National Labor Relations Board Region 10 Supervisory
Attorney Lisa Henderson gives an update on changes at the NLRB.
On April 14, 2015, the NLRB implemented new procedures to
speed up the processing of union representation cases to shorten the time
between receiving a petition and holding an election to decide on union
representation at a company.
Speaking to the Labor and Employment Relations
Association (LERA) Atlanta Chapter on Sept. 24, Ms. Henderson told the group that since the new procedures have begun,
the result has been shortened processing times decreasing times from 1/3 to
half compared to the old process. In July,
the average was 22 days, in August it dropped to 21 days. This compares to a
goal of 42 days on average before the new procedures.
The new procedures also narrow what goes into the
official record. At least one employer raised privacy issues concerning the
requirement to supply union officials with personal information about
employees, including email addresses, home addresses, and personal telephone
numbers. In that case, Region 10 considered this issue but felt that the right
of the union to have full access to employees outweighed any privacy concerns.
She did not mention that opponents of this decision have
offered a bill in Congress, the Employment
Rights Act (ERA), to counteract the new procedures.
The NLRB attorney discussed the NLRB’s recent ruling in the
Browning-Ferris Industries case where it found that BFI was a joint employer
with Leadpoint, the company that supplied employees to BFI to perform various
work functions for BFI, including cleaning and sorting of recycled products.
In finding that BFI was a joint employer with Leadpoint,
the Board relied on indirect and direct control that BFI possessed over
essential terms and conditions of employment of the employees supplied by
Leadpoint as well as BFI’s reserved authority to control such terms and
conditions.
This ruling overturned the decision of the NLRB region in
California, which had previously ruled that no joint-employer status existed at
the recycling plant.
Ms. Henderson indicated that the Board felt this new
ruling was a return to an older standard that the Board had moved away from
rather than the implementation of a new standard. In her opinion, the Board
felt that the BFI ruling brought it more in line with modern realities.
Finally, Ms. Henderson addressed NLRB guidance on deferral
to grievance arbitration and settlements contained in Memorandum GC 15-02,
which was meant to provide guidance to regional offices and the public. While
GC 15-02 is both lengthy and complex, it offers a new test for deferring to
awards rendered by labor arbitrators in cases also involving alleged violations
of Sections 8(a)(1) and (3) of the National Labor Relations Act and does raise
questions as to its implementation and how that might affect arbitrators
nationwide.
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