Decision and Order Remanding. The Charging Party in this case resigned her employment at the American Federation for Children, Inc. after an investigation found she created a “toxic atmosphere” by characterizing a new supervisor as a racist. At the time, the organization was sponsoring a former employee whose immigration status had changed for a work permit and holding her former position open to rehire her. The Charging Party had advocated for the rehire, but the new supervisor sought to fill the position with a different candidate. The Administrative Law Judge, applying Amnesty International (N.L.R.B. 2019), found that because it was on behalf of someone who was not a current employee, the Charging Party’s activity was not for “mutual aid or protection” and not protected. In reversing, the NLRB overruled Amnesty International and returned to its prior precedent, which held that concerted activity on behalf of non-employees is protected when its goal also serves the benefit employees.
Topics:
Collective Bargaining | Faculty & Staff
U.S. Department of Labor, Occupational Health and Safety Administration (OSHA) Notice of Proposed Rulemaking (NPRM) on the Worker Walkaround Representative Designation Process. The proposed rule would amend OSHA’s inspection procedures to permit employees to designate a third party to accompany the Compliance Safety and Health Officer if “good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (e.g., because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces or language skills).” The preamble of the NPRM clarifies that the third party might be a union representative, attorney, translator, or representative of a worker advocacy group.
Topics:
Collective Bargaining | Environmental Health & Safety | Faculty & Staff | Real Property, Facilities & Construction
Decision and Order adopting a totality of the circumstances standard for determining concerted activity. In March 2020, an employee of Miller Plastics Products, Inc. challenged his supervisor’s assertion that his employer was an essential, life-sustaining business and, days later, questioned the employer’s return-to-work procedures after another employee returned to the workplace two days after a suspected COVID exposure. Shortly thereafter, his employer terminated him for poor performance and policy violations. In affirming an Administrative Law Judge’s finding that the employee’s activity was both concerted and protected, the National Labor Relations Board overruled its decision in Alstate Maintenance, LLC (2019) and returned the standard in Meyers II (1986), which held that “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” In so doing, it held that “activity that at inception involves only a speaker and a listener can be concerted, ‘for such activity in an indispensable preliminary step to employee self-organization.’” Here, it held that the employee’s complaints were also protected because they sought to bring group complaints to the attention of management.
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Collective Bargaining | Faculty & Staff
National Labor Relations Board Direct Final Rule on Representation-Case Procedures. The direct final rule modifies the procedures by which the Board will administer cases concerning questions of representation. “This rule substantially rescinds the amendments by a rule of the Board promulgated in 2019 … and thereby substantially returns the representation case procedures to those that existed following the Board’s promulgation of a rule concerning representation case procedures in 2014.” In particular, the new rule will shorten the length of time required between an employee petition and an election to resolve a question of representation. The new rule is effective December 26, 2023.
Topics:
Collective Bargaining | Faculty & Staff
Decision and Order from the National Labor Relations Board (NLRB) adopting a new standard for evaluating when workplace rules and policies may be unfair labor practices. In its decision, the NLRB adopted a standard that holds that “overbroad workplace rules and policies may chill employees in the exercise of their Section 7 rights” under the National Labor Relations Act. In evaluating specific employer rules or policies, the Board will “interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer.” If the General Counsel can show that a rule would chill such an employee from exercising Section 7 rights, it is presumptively unlawful. However, “the employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.”
Topics:
Collective Bargaining | Faculty & Staff
National Labor Relations Board Decision and Direction of Election. Petitioners, the Southern Region Workers United, affiliated with the Service Employees International Union (SEIU), sought to represent a unit of all Ph.D. students at Duke University at its Durham and Beaufort, N.C. campuses who are working toward Ph.D. degrees and who are employed to teach undergraduate or graduate courses or labs or to provide research services. The N.L.R.B. Regional Director for Region 10 found that Ph.D. students in the proposed unit are employees within the meaning of Section 2(3) of the National Labor Relations Act. The Regional Director further directed that since the election is to be conducted during the summer it should be a mail ballot election.
Topics:
Collective Bargaining | Faculty & Staff
Memorandum from the General Counsel of the National Labor Relations Board (NLRB) re: Non-Compete Agreements that Violate the National Labor Relations Act. In the memo, the NLRB General Counsel outlines ways in which non-compete agreements may chill employees from engaging in protected activity and may, therefore, violate Section 8(a)(1) of the National Labor Relations Act. It provides that non-compete agreements may be justified in limited circumstances, such as when narrowly tailored to protect an employer’s legitimate business interest in protecting proprietary or trade secret information.
Topics:
Collective Bargaining | Faculty & Staff
Order & Opinion granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, the union representing groups of service employees at the University of Illinois Urbana-Champaign, brought a First Amendment challenge after the University’s Board Secretary denied their requests to speak during a public comment period of an upcoming Board meeting. The Secretary cited a rule that the Board does not hear presentations on issues under negotiation in the collective bargaining process. In denying the Board’s Motion to Dismiss, the court first held that the public comment period was a limited public forum, noting that requests to comment must be approved by the Board Secretary and that comments are limited to topics under the Board’s jurisdiction. It then held that though the rule was neutral as to viewpoint, it was not reasonable in light of the Board’s asserted purpose of avoiding unauthorized agreements outside of the collective bargaining process that would violate state labor law. In this, it noted both that it would be hard to forge an unauthorized agreement in an open meeting and that the danger is greater in direct email correspondence, which the Board had suggested as an alternative way for the public to address the Trustees. The court, however, dismissed plaintiff’s state Open Meetings Act challenge for lack of jurisdiction.
Topics:
Collective Bargaining | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech | Governance
Memorandum from the General Counsel of the National Labor Relations Board (NLRB) re: Suggested Manual Election Protocols. Noting the end of the federal COVID-19 public health emergency declaration, the General Counsel updated suggested protocols for in-person manual elections to include suggestions for managing the ongoing risks of COVID-19 transmission. Decisions on election procedures and safety protocols remain at the discretion of the Regional Director.
Topics:
Collective Bargaining | Faculty & Staff
