Skip to main content

NLRB General Counsel Issues Memo to Urge Change to Standard When Evaluating Employer’s Involvement In Union Organization/Decertification

 

On September 4th, National Labor Relations Board (“NLRB”) General Counsel Peter Robb issued a guidance memo and urged the NLRB to create one standard when considering whether an employer’s assistance in union organizing violates the National Labor Relations Act (“NLRA”).

An employer violates Section 8(a) of the NLRA when it provides impermissible support to a union that is attempting to organize unrepresented employees.  Conversely, an employer violates Section 8(b) of the NLRA when it provides impermissible support to employees that are seeking to decertify or withdraw from a union.

NLRB precedent applies two different standards when considering what constitutes “impermissible support” under Section 8(a) and 8(b) of the NLRA.  When an employer is accused of impermissibly supporting a union’s organizing efforts, a “totality of the circumstances” standard is applied to consider if a violation of the NLRA occurred.  However, when an employer is accused of impermissibly supporting a decertification, a “more than ministerial aid” standard is applied to consider if a violation of the NLRA occurred.

It goes without saying that as currently applied, these two standards used to consider an employer’s behavior can yield inconsistent results for what constituted “impermissible support.”  The General Counsel’s memo has urged the NLRB to adopt the “more than ministerial aid” standard for both situations.

Whether the memo will spur change remains to be seen.  For the time being, however, the two different standards remain in place.


For a copy of the General Counsel’s Memo:  https://apps.nlrb.gov/link/document.aspx/09031d4583220da3

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

Happening Tomorrow: Connecticut’s Minimum Wage Increases

For those employers and employees alike in Connecticut, mark your calendars as tomorrow, the minimum wage rate increases in the state from $13/hour to $14/hour. This wage hike comes after Connecticut Governor Ned Lamont had signed Public Act 19-4 into law in 2019 which progressively raised the state’s hourly minimum wage rate every year for five years.  In fact, next year, the hourly wage rate will top out at $15/hour.  Beginning in January of 2024, the hourly wage rate will be indexed to the employment cost index. For additional information:   https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2022/06-2022/Governor-Lamont-Reminds-Residents-That-Minimum-Wage-Is-Scheduled-To-Increase-on-Friday
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more