Search form

  • April 12, 2019
  1. The National Labor Relations Board (NLRB) ruled that a private-sector union may not require non-member objectors (known as Beck objectors) to pay for its political lobbying expenses. United Nurses and Applied Professionals (Kent Hospital), 367 NLRB No. 94 (Mar. 1, 2019). Several of the employer’s workers had resigned their union memberships and objected to the assessment of dues and fees for activities unrelated to the union’s representation of employees. While the employees had paid reduced dues and fees, the amounts they were assessed included union lobbying expenses. One of the employees filed an unfair labor practice charge at the NLRB alleging the inclusion of such expenses was unlawful. The NLRB found the lobbying expenses could not be charged to the non-members because the expenses were not related to “collective bargaining, contract administration, and grievance adjustment,” the only categories of expenses that may be charged to non-members under the U.S. Supreme Court’s decision in Communications Workers of America v. Beck, 487 U.S. 735 (1988).

     

  2. NLRB Chairman John Ring wrote to members of the U.S. House of Representatives to dispel rumors that the Board was “outsourcing” its review of public comments on the NLRB’s proposed joint-employer rule. Ring stated in a March 22 letter to the leaders of the Committee on Education and Labor and the Subcommittee on Health, Employment, Labor, and Pensions that the NLRB had not, and would not, outsource its review of the public comments. (However, the NLRB is outsourcing categorization of the comments.) Ring also reported that the response to the proposed rule was “outstanding,” with more than 29,000 comments received. If adopted as the final rule, the proposed rule will overrule Browning-Ferris and joint-employer status will be found only where two entities actually share or codetermine employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.

     

  3. The Department of Labor (DOL) announced a proposal to limit when it will find companies to be joint employers under the Fair Labor Standards Act (FLSA). Under the proposal, the DOL would find joint employer liability under the FLSA only where both companies hire, fire, and supervise employees, set their pay, and maintain employment records. The proposal likely will exclude as joint employers many franchisors and companies that hire contract labor. The DOL’s proposal will require a 60-day public comment period (ending June 10, 2019) before DOL can take the next step toward finalization.

     

  4. The NLRB General Counsel’s office is encouraging its regional officials to rely less on investigative subpoenas in unfair labor practices investigations. In a March 13 memorandum to NLRB Regional Directors (RD), NLRB Associate to the General Counsel Beth Tursell instructed officials that, in their discretion, they may rely less on investigative subpoenas in unfair labor practice cases, as a way to resolve more quickly, and with less litigation, the underlying unfair labor practice charges. Tursell stated that RDs could note a charged party’s lack of cooperation as an alternative to issuing subpoenas, which could result in an adverse inference being made against that party. However, as Tursell stated in the memorandum, “whether any failure to cooperate is significant will be dictated by the particular facts and circumstances of the case.” See Memorandum OM 19-05, “Noting Respondents Failure to Cooperate with ULP Investigations in Subsequently-Issued Complaints.”

     

  5. The U.S. Supreme Court declined to hear an appeal asking the Court whether a hospital employer violated the National Labor Relations Act (NLRA) when it restricted off-duty workers from displaying picket signs on hospital property. Capital Med. Ctr. v. NLRB, et al., No. 16-1320 (D.C. Cir.), cert. denied, No. 18-608 (U.S. Apr. 1, 2019). The U.S. Court of Appeals for the District of Columbia Circuit had upheld a decision of the Obama NLRB that the employer could not prohibit workers from picketing on hospital property without demonstrating the workers’ actions affected patient care. The Supreme Court’s decision left in place the NLRB’s and Circuit Court’s rulings, which provided employees greater leeway to engage in protected concerted activity. However, that likely is not the last word on the subject; NLRB General Counsel Peter Robb has signaled he would like to argue to the NLRB that Capital Med. Ctr. should be overruled. See Memorandum GC 18-02, “Mandatory Submissions to Advice” (Dec. 1, 2017).

Please contact a Jackson Lewis attorney if you have any questions about these developments.

©2019 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

See AllRelated Articles You May Like

June 25, 2019

Scabby the Rat Could Face Extermination under Labor Board General Counsel’s Recommendation

June 25, 2019

A recent Advice Memorandum from the National Labor Relations Board’s (NLRB) General Counsel’s office (GC Office) has recommended that the Board engage in pest control. As background, federal labor law strictly regulates “secondary” activity by unions, including protests against “neutral” businesses with whom there is no dispute. The... Read More

June 19, 2019

Top Five Labor Law Developments for May 2019

June 19, 2019

The National Labor Relations Board (NLRB) has announced its rulemaking agenda for the coming months. The Board stated that it plans to engage in additional rulemaking in the following areas: 1) representation case procedures (governing union elections); 2) standards for “blocking charges” (governing when unfair labor practice charges... Read More

June 3, 2019

Labor Board to Revisit Right of Graduate Students to Unionize

June 3, 2019

The National Labor Relations Board (NLRB) has announced that it will propose rules on the standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 153(3)), with... Read More

Related Practices