Last week, a federal appellate Court upheld a National Labor Relations Board (“NLRB”) ruling that a Burger King franchisee violated the National Labor Relations Act (“NLRA”) when it refused to hire an employee because the employee had previously engaged in union activity. The franchisee purchased a Burger King franchise in 2015 where employee Terrance Wise (“Wise”) had worked since 2012. During his employment at Burger King, Wise had taken a leadership position with the Worker’ Organizing Committee, which advocated for fast food workers to earn $15 per hour. Wise was also involved in unfair labor charges brought against the franchise at which he worked. After the sale was completed, Burger King rehired the general manager and several other employees but did not rehire Wise. Wise then filed charges with the NLRB.

On June 7, 2017, Secretary of Labor Alexander Acosta announced that the Department of Labor (“DOL”) was withdrawing two informal guidance letters that it previously issued on joint employment in 2015 and 2016 during the Obama administration. These guidance letters expanded the “joint employer” doctrine - which sets forth the conditions for when one company can be liable for employment and civil rights violations made by another company - stating that an employer who “indirectly” controls another employer’s workplace could be liable. This “indirect” standard significantly expanded an employer’s joint employer liability, and created confusion for employers as to what indirect control meant.

An employer would normally be justified in firing an employee who, during a rest break, posted on Facebook that his supervisor was a “NASTY MOTHERF[@#$]ER,” “F[@#$] his mother and his entire f[@#$]ing family!!!! What a LOSER!!!!!” But what if the Facebook post at issue also included the following language, “Vote YES for the UNION!!!!!!!”?  Is the call to unionize sufficient to insulate the employee from termination?  Shockingly, the Second Circuit Court of Appeals, in NLRB v. Pier Sixty LLC, found that under the circumstances the employee’s termination violated the National Labor Relations Act (“NLRA”).

Last week, a United States Appeals Court heard oral arguments regarding the National Labor Relations Board’s (“NLRB”) expanded definition of joint employer in the Browning-Ferris case. In that case, the NLRB expanded its previous standard, which required “direct and immediate control” over terms and conditions of employment to be considered a joint employer, to a more lax rule of “indirect control.” You can read more about the NLRB’s joint employer rule here and here.

On Thursday, February 23, 2017, the Agricultural Labor Relations Board (ALRB) in the Salinas region conducted the election for the following petitions regarding representation of the workers for Mushroom Farms, Inc., in the Watsonville area:

Thursday, February 16, 2017
• 2017-RD-001-SAL – Decertification of United Food and Commercial Workers, Local 5 (UFCW)

Tuesday, February 21, 2017
• 2017-RC-001-SAL – Certification of United Farm Workers of America (UFW)

The tally of ballots from the election was:

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