E-Blasts

The National Labor Relations Board’s General Counsel (“Board GC”) released a number of advice memorandums this week on various “gray areas” of federal labor law. Advice memos are used by the Board’s GC to guide local offices on National Labor Relations Board (“NLRB”) policy and may serve to instruct the offices on a certain strategy or course of action in a particular case. 

One of the memos released this week addressed whether employees can be discharged for making figurative threats of violence during a pre-shift meeting addressing workplace safety issues. In re: Williams-Sonoma Direct, Inc., the Company instituted a new workplace safety policy that allowed employees to walk into areas where forklifts were being operated as long as proper safety measures were taken. Two forklift drivers (“Charging Parties”), who had been staunch union supporters in a failed union organizing drive, objected to the new policy, stating that it would be dangerous because it is difficult to see when moving pallets around. Charging Parties asked if a “mirror miss,” an offense that occurs when an employee operating machinery gets too close to another worker, would be treated the same as hitting somebody under the new policy. When Charging Parties did not get a clear response, one of the Charging Parties stated that he might as well hit another employee if a mirror miss was going to count the same as a collision. The other Charging Party stated that in the event that he hit somebody he would hit them twice because a “dead man cannot talk.” The other employees at the meeting laughed at these comments.

Under the new California state cannabis regulations, all cannabis employers with 20 or more employees must provide a statement with the license application that the company will enter into, or demonstrate that it has already entered into, and abide by the terms of a labor peace agreement (“LPA”). An LPA is an agreement between a company and a union that prohibits the union and its members from engaging in picketing, work stoppages, boycotts, and any other economic interference with the company’s business. In exchange, the company agrees to allow the union to communicate with, and attempt to organize, the company’s employees.

The season has started. The UFCW Local 5 has begun filing Notices of Intent to Take Access (“NA”) with the ALRB. They have also taken the step of filing an accompanying Notice of Intent to Organize at the same time. This is the first filing this year with the ALRB:

The National Labor Relations Board (“Board”) has rolled back yet another of its anti-employer rulings from the Obama administration. Under the National Labor Relations Act (“NLRA”), unionized employers must refrain from making a unilateral change in employment terms unless the union first receives notice and the opportunity to bargain over the change.  However, under longstanding law, there was no duty to bargain over “changes” made pursuant to a past practice.  But in 2016, the Board in E.I. Du Pont De Nemours (“Du Pont”) held that even if an employer continues to do precisely what it had done many times previously—for years or even decades—taking the same actions constitutes a “change,” which must be preceded by notice to the union and the opportunity for bargaining.

The National Labor Relations Board (“NLRB”) continued rolling back anti-employer decisions by overturning its standard for reviewing the legality of employee handbook policies.  The new standard moves towards a balancing test that will take into account the handbook policies’ impact on employee rights and the employer’s reasons for maintaining the policy. 

In a much expected 3-2 decision, the National Labor Relations Board (“NLRB”) yesterday finally overruled the Board’s much-derided 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“Browning-Ferris”), that allowed for a finding of joint employment based upon a showing of “indirect control” or the ability to exert such control.  Instead, the Board returned to the principles governing joint-employer status that existed prior to Browning-Ferris.  Under the prior standard, in order to find joint employment, there must be a showing of “direct and immediate control” of the terms and conditions of employment.

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