide injunction prohibiting the U.S. Labor Department (DOL) from implementing the new “persuader” rules that were set to take effect July 1, marking a significant victory for employers.
New DOL Rules Heighten Disclosure Requirements for Labor “Persuaders”
The U.S. Department of Labor (DOL) recently announced significant revisions to the “persuader” rules set forth in the Labor Management Reporting & Disclosure Act of 1959 (LMRDA). The new rules impose increased disclosure requirements for employers and any “labor relations consultants” they hire to provide direct or indirect “persuader” advice regarding unionization and other labor-related issues. While the current legal status of the rules remains in flux, employers should consider their potential disclosure responsibilities and related options.