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Posts Tagged ‘National Labor Relations Board’

NLRB Tells Appellate Court that Racial Harassment by Picketers is OK

Posted on: November 1st, 2017

By: Paul H. Derrick

The National Labor Relations Board is urging the full Eighth Circuit Court of Appeals not to review a 2-1 panel decision that found a union picketer’s racially derogatory comments toward black replacement workers to be protected speech that could not be used as grounds for his termination. Although admitting that the picketer’s comments to the black workers were offensive, the NLRB stated that the comments simply were not vile enough to lose the protections of the National Labor Relations Act.

The comments in question included the picketer yelling “Did you bring enough KFC for everybody?” toward a van carrying replacement workers and asking if other picketers could “smell fried chicken and watermelon.” Based on those and other comments, the employer elected not to return the picketer to work after its labor dispute with the union ended. The union filed a grievance on the picketer’s behalf, and an arbitrator ruled that the company had just cause to fire him.  An NLRB administrative law judge and the NLRB itself disagreed, however, and ordered that the worker be rehired and given back pay and benefits.  According to the NLRB, the racially derogatory remarks, although directed at minority workers confined in a vehicle that was crossing a hostile picket line, were non-violent and non-threatening offhand comments that would not objectively be perceived as coercive or intimidating.  In other words, they merely reflected the picketer’s animal exuberance.

In its initial appeal to a three-judge panel of the Eighth Circuit, the company argued that bringing back the picketer would conflict with its obligation under Title VII of the Civil Rights Act to eradicate racial harassment in the workplace. In a split decision, two of the panel’s judges ruled that the racial taunting did not create a hostile work environment, was not violent in character, did not contain any overt threats to the replacement workers, and was not accompanied by acts of physical intimidation.  The third judge ruled that the picketer’s termination should stand, reasoning that no employer in America can be required to allow racial bigotry in the workplace.

Whether the NLRB will prevail in its position that picket line racial harassment is an exception to the general rule that such workplace misconduct is absolutely prohibited remains to be seen.  In the meantime, employers should be aware that the NLRB has taken this same position many times over the years, although not all courts agree with it.  Until the U. S. Supreme Court gives more definitive guidance on the issue, there likely will be continued disagreement well into the future.  These cases generally rise and fall on their own unique and specific facts, so there is no one-size-fits-all answer as to how a particular case will be seen by the NLRB or the courts.

If you have any questions or would like more information about this or any other labor law issue, please contact Paul H. Derrick at [email protected].

 

Updates on the “Joint Employer” Standard

Posted on: October 10th, 2017

By: Tim Holdsworth

More than two years have passed since the National Labor Relations Board (“NLRB”) handed down its new and controversial joint employer standard in Browning-Ferris Industries of California, 362 NLRB No. 186 (August 27, 2015). As you may recall, that decision greatly expanded the standard under which an entity could be found as a joint employer under the National Labor Relations Act (“NLRA”). In departing from its own well-established standards, the NLRB announced that they will no longer require a joint employer to possess and exercise authority to control employees’ terms and conditions of employment, but instead will find sufficient control if the entity merely reserves this authority. They also announced they will no longer require the employer’s control to be exercised directly and immediately. Instead, the NLRB declared that control exercised indirectly, such as through an intermediary, can establish the requisite control.

The U.S. Department of Labor (“DOL”) adopted a similar standard for who it considered a “joint employer” under the Fair Labor Standards Act (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act shortly thereafter.

Neither of these controversial steps has fared well. The Browning-Ferris decision has been under attack in courts, while the DOL rescinded its guidance earlier this year under new Labor Secretary Alex Acosta.

Legislative efforts also have been made to give further guidance to businesses that have struggled with the uncertain and convoluted joint employer scheme. Recently, the U.S. House of Representatives Education and Workforce Committee approved a bill that would amend both the NLRA and FLSA to require that a company exert “direct, actual and immediate” control over workers to be considered an employer.

We will continue to monitor this legislation and provide any updates. For now, however, employers need to know that the Browning-Ferris standard is still in effect.

If you have any questions about federal, state, or local wage and hour laws, please contact Tim Holdsworth at tholdsworth[email protected] or any of the attorneys in FMG’s Labor & Employment Law Section.

NLRB Claims Franchisor and Franchisees are ‘Joint Employers’ – Is McDonald’s Just The First?

Posted on: August 19th, 2014

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By: Bradley T. Adler and Frank H. Hupfl, III

In a surprising departure from established Board precedent, the National Labor Relations Office of the General Counsel announced on July 29, 2014 that it had authorized the NLRB’s Regional Directors to issue 43 unfair labor practice complaints against McDonald franchisees and determined that their franchisor, McDonald’s USA, LLC, could be named as a joint employer.  The announcement comes as a shock to the franchise community and marks a startling conflict with roughly thirty years of established franchise law.

Under the traditional franchisor/franchisee relationship, a franchisee is an independent entity from the franchisor and is not viewed as a joint employer with the franchisee.  The NLRB’s recent announcement seeks to shake up that precedent.

With roughly 90% of McDonald’s more than 14,000 restaurants owned and operated by franchisees, the NLRB’s recent announcement could have significant ramifications for the fast-food company.  In a recent statement, the NLRB said it had received 181 complaints of unfair labor practices since November 2012 alleging that McDonald’s franchisees or their parent franchisor had violated employees’ rights to engage in protected activity under the National Labor Relations Act.  Of the 181 complaints, the general counsel’s office determined that 43 of the cases had merit.  The remaining complaints are either pending or were found to be meritless.

Since the NLRB’s announcement, McDonald’s and other franchise associations have issued statements opposing the general counsel’s determination and warning of the potential devastating effects the NRLB’s holding could have on the franchise world.  We will continue to keep you updated on this novel development.

NLRB Provides Guidance on Investigation Confidentiality Policies

Posted on: April 22nd, 2013

By: Anthony Del Rio

silenceIn July 2012, the National Labor Relations Board (“NLRB”) ruled that a blanket policy requiring confidentiality during all internal workplace investigations violates employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”). The ruling represented a somewhat conflicting position, because one of the primary reasons confidentiality provisions were put in place was to protect employees and witnesses from retaliation.

This past week, the NLRB released an a memorandum that provides guidance on what it considers permissible confidentiality policies in workplace investigations. The NLRB’s memo suggests that, rather than using language that requires all investigations mandate confidentiality, policies should use the following language:

[Employer] may decide in some circumstances that in order to [protect the integrity of an investigation and to protect witnesses from harassment/retaliation], we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Confidentiality in employer investigations is key in order to protect both the employer and the employee. For that reason, a confidentiality provision that has actual force to it is necessary. However, at the same time, avoiding the scrutiny of the NLRB is also very important. For that reason, employers should consider reviewing and modifying their current policies to conform with the language suggested in the NLRB’s memorandum.

Furthermore, as we suggested in our prior coverage of this issue, before prohibiting employees from discussing pending investigations, employers must consider whether there is a real need for confidentiality based on risks of witness coercion, destruction of evidence, or other legitimate business concerns. Blanket prohibitions against discussion of internal investigations without this type of individualized assessment will likely violate Section 7 of the NLRA.