By a 3-2 vote, the National Labor Relations Board (NLRB or Board) adopted a new standard to determine joint-employer status under the National Labor Relations Act (NLRA). Under the new test, two or more entities will be deemed joint employers if the putative joint employer and the employee have a common-law employment relationship and the putative joint employer possesses sufficient control over the essential terms and conditions of the employee’s employment. The Board jettisoned a long standing precedent that provided that an employer had to both possess and exercise authority over an employee’s terms and conditions of employment in order to be considered a joint employer, finding that the dual requirement significantly and unjustifiably limited when a joint employment relationship could be found. Browning-Ferris Indus. of Calif. dba BFI Newby Island Recyclery.For more details, see our client briefing.    

An NLRB administrative law judge (ALJ) ruled that OnTrac, a delivery company serving the western United States, violated the NLRA when a manager told an employee that the employee could be disciplined if he continued “badmouthing” managers in the parking lot. The manager made the statement during a Teamsters drive to organize worker at the company’s Commerce, Calif. facility. Express Messenger Systems Inc.    

The NLRB ruled that door-to-door solicitors working for a Minnesota nonprofit food organization are employees, not independent contractors. Although the workers were not required to work on particular days, did not have to notify the nonprofit of their plans, and were mostly unsupervised, the Board found that they were subject to the nonprofit’s control. Sisters’ Camelot.    

The U.S. Court of Appeals for the Ninth Circuit ruled that federal labor law preempts an Idaho statute that banned a practice known as “job targeting.” A lower court held that Idaho’s Fairness in Contracting Act permitted the state to ban programs in which construction unions used funds collected from employees to help union contractors compete with nonunion competitors. Writing for a three-judge panel, Judge Marsha Berzon held that most of the conduct Idaho sought to prohibit was protected by the NLRA. Idaho Building and Construction Trades Council, et al. v. Inland Pacific Chapter of Associated Builders and Contractors, et al.    

The NLRB rejected a Pennsylvania hospital’s argument that a ban on employees using its email system for solicitation was justified because the employees could become distracted and make medical errors by receiving emails about concerted activity during the workday. The Board applied its Purple Communications precedent and found that the hospital did not overcome the presumption that employees given use of work emails have a right to use it for engaging in concerted activities. UPMC.    

A United States District Court in Georgia held that the Labor Management Relations Act (LMRA) preempted a negligence claim against the International Longshoremen’s Association, Local 1414. The union had referred a forklift operator from its hiring hall to a stevedoring firm at the Port of Savannah, where he accidentally struck and killed Dianne Cobb. Cobb’s husband and son sued the union, asserting that, through a collective bargaining agreement, the union assumed a duty to exercise ordinary care when referring forklift operators for a job. The court dismissed the case holding that the claims turned on an interpretation of the collective bargaining agreement, and, thus, were preempted by federal labor law. The court also held that the plaintiffs did not identify any legal duty that the union had to provide a safe workplace; instead, that duty resided with the port employers.Cobb v. Longshoremen’s Ass’n Local 1414.    

Applying the NLRB’s new two-part religious exemption test for academic institutions, an NLRB Regional Director denied a union election petition to represent teachers at the Islamic Saudi Academy in Fairfax County, Va. Although a few schools have met the first prong of the test adopted in the Board’s Pacific Lutheran Universitydecision, none had yet met the second prong. The second prong requires that the institution “holds out the petitioned-for faculty members as performing a specific role in creating or maintaining the school’s religious educational environment.” Islamic Saudi Acad. v. Islamic Saudi Acad. Emp. Prof’l Ass’n.    

The United States Court of Appeals for the Seventh Circuit held that oil pipeline builder Michels Corp. was not required to continue contributing to a pension fund in the interim between when a collective bargaining agreement with the Teamsters expired and a new agreement was reached. The original agreement contained a requirement that the company continue contributing to the fund after the agreement expired and until a new contract eliminated the duty to contribute. After the agreement expired in 2011, an extension provided that the company could stop making contributions, and an entirely new contract was signed in 2012. The fund argued that Michels’ obligation to contribute continued until the new agreement was settled and the extension was not a new contract. The court disagreed, holding that the extension itself was a new agreement between the parties that ended Michel’s obligation to continue its contributions. Michels Corp. v. Central States.    

After 20 years of litigation, the NLRB ruled that two now-defunct Las Vegas casinos did not have to make a union whole after they unilaterally removed dues checkoffs after union contracts expired. The Hacienda and Sahara had contracts with Local Joint Executive Board of Las Vegas, Culinary Workers Union Local 226, and Bartenders Union Local 165 that expired in May of 1994, and each subsequently notified the union that they were ending deductions. The unions filed unfair labor practice charges alleging that the casinos violated the NLRA by taking unilateral action before good-faith negotiations reached a bona fide impasse. Hacienda Hotel, Inc.    

The NLRB held that a casino’s policies prohibiting employees from using camera phones to take photos on casino property and from using audio visual equipment unless authorized for business purposes violates the NLRA. Board Chairman Mark Gaston Pearce and Member Lauren McFerren held that photography can be a protected activity, and distinguished a case that found a hospital’s ban on photography was justified by the privacy interests of patients. The casino, in contrast, had not tied its policy to privacy concerns. Caesar’s Entm’t.    

