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January 2017, Volume 23, Number 1

UFW, ALRB, DOL

The UFW supported a strike at Cedar Point Nursery on October 29, 2015 to protest unfair labor practices, prompting a charge from Cedar Point that the UFW violated the 1975 access rule that permits non-employee organizers to enter employer property and talk to workers about their rights to form or join unions. Cedar Point said that the UFW disrupted work, and asked a court to have the access rule declared unconstitutional.

ALRB. The Board issued five decisions in 2016, down from seven in 2015. Klein Management (Gourmet Trading) blueberry workers in McFarland, California voted 347 to 68 for the UFW in May 2016, and the employees of Hiji Brothers Inc. celery company and the Seaview Growers Inc. nursery voted in April 2016 to retain the UFW as their bargaining representative.

NLRB. The National Labor Relations Board in the 2015 Browning-Ferris Industries of California decision held 3-2 that a recycling plant operator and a staffing company were joint employers because they shared governance of the essential employment terms and conditions of workers provided by the staffing company. This new "indirect control" standard opened the door to making a franchisor such as MacDonald's that sets standards and provides payroll and scheduling technology to franchisees joint employers with restaurant owners.

President Trump is expected to appoint two members to the NLRB, giving Republicans a 3-2 majority and perhaps overturning Browning-Ferris, returning to the previous doctrine that joint employment requires the non-employer to exercise substantial control over employees, not just providing their employer with technology and broad guidelines. The fast-food industry is especially anxious to overturn Browning-Ferris.

DOL. The election of Donald Trump is likely to prompt major changes at DOL, including less aggressive data-driven enforcement by the Wage and Hour Division and fewer findings of broad joint employment. Andrew Puzder, CEO of the CKE firm that franchises Hardee's and Carl's Jr restaurants, was nominated to be Labor Secretary.

Puzder says that fast-food restaurants create millions of jobs, opposes a minimum wage increase from $7.25 an hour to $10.10, and argues that new overtime and paid sick leave laws that raise labor costs will speed automation. Puzder is especially opposed to the NLRB's joint employer doctrine that can make franchisors jointly liable for labor law violations of their franchisees.

The 2014 Workforce Innovation and Opportunity Act reauthorized 33 job-training programs, requires state workforce development agencies to create a unified job training plan, and adopts a standard performance metric to assess training outcomes. It is not clear how WIOA will change under Trump.