Round-up of Recent Notable Decisions by the NLRB
Nicholas Fortuna, October 7, 2015
The National Labor Relations Board has been actively changing long-standing legal precedent to be more employee friendly. Recently, the NLRB has issued a spate of high-impact decisions. All employers should take note of these decisions because its jurisdiction covers non-union as well as union workplaces.
Joint-Employer Status Test
On August 27, 2015 the NLRB made it easier to declare that separate entities are joint-employers, thereby making a company that does not directly employ the workers in question liable for the direct employer’s actions. In the case Browning-Ferris Industries of California Inc. the NLRB determined a staffing agency was a joint-employer with Browning-Ferris and declared that Browning-Ferris had an obligation to recognize and bargain with the staffing agency’s union. A new test to determine if separate entities are to be considered joint employers was established.
Under the new test for considering whether a joint-employer relationship exists, the board no longer requires the putative joint employer to exercise authority to control terms and conditions of employment. Now, indirect control is enough to establish joint-employer status.
Employers who use contract employees should review their agreements and practices to determine the extent to which they exercise control or even reserve the right to exercise control over contracted employees. Typically, employers reserve greater powers in their independent contractor agreements than they ever exercise. That excess of authority may lead to a finding of joint-employer status.
Successor Employer Rule Altered
This summer the NLRB held that a new employer subject to a state or local worker retention statute, which requires a new employer to continue to employ its predecessor’s workforce for a specific period of time, may be considered a successor employer under the National Labor Relations Act as soon as it assumes control of the business. As a result, the new employer can be held liable for the acts of the predecessor employer. Further, a new employer may have no choice but to recognize a union representing these predecessor employees.
The case at issue involved GVS Properties. Under New York City law a subsequent employer in the building service industry must retain its predecessor’s employees for a 90-day transition period, but previously was not considered a successor employer of those employees during the transition period. GVS was held to be a successor employee as soon as it took over operations from its predecessor and was required to bargain with its union.
Dues Deduction Upon Expiration of a Collective Bargaining Agreement
The NLRB ruled on August 27, 2015 that an employer may not unilaterally stop making dues deductions upon the expiration of a collective bargaining agreement. The Board reasoned that check offs were a mandatory subject of bargaining and should remain in place while the parties negotiate a new agreement. The Board explicitly overturned the Bethlehem Steel decision which held that an employer’s obligation to check-off union dues ends when its collective bargaining agreement expires. Until the recent decision, the Bethlehem Steel ruling was the law for 50 years. The decision overturning Bethlehem Steel came In The Matter of Lincoln Lutheran of Racine.
Virtual Organizing Permitted
The NLRB’s general counsel issued a memo detailing when an electronic signature would be acceptable to support showing of interest in a union representation case. According to the memo, the NLRB eliminated the requirement that a showing of interest in union representation be supported by actual signatures, making it easier to organize a drive for representation. Virtual organizing will allow unions to conduct campaigns more discreetly thereby limiting the employer’s opportunity to respond to an organizing drive.
The NLRB has shown little regard for precedent when trying to enhance workers ability to organize. We expect further strengthening of worker’s rights in decisions issued by the NLRB.