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
