In July the NLRB announced it was considering changing the contract bar doctrine, and would be accepting comments until September 22nd. The board recently announced it is extending the deadline for comments to October 21st. The contract bar prevents a union election in a unit “covered” by an in-force collective bargaining agreement, and most often comes up in decertification elections.
Employees and employers in the construction industry received a reprieve from the “stealth organizing” maneuver used by unions in that industry. In adopting new section 103.22, the board adopted the D.C. Circuit Court of Appeals Colorado Fire Sprinkler decision:
“Section 9(a) recognition in the construction industry must now be based upon a contemporaneous showing of majority employee support. The same showing of majority support that would suffice in non-construction industries now also suffices to establish recognition under Section 9(a) in construction-industry bargaining relationships.”
Rather than boilerplate language in project labor agreements that allowed the union to decide whether or not it had “majority support” for union representation, majority support will now have to be proven.
Another NLRB advice memo clarified that workers who advocate for police reform or other political causes not directly tied to the workplace aren’t protected by federal labor law. The board stated that workers’ political activity is protected “”if it relates in some demonstrable way to employee concerns over wages, hours, or working conditions.””
On the judicial front, the DOL took a major blow when a judge for the U.S. District Court for the Southern District of New York cut the heart out of the joint employer rule released in March. Judge Gregory H. Woods’ ruling vacates the agency’s new test for vertical employment, referring to when a worker enters an employment relationship with one company, such as at a staffing agency or subcontractor, but is economically dependent on another employer.
On a positive note, the First Circuit U.S. Court of Appeals upheld the NLRB ban on private-sector union use of non-member fees to help fund union lobbying efforts.
The House Committee on Education and Labor squared off against the NLRB, issuing an unprecedented subpoena demanding confidential and deliberative documents. According to board chairman John Ring, “The NLRB has been fully cooperative with the House Education and Labor Committee. The Committee knows it is not entitled to the documents it is demanding. No Board, regardless of political party, has allowed the disclosure of such deliberative matter-specific documents. This is a made-up controversy solely for political theatre.”
