In the movie “Little Giants,” the type cast nerd devises a play he calls “The Annexation of Puerto Rico.” It turns out to be nothing more than the old fumblerooski – a play which, as run in the movie, is actually illegal (as any high school or college football official worth any credibility would tell you). Likewise, a Regional Director of the National Labor Relations Board (NLRB) recently reached a little too far into his bag of tricks when he decided that Northwestern University football players are employees.
Now that the National Labor Relations Board is at full staff – three Democrats and two Republicans – it has begun to act in earnest. In addition to starting to issue a litany of pro-union decisions, the NLRB “re-issued” its proposed new union election rules on February 6, 2014 for notice and comment. These rules were previously issued for the same purpose back on June 22, 2011, but after the Board adopted a portion of them in December of that year, the modified rules were struck down by federal courts on procedural grounds.
“It’s not a stretch to say that the National Labor Relations Board (NLRB) probably didn’t receive a whole lot of holiday cards from employers this last Christmas. However, employers aren’t the only ones who have taken some umbrage with the Board. Recently, this discontent has spread to a handful of administrative law judges (ALJs), who have expressed their frustration with the Board’s decision-making and liberties taken by the NLRB’s General Counsel (GC).
An available, but frequently underutilized, tool for employers combating employee absenteeism – including Family and Medical Leave Act (FMLA) abuse – is the call-off (call-in) policy. These policies, in whatever their precise form, typically require employees to report off work by a certain time prior to the start of their shift, and/or report to a specific person in a specific manner.
With the U.S. Supreme Court’s recent flurry of activity in the employment arena on discrimination and retaliation, the Court’s decision to hear one particular labor case seems to have gotten lost in the hullabaloo. And a ruckus, after all, is what one is bound to find whenever The Beatles are referenced.
In my last blog post, which can be found here, I observed that it seemed the NLRB had “jumped the shark” and lost its relevance. I suggested that one way to restore some legitimacy to the NLRB was to appoint true “neutral” Board members culled from a pool of neutral arbitrators. Alas, the President must not read this blog.
To wax nostalgic for a moment, recall the halcyon times when “Happy Days” was a sitcom favorite. Fonzie, Richie, Joanie, Ralph, Potsie and the crew congregated at Arnold’s Drive-In, drank milkshakes and listened to the jukebox. But alas, all good things must come to an end – or at least reach a point of ridiculousness that for all intents and purposes, constitutes its end. For Happy Days, that moment was the episode in which the Fonz, donning his leather jacket and swim trunks, jumps a shark tank with water skis. Although the show carried on for several more years, that episode marked the end of Happy Days as a generation knew it.
“[I]f it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.” – Through the Looking Glass
It is a challenge to convince a business person that unlike any other business contract, when a collective bargaining agreement (CBA) has expired, virtually all of its terms continue to be in effect. This is because under the National Labor Relations Act (NLRA) an employer cannot unilaterally change terms and conditions of employment, regardless of whether there is a contract or not. The NLRA mandates good faith bargaining before such changes can be made or implemented.
In a union election, it’s not just the CEO who needs to knock on doors – like in the picture below representing the famous 80’s record titled in this piece – and communicate with employees about whether or not to vote for union representation. The employer’s supervisors fulfill a pivotal role in educating employees about that, as well. The D.C. Circuit’s recent decision in Veritas Health Services, Inc. v. NLRB underscores the importance of employers properly identifying and classifying their supervisors before union activity occurs.