Featured in #WorkforceWednesday: As businesses across the United States open up, workers may increasingly turn to unions to help support their safety. Employers should take steps to properly prepare for this resurgence in union activity. Attorney RyAnn Hooper explains more.
Employment Law This Week®: State Legislation Heats Up, NLRB Overturns Precedent, SCOTUS Term Ends
This Employment Law This Week® Monthly Rundown discusses the most important developments for employers in July 2019. Both the video and the extended audio podcast are now available.
This episode includes:
- State Legislation Heats Up
- NLRB Overturns Another Long-Standing Precedent
- SCOTUS October Term 2018 Wraps Up
- Tip of the Week: How inclusion and trust
Take 5 Newsletter: A Full Menu of Potential Legal Issues for Hospitality Owner/Operators
In the new issue of Take 5, our colleagues examine important and evolving issues confronting owners, operators, and employers in the hospitality industry:
- Avoiding “Perfectly Clear” Successor Status When Acquiring a Property with a Union Workforce Now Requires Greater Vigilance
Fifth Circuit: Outsourcing Violated the NLRA – Employment Law This Week
Featured on Employment Law This Week: The U.S. Court of Appeals for the Fifth Circuit backs the National Labor Relations Board (NLRB) in an outsourcing dispute.
The NLRB found that a management company violated the National Labor Relations Act when it outsourced the cleaning staff of a hotel that it managed. The NLRB found evidence
Fifth Circuit Pays Special Deference to NLRB’s Determination that Hotel Management Company Acted with Anti-Union Animus in Outsourcing Housekeeping Department
A recent decision of the U.S. Court of Appeals for the Fifth Circuit illustrates the potential pitfalls of outsourcing in the face of a union campaign, as well as the steep hurdle employers face in overturning a decision of the National Labor Relations Board (“NLRB”). In Remington Lodging & Hospitality, LLC v. NLRB, the
Court Refuses to Dismiss Challenge to OSHA Practice Allowing Unions to Accompany OSHA Workplace Investigations
A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility
Employees at a Non-Union Worksite May Select a Union Representative for an OSHA Inspection
By Paul H. Burmeister and Eric J. Conn
On April 5, 2013, OSHA published a formal Interpretation Letter (dated February 21, 2013) addressing whether, pursuant to OSHA’s regulation at 29 C.F.R. 1903.8(c) (Representatives of Employers and Employees), employees at a worksite without a collective bargaining agreement may authorize a person affiliated with a union or community organization to act as the employees’ representative during proceedings under the OSH Act, including compliance inspections. OSHA responded affirmatively.
29 C.F.R. 1903.8(c) provides:
“The representative(s) authorized by employees shall be an employee(s) of the employer. However,
if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”
OSHA’s April 5, 2013 Interpretation Letter clarified its interpretation of the types of non-employees it considers to be “reasonably necessary to the conduct of an effective and thorough physical inspection,” by stretching the meaning beyond what has historically been understood to include only individual’s with relevant technical expertise to aid in the inspection, such as those listed as examples in the language of the regulation; i.e., “an industrial hygienist or a safety engineer.” This interpretation moves away from that commonsense reading, and expressly invites the involvement of non-technical union representatives, even from unions who have not been elected to represent the workforce.
OSHA broke the question down into two parts. First, OSHA stated affirmatively that the OSH Act recognizes the role of an employee representative to represent employees’ interests in enforcement related matters. Specifically, the employee representative, OSHA asserts, need not be a co-worker at the worksite. The employee representative could include any person (including community organization members) who acts in a bona fide representative capacity.
Second, OSHA clarified that non-union employees may have a union representative act as their employee representative, under Section 8 of the OSH Act. However, the union representative must be duly authorized by the employee to act as his representative. 
OSHA also noted under 29 CFR § 1903.8 that OSHA may exercise its discretion in allowing a non-employee representative, but generally would allow it when the non-employee representative may make a positive contribution to the inspection. For example, the letter specifically cites non-employee representatives who are skilled in evaluating similar working conditions or are fluent in another language that may be helpful.
Continue Reading Employees at a Non-Union Worksite May Select a Union Representative for an OSHA Inspection
President Obama Nominates Three Members to National Labor Relations Board – But Will the Senate Confirm?
by: Adam C. Abrahms, James S. Frank, Kara M. Maciel, and Steven M. Swirsky
President Obama has taken action designed to bolster the National Labor Relations Board’s continuing move to bolster unions and take the National Labor Relations Act further into non-union workplaces. On April 9, 2013, President Obama announced his plan
The NLRB–Organizing by Pop-Up Unions in Break-Out Units
By: Allen B. Roberts
I wrote the February 2013 version of Take 5 Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green. In it, I discuss an alternative view of five topics that are likely to impact hospitality employers in 2013 and beyond. One topic involved the potential for
NLRB Deflates Hotel Bel-Air’s Severance Agreements to Union Employees
By Paul Burmeister
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The National Labor Relations Board (“NLRB”) has ruled that negotiations between the Hotel Bel-Air and UNITE HERE Local 11 were not at impasse when the employer implemented its last, best final offer, which included severance payments to union employees. Hotel Bel-Air, 358 NLRB 152 (September 27, 2012). The NLRB