The United States Court of Appeals for the D.C. Circuit held that a company violated the NLRA when it unilaterally withdrew recognition of a union. A majority of the employees in a bargaining unit at Anderson Lumber Co. signed statements that the company claimed established that the employees no longer wanted union representation. The court, however, affirmed the NLRB’s finding that at least some of the statements could be read to mean the employees no longer wanted to be represented by a union, rather than that the employees no longer wanted the union to represent their bargaining unit. Because Anderson did not demonstrate that the statements unambiguously showed that the employees no longer wanted the union as their bargaining representative, the company violated the NLRA by withdrawing recognition. Pac. Coast Supply, LLC v. NLRB.    

In two separate cases, the D.C. Circuit held that NLRB regional directors retained authority to supervise union representation cases during the period that the NLRB lacked a quorum because of recess appointments later deemed unconstitutional. The circuit court agreed with the NLRB’s contention that regional directors’ delegated authority derives from a 1961 statute notwithstanding the lack of a quorum. UC Health v. NLRB; SSC Mystic Operating Co. v. NLRB.    

A NLRB ALJ ruled that the UAW did not commit an unfair labor practice when one of its safety representatives reported an employee to management knowing that the employee could be fired. The charge stemmed from an altercation between the safety representative and a Fiat Chrysler employee who became aggressive after a discussion involving a work safety issue. The safety representative reported the employee while knowing that the employee could be disciplined, but the ALJ found that the report had nothing to do with union activity. Instead, the safety representative reported the employee because he was angry after the confrontation. Fiat Chrysler Auto Group, NV.    

An NLRB hearing officer recommended a new vote following a union’s election loss at Danbury Hospital in Connecticut. The hearing officer found that Western Connecticut Health Network created an impression that one employee-activist’s union activities were being monitored, and failed to provide up-to-date and accurate contact information for other employees. Danbury Hospital.    

An NLRB ALJ found that certain provisions of Verizon Wireless’ employee handbook placed unlawful restrictions on employees’ rights to communicate about their working conditions. The ALJ held that one provision restricting employee solicitation or distribution permitted Verizon to discipline employees for causing the company embarrassment over the Internet, and that it also contravened the Boards’ Purple Communications requiring employers to permit employees to use their work email even when not working. The ALJ approved separate provisions instructing employees not to disclose private information obtained from Verizon business records.Cellco Partnership.    

An NLRB ALJ found that TradeSource Inc., a construction staffing firm, violated the NLRA by discriminating against prospective employees based on their union affiliations. According to the ALJ, TradeSource never selected a candidate if they disclosed their union membership when applying for electrician positions using The ALJ ordered instatement and back pay for three individuals who filed complaints against TradeSource. TradeSource Inc.    

The NLRB found that a Massachusetts hospital system’s policy of providing unrepresented workers preference for positions at nonunion facilities violated the NLRA’ s ban on discrimination. Board Chairman Gaston Pierce and Member Kent Y. Hirozawa found that the policy penalizes employees and reduces career opportunities based on employees’ representational status. Southcoast Hospitals Group, Inc.    

An NLRB ALJ found that a cement company did not have a duty to notify and bargain with a newly certified union before it fired an employee. Relying on the Board’s 2012 Alan Ritchey decision, the Board’s General Counsel argued that the company had a duty under Section 8(a)(5) of the NLRA to notify and bargain with a new union before taking disciplinary action against a represented employee. However, the ALJ found that Alan Ritchey was not precedent based on the U.S. Supreme Court’s Noel Canning decision, and instead applied the Board’sFresno Bee precedent. Fresno Bee held that the NLRA does not create a bargaining obligation under the circumstances presented in the case. Ready Mix USA, LLC.    

According to the NLRB, an arbitration agreement that was a condition of employment was unlawful despite including an opt-out provision. Board Chairman Mark Gaston Pearce and Member Lauren McFerran held that the provision, which included class and collective action waivers, was illegal under the Board’s D.R. Horton decision despite giving employees 10 days to opt out of the separate dispute resolution system. On Assignment Staffing Servs.    

The NLRB also found that an employment arbitration agreement carving out all disputes that cannot be arbitrated as a matter of law violated the NLRA. The Board held that such a provision unlawfully would lead employees to believe that they could not bring unfair labor practice charges with the Board. Hoot Winc, LLC.    

The United States Court of Appeals for Fourth Circuit reversed the NLRB’s decision that a North Carolina adhesive tape factory had conducted illegal surveillance of union activity during a United Steelworkers campaign, while upholding the Board’s finding that the company engaged in unlawful interrogation of an employee and confiscated union flyers. It remanded the case to the Board to determine whether a new election was still warranted. Intertape Polymer Corp. v. NLRB.    

The NLRB has issued a guidance memorandum stating that unions and other petitioners for representation elections may submit electronic signatures in support of a showing of interest for a union election. Regional offices will now accept submissions including electronic signatures if the union or petitioner provides evidence that the employee signed the document. Such evidence includes the employee’s name, email address or social media account name, telephone number, the language to which the signer agreed, the date, and the name of the employer.