NLRB General Counsel’s Announced Policy Initiatives Why Non-Unionized Employers Should Be Very Concerned

On March 22, 2016, the National Labor Relations Board (NLRB) General Counsel, Richard Griffin, issued Memorandum GC 16-01. The memorandum instructs NLRB regions to submit cases and issues, which are listed in the memorandum as special concern or interest to the General Counsel, to the Board’s Division of Advice so the General Counsel’s office can provide centralized consideration before taking action. The memorandum sets forth a laundry list of subjects that the General Counsel considers the NLRB’s priorities through 2016. For non-unionized employers the list includes several initiatives in which the General Counsel is seeking to change and expand Board law. Weingarten Rights in Non-Unionized Settings. Since the Supreme Court first extended the right to representation to union employees in National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975), the NLRB has changed its position four times as to whether so-called "Weingarten rights" extend to non-union employees. In the most recent decision addressing whether "Weingarten rights" extend to non-union employees, the Board ruled that non-union employees do not have the right to have a co-worker present during an investigatory interview that might lead to discipline. See,IBM Corp., 341 NLRB 1288 (2004). The General Counsel has announced [...]

By | September 6th, 2016|Categories: Uncategorized|0 Comments

The Third Circuit Clarifies What Constitutes Individual “Concerted Activity” and Reminds the NLRB of the Appropriate Test for Determining Whether an Alleged Discriminatory Discharge was Lawful

In MCPc Inc. v. NLRB, 2016, --- F.3d ---, Case Nos. 14-1379 and 14-1731 (3d Cir. Feb. 12, 2016), the United States Court of Appeals for the Third Circuit affirmed the Board’s determination that anindividual employee engaged in protected concerted activity when he complained about shared work conditions to a member of  management, in the presence of other employees during a “team building” lunch; but remanded the case for further proceedings because the Board failed to apply the correct legal test (Wright Line)for determining whether the employee was discharged for that protected activity or whether he was discharged for his alleged misconduct, irrespective of any protected activity. The Court also found that the company violated the NLRA by maintaining an "overly broad" confidentiality policy. Background The case arose when asenior solutions architect (employee) of MCPc (employer) complained to management in a“team building” lunch about his and fellow employees workloads, as well as the need to hire more staff.  The employee further expressed how the salary ($400,000) paid to a recently hired executive could have been used to mitigate their workloads.  After the employee raised those concerns, his coworkers joined the discussion and expressed agreement. A week later, the Employer [...]

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The NLRB and Employee Handbooks

If your workplace is non-unionyou are likely wondering whether you need to worry about NLRB decisions regarding Employee Handbooks.  Consider this,any disgruntled employee or union organizer looking for a flag to wave can file an unfair labor practice charge with the National Labor Relations Board (NLRB) challenging employee handbook policies. What better way to get attention and credibility than to successfully challenge an employer’s handbook policy as unlawful?That is one good reason that all employers should make their best effort to conform their handbook policies to NLRB General Counsel’s(GC) guidance memorandum regarding employer rules issued in March 2015 and decisions of the NLRB involving employee handbook provisions.   A Little Context Here is a refresher for understanding the context in which the NLRB is looking at handbook rules. Section 7 of the National Labor Relations Act protects the rights of all non-management employees, union and non-union, to discuss and to complain about wages, hours, and other terms and conditions of employment. As a general rule, an employer violates Section 8(a)(1) of the Act through the maintenance of a work rule that would “reasonably tend to chill employees in the exercise of their Section 7 rights.” Lutheran Heritage Village–Livonia, 343 [...]

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NLRB Determination in Independent Contractor Case is Overruled by the U.S.Court of Appeals for 11th Circuit

In Crew One Productions, Inc. v. NLRB,--- F.3d ---, Case No. 15–10429 (11th Cir. Feb. 3, 2016), the United States Court of Appeals for the Eleventh Circuit vacated a decision by the National Labor Relations Board (NLRB) and concluded that stagehands were not employees of Crew One, Inc. (stagehand referral service), but independent contractors. Background Crew One Productions, Inc. (Crew One) referred stagehands to event producers for concerts, plays, sporting events, trade shows and various other productions and events. Stagehands completed a questionnaire about their skills and availability to be included in Crew One’s database. After submission of the questionnaire the stagehands attended a brief orientation and received an information packet but no physical exam, testing or training. The information included client policies and best practices, as well as procedure for accepting or declining work offered. Additionally, stagehands signed Independent Contractor Agreements with Crew One, completed a W-9 and provided their own tools and supplies. The stagehands reported exclusively to tour personnel except for reporting with Crew One to record their attendance at the beginning and end of the event for payment purposes. At the request of clients Crew One maintained a workers’ compensation insurance policy, paid by clients. [...]

By | September 6th, 2016|Categories: Uncategorized|0 Comments