Weekly NLRB Update from CUE

  • October 2, 2015

Keeping You Up-to-date on the NLRB

The National Labor Relations Board continues to be a weekly newsmaker when it comes to employers and the workplace. Here are some of the items we noticed this week here at CUE.



Former Board Member Johnson Joins Morgan Lewis

Harry I. Johnson, until recently a member of the US National Labor Relations Board (NLRB), will join Morgan Lewis on October 1 as a partner. Mr. Johnson adds to the deep bench of talent in the firm’s Labor and Employment Practice, and his presence will further enhance its capabilities to serve employers on labor-management issues.

Mr. Johnson is the featured keynote speaker at CUE on Tuesday October 14th at 8 AM when he will present “To the NLRB and Beyond!”.

The Protecting American Jobs Act proposed

Republicans in the Senate continued their efforts to alter some of the recent NLRB rulings impact on business as Sen. Mike Lee, R-Utah, introduced The Protecting American Jobs Act, S. 2084, would allow the board to conduct investigations, but it would hand the power to hear labor disputes over to federal courts.  You can read more about The Protecting American Jobs Act here.

Joint Employer Standard To Be Further Expanded?

There is lots of speculation by NLRB observers that the Board may soon issue another decision further revising the joint employer standard.  The Browning Ferris case made it far easier for a company and a staffing agency  be held to be joint employers, but the standard isn’t as clear for temporary employees.  The General Counsel for the NLRB has asked that the Board use a pending case, Miller & Anderson to overturn Oakwood Care Center. Such a change would permit temporary and permanent employees to organize in one inside the same workplace. Employers should keep an eye on this developing situation.  Hundreds of franchise owners visited Capitol Hill this week as part of an effort to get Congress to reverse these recent NLRB decisions.

Failure to Provide Required Available Employee Personal Information Costly

Earlier this month, an NLRB Hearing Judge ordered that an election be re-run after agreeing with objections that an employer had failed to comply with the new NLRB election rule procedures requiring that employers provide

As reported in an article in National Law Review, the new rule on an employer’s obligation to provide voter contact information provides:

Absent extraordinary circumstances, within two business days after the issuance of the direction of election, the employer must provide the Regional Director and the parties the list of the full names, work locations, shifts, job classifications, and contact information (including home address, available personal e-mail addresses, and available personal cellular or phone numbers) of all eligible voters ….

In the case of Danbury Hospital, No. 01-RC-153086 (Sept. 16, 2015), it appears as if the HR department relied exclusively upon one internal system to gather personal emails and phone numbers for the union.  When the union noted the very small percentage of numbers provided, they filed an objection and the Board investigated.  The facts showed that there were several other internal systems where such data was recorded and available to the employer, and as a result of this and some other facts, an election rerun was ordered.  Demonstrating due diligence in your information gathering for the Excelsior list is going to be a critical part of election preparation for employers.

NLRB  Taking on Portions of the Gig Economy

Politico reported that the NLRB once again ruled that independent contractors were employees under federal labor law in a case involving  home canvassers in Minnesota. “It’s a big win for the workers and their union, the IWW Sisters’ Camelot Canvass Union“. This case has on-going implications for companies using workers classified as independent contractors, and we will likely see the NLRB expand this concept.  Cases are under review against Uber and a number of other employers in this area.