Under the National Labor Relations Act, the National Labor Relations Board (the Board) has jurisdiction over the process by which employees decide whether to select union representation for their workplace. The Board will get involved in response to a petition filed by an employer or union requesting it to conduct a secret ballot election in which the employees vote for or against representation by a particular union. To encourage stability in labor relations and to avoid a merry-go-round on the question of whether employees wish to be represented by a union, the Board has established various rules setting forth the circumstances under which it will or will not conduct an election. The Election Year Bar Rule provides that the Board will not conduct an election in the same bargaining unit within one year of a previous election. The Contract Bar Rule provides that a written, signed collective bargaining agreement with an effective date will prevent the holding of an election for the duration of that agreement or up to three years; whichever time period is shorter.
A recent National Labor Relations Board decision – Circus Circus Casinos, Inc., 366 NLRB No. 110 (June 15, 2018) – has shed new light on what constitutes a unionized employee’s request for Weingarten assistance in an investigatory interview or disciplinary hearing. According to the long-established precedent set forth in NLRB v. J. Weingarten, Inc., an employee is entitled to assistance from a union representative when the employee reasonably believes that disciplinary action may result. This right to a union representative arises “only in situations where the employee requests representation.”
The National Labor Relations Board (“NLRB”) is presently wrestling with a particularly important legal issue that has nothing to do with union elections or unfair labor practices. The matter facing the NLRB is much more rudimentary than that – when should NLRB members be recused based upon a conflict of interest. Not to belabor the point (pun intended), but it is critical that NLRB members be able to rule on legal issues presented to them. If matters taken to the NLRB are frequently subject of conflict concerns, the system slows and the wheels of justice do not turn.
Towards the end of 2017, the National Labor Relations Board issued a flurry of important decisions that established more employer-friendly standards. Significantly, the Board overturned a decision that was used to strike down many employment policies the Board found unlawfully interfered with employees’ rights to organize. Under a standard set forth in Lafayette Park Hotel (1998) and later clarified in Martin Luther Home d/b/a/ Lutheran Heritage Village-Livonia (2004), a policy could be deemed unlawful if it could be “reasonably construed” by an employee to prohibit or chill employees’ exercise of their right to self-organize for collective bargaining or mutual aid.
The National Labor Relations Board (“NLRB”) recently overturned a 2004 decision that established a standard determining whether workplace rules, including those contained within employee handbooks, infringed upon workers’ rights under the National Labor Relations Act (“NLRA”).
The joint employer standard, which is used to determine the extent to which one employer may become liable for obligations of another, has long been a very politically-charged issue. It therefore comes as no surprise that less than one year into the Trump administration, the National Labor Relations Board (“NLRB”) has issued a ruling that in effect reverses a controversial decision of the Obama Board that made it easier to prove the existence of a “joint employer” relationship. In a 3-2 ruling, the NLRB overruled the Board’s 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“Browning-Ferris”), and returned to the pre–Browning Ferris standard that governed joint employer liability.
The National Labor Relations Board (the “Board”) continues its focus on overly-broad work policies – now in a non-union workplace – with a recent decision against Chipotle Mexican Grill. Although the Board found Chipotle violated the National Labor Relations Act (the “Act”) by (1) maintaining overly-broad social media and work policies, (2) ordering an employee to quit circulating a petition, and (3) firing the employee when he refused to do so, it found the employer did not violate the Act by asking the employee to remove certain tweets from his Twitter account. This case provides additional guidance on what is and is not permissible in work rules, particularly as they apply to social media posts by employees.
The claimant worked as a heavy equipment operator for various employers over a thirty-three year period, during which he was routinely exposed to loud noises from the machines he operated and from equipment being used around him. The claimant worked for his last employer for a total of forty hours. After he was subsequently diagnosed with hearing loss directly attributable to industrial noise exposure, the claimant filed a hearing loss claim for worker’s compensation benefits.
If you haven’t already heard, Pokémon Go, a virtual reality app created by Nintendo and Niantic, is taking the world by storm. According to Forbes, the app is about to surpass Twitter on the Android platform in daily active users, even though it was first released just a couple weeks ago in the United States and Australia and has not yet been made available worldwide. More and more people are getting in on the action, exploring real world landscapes with their smart phones in hopes of capturing virtual Pokémon appearing on their screen based on their phone’s clock and GPS location. It seems that no location is off limits, as Pokémon appear on or near both public and private property – even in bathrooms. As the Pokémon franchise motto commands, users “Gotta Catch ’Em All” at designated “Pokéstops” in their quest to become a renown Pokémon “trainer” who can out battle other users at local, virtual “Gyms.”