Labor Issues Dominate NFIB Legal Center’s 2018 Agenda

Date: November 28, 2018

This past year brought about many significant developments in labor law —from the Supreme Court’s landmark decision in Janus v. AFMCE to the National Labor Relations Board’s recent memorandum clarifying what workplace policies employers can enforce. And in the past few months we’ve filed amicus briefs in five different labor cases that impact the small business community.

  • Caesars Entertainment Corporation – We urged the NLRB to overturn its prior decision in Purple Communications, which ruled that employers cannot prohibit employees from using company email to discuss unionization issues during non-work hours. The reality is that there is no easy way for employers to monitor when employees are reading or sending non-work emails. We argued that Purple Communications was wrongly decided under the NLRA and violated the Fifth Amendment.
  • Boeing v. Int’l Association of Machinists – Here we asked the NLRB to curb or disallow so called “micro unions,” the union practice of targeting smaller and smaller segments of a company’s workforce for unionization votes. This allows unions to cherry-pick a vote among a segment of workers believed most likely to support the union. Micro-union efforts also make it easier for unions to target small businesses.
  • International Assoc. of Machinists Dist. 10 v. Allen – NFIB supported Act 31, which made Wisconsin a Right to Work state, and we’ve defended the law against subsequent legal challenges. This case asks whether employers are permitted to honor an employee’s request to discontinue union dues withholdings after an employee has declared his or her intent to leave the union. We argued that Wisconsin law permits employers to honor this employee request.
  • UPS Freight – In 2014 the NLRB issued a rule that radically accelerated the union election process, and which was fundamentally unfair to employers. NFIB opposed this “ambush election rule” at the time and even challenged the rule in court. While this controversial rule was ultimately upheld there are many outstanding questions, and we filed an amicus brief in the UPS Freight case to push back on the most aggressive applications of the ambush election rule.
  • McDonalds Corporation – In another closely watched labor case, questions have arisen as to whether and when NLRB board members must recuse themselves. The concern is that partisan politicians and labor advocates have inappropriately alleged conflicts of interest in order to force recusal of Republican appointed board members in weighty NLRB cases. We joined a brief arguing the standard sought by the Democratic leaders violates the NLRA.

If you are interested in learning more about these issues, you may want to check-out our helpful guide to managing unionization efforts. Employers may also take interest in this webinar on maintaining a union-free business.

Related Content: Legal - Blog | Labor

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