Dec. 15, 2016
By Maribeth Meluch, partner and labor lawyer with Isaac Wiles
Few can predict the ultimate repercussions of the 2016 U.S. presidential election, but the National Labor Relations Board is one organization that could face changes. For now, however, restaurant operators must take the time to learn how recent rulings from that board may affect their day-to-day employment decisions.
Some of these decisions are particularly noteworthy to restaurant execs because some believe they provide new benefits that favor union organization, including unions that might involve restaurant workers. Here are some of the recent changes resulting from NLRB rulings, as well as some guidelines on what restaurant leadership needs to know.
1. Employee elections simplify and expedite union organizing and impose more burdens on employers, including the following:
- Petitions to bargain may be filed electronically, the union may include its proof of support rather than waiting 48 hours. The union may directly serve the petition on the employer rather than waiting on the NLRB to do so, and the elections may be held in as little as 13 days from the filing of the petition.
- Pre-elections must be held within a shortened period— now eight days from the NLRB's Notice of Hearing. Meanwhile, within two business days of the service of the petition, employers must now post a Notice of Petition advising employees of their rights under the NLRA, as well as appropriate conduct during the campaign and the procedures for the election.
- Employers must first file a detailed Statement of Position stating whether the bargaining unit is appropriate or not, with any arguments, or be precluded from doing so at any pre-election hearing. Pre-election hearings will be limited to whether the bargaining unit is appropriate. Issues, such as which employees are eligible to vote or should be included in the unit, will not be decided until a post-election challenge.
2. The 25-day waiting period has been eliminated between the issuance of the decision and Direction of Election, and the holding of the election. And, within two days of that decision, the employer must file electronically with the NLRB and serve on the union a list of all eligible voters along with their addresses, as well as available personal cell and home telephone numbers.The definition of joint employer is redefined, with these noteworthy changes:
- It may subject franchisors to bargaining with franchisees' employeesand being named in unfair labor practice charges.
- The old rule determined joint employment based on whether an employer had "direct control"of the employee's terms, wages and conditions of employment. The NLRB recently changed course, ruling that two or more entities are joint employers of a single workforce if they exercise even indirect control.
- Now, the NLRB will evaluate whether an employer possesses sufficient control over employeesto qualify as a joint employer. The NLRB will consider whether an employer has exercised control over terms and conditions of employment, even indirectly, as through an intermediary, or even whether it has reserved the authority to do so.
- This decision will impact any restaurant owner who engages staffing services, leased or temporary employees.
- Franchisors that theoretically could exercise control over the terms and conditions of their franchisee's employees may find themselves at the bargaining tableor fending off ULP charges filed by franchisee employees.
3. Multi-employer bargaining units no longer require consent of the employers, including these changes:
- Employer consent will no longer be necessary for bargaining units that combine jointly employed and solely employed employees of a single-user employer. Instead, when determining whether a bargaining unit is appropriate, the NLRB will apply a community of interest analysis.
4. Challenges by a successor employer, its employees or rival union are now delayed by six months. This means:
- Restaurant owners who have acquired their companies and employees from a previous owner under a bargaining agreement are obligated to bargain with the union representing the previous owner's employees for at least six months prior to instituting any challenge.
This blog should not be taken as official legal advice.