367 NLRB No. 75
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) affirmed the Acting Regional Director’s finding that SuperShuttle’s franchisees, who operate shared-ride vans for SuperShuttle, are excluded from the Act’s coverage as independent contractors and accordingly dismissed the representation petition at issue. In doing so, the majority overruled FedEx Home Delivery, 361 NLRB 610 (2014), to the extent that it impermissibly diminished the significance of entrepreneurial opportunity in the Board’s independent-contractor analysis and revived an “economic dependency” standard that Congress explicitly rejected with the Taft-Hartley amendments of 1947. The majority returned to the common-law agency test, as required by the United States Supreme Court. See NLRB v. United Insurance Co. of America, 390 U.S. 254 (1968).
Applying the common-law test, the majority found that the franchisees’ ownership of the principal instrumentality of their work, the method of their compensation, and their significant control over their daily work schedules and working conditions provide the franchisees with significant entrepreneurial opportunity. The majority further found that because those factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, outweigh the factors supporting employee status, the franchisees are independent contractors.
Dissenting, Member McFerran disagreed with the majority’s decision to overrule FedEx, supra, 361 NLRB 610, and asserted that the FedEx Board did no more than permissibly refine the way that the Board would apply the common-law agency test, as the Board may consider factors beyond the non-exhaustive list of common-law factors. Further, Member McFerran argued that the majority’s treatment of entrepreneurial opportunity as a “sort of super-factor” is contrary to the common-law agency test and the Supreme Court’s decision in United Insurance because if the common-law agency test has a core concept, it is not entrepreneurial opportunity but rather control. Additionally, she argued that even under the Board’s pre-FedEx precedent, she would find that SuperShuttle failed to establish that the franchisees are independent contractors.
Alstate Maintenance LLC,
367 NLRB No. 68
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(1) by discharging an employee for engaging in alleged protected concerted activity where an airport skycap remarked about previously not receiving a tip for a similar baggage-handling job, and dismissed the complaint in its entirety. In dismissing the complaint, the majority reversed WorldMark by Wyndham, 356 NLRB 765 (2011), finding that WorldMark had deviated from longstanding precedent on protected concerted activity by blurring the distinction between protected group action and unprotected individual action. The Board further held that even if the activity was concerted, it was not protected as it was not aimed at improving a term or condition of employment within the Respondent’s control. Dissenting, Member McFerran would find that the Respondent violated Section 8(a)(1) by discharging the employee for his protected concerted activity, and would not have overruled WorldMark. She would find that the employee’s complaint constituted an attempt to initiate a group objection over tips, and thus the employee was engaged in concerted activity for the mutual aid and protection of fellow employees.