I became the commissioner of my daughter’s county basketball league when she was nine.  No one else would “step up.”  The prior year, a player had slapped another player in the handshake line at the end of a game in retribution for rough play (by an 8-year-old girl!) and no game commissioner was there to intervene.  I decided to take on the role of cool-headed logistics manager: a non-coach who could make sure the game schedule was set, the rules were observed, and each game had a designated adult in attendance to avoid bad sports behavior (whether by players, coaches or parents).  But this “cool headed commissioner” is ripping mad at the NLRB (or, to be more precise, the NLRB majority) for concluding that junior and senior high school lacrosse referees are employees and not independent contractors entitled to unionize!
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NLRB logoFor several years we have watched the National Labor Relations Board take ever-more aggressive positions that (in our view) ignore the realities of the modern-day workplace and business operations (or really, common sense). Think handbook cases, Facebook cases, email cases….. you get the picture.  Republican members of the Board have vehemently protested the actions of the Democratic majority, to no avail. So with the change to a Republican administration and the recent appointment of the sole Republican Board member – Philip Miscimarra – first to the Acting Chairman and now regular Chairman role, we had great expectations that the Board would return to a more balanced (i.e. sane) perspective.
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FootballBueller?…Bueller?…Bueller?…

Griffin?…Griffin?…Griffin?….

Readers of this blog likely know the first reference. But, how about the second? Give yourself a hand if you said “Richard F. Griffin, Jr., General Counsel (GC) of the National Labor Relations Board.” GC Griffin, a holdover from the Obama administration, decided last week that the new Trump administration was not going to have all the fun in Washington, D.C.  What is it that GC Griffin did, you ask? Well, he decided that your favorite running back from Stanford, or that dynamic wide receiver from Northwestern, are employees under the National Labor Relations Act, entitled to full protection under the Act!
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question-markFollowing my post last week on the EEOC’s latest pronouncement on independent contractor status, it seemed appropriate to follow up with the National Labor Relations Board’s most recent activity on this issue. The Board’s Office of the General Counsel (OGC) released an advice memorandum in which it first reviews the Board’s test for independent contractor status (which is, of course, different than that of the EEOC) and then goes on to assert that the misclassification of employees as independent contractors is a violation of the National Labor Relations Act.  (Curiously, it appears that the OGC actually issued the memo in a pending case, Pacific 9 Transportation Inc., back on December 18, 2015, but it only recently released it to the public on August 26, 2016. I suppose that the Board realized that this is an issue of significant interest to employers!)
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downloadAs I’ve made clear in past posts, I am increasingly frustrated with the current National Labor Relations Board’s clearly pro-union, anti-employer approach. I find many of their decisions to have little or no relationship to common sense or logic. So I found a concurring opinion by Judge Patricia Millett in the recent case of Consolidated Communications, Inc. v. National Labor Relations Board to be of particular interest, as she expresses her “substantial concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes.” Judge Millet goes on to say, “These decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace.” (!!!!)
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The National Labor Relations Board (NLRB) continues on its journey to try to take over the world. On January 13, 2016, the Board issued a Notice and Invitation to File Briefs in Columbia University, a case that involves Graduate Workers of Columbia-GWU, UAW (the Petitioner), who seeks to represent a unit of students who assist faculty with teaching, research, and other miscellaneous duties.

Specifically, the Board asked the parties and amici to address, among other issues, whether the Board should modify or overrule its 2004 decision in Brown University, in which it held that graduate student assistants who perform teaching services at a university in connection with their studies are not statutory employees within the meaning of Section 2(3) of the National Labor Relations Act (Act). Specifically, the Board found the teaching activities are so closely related to the students’ degree requirements that the students and the University are engaged in more of an educational relationship, rather than an economic one. That meant the Act did not cover those graduate student assistants, and they could not unionize. Notably, Brown University was a reversal of the NLRB’s position in its 2000 New York University case, in which it had held that graduate assistants are employees.  (Also worth noting, New York University was decided by in a Democratic administration, and Brown University in a Republican one).
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