On May 6, 2015, the Division of Advice at the NLRB's Office of the General Counsel (Division) released an advice memorandum dated April 25, 1978 addressing whether a workers' group that picketed outside a facility constituted a "labor organization" under the NLRA. By releasing a nearly 40-year old memorandum, the NLRB's General Counsel appears to be signalling what analysis it likely will use to evaluate modern day union-backed "worker centers" that tout themselves as social or civil rights organizations beyond the NLRA's and related laws' ambits.

Section 2(5) of the NLRA defines "labor organization" as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, in dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work" (29 U.S.C. § 152(5)). Unions comprised of private sector workers, other than rail and air or agricultural workers, generally are NLRA-governed labor organizations. Labor organizations must satisfy various legal requirements under multiple statutes, including:

Recently, union-backed "worker centers" have prominently coordinated picketing and strikes at fast-food enterprises and other facilities. These worker centers have also engaged in political lobbying for minimum wage increases nationwide and in select cities. The worker centers generally are incorporated as 501(c) nonprofit corporations and tout themselves as social and civil rights organizations rather than "labor organizations." If they are not viewed as labor organizations, they are not bound by the restrictions and obligations the NLRA, LMRA and LMRDA ordinarily impose on traditional unions. The NLRB has not set a brightline rule for evaluating worker centers or their actions under the NLRA.

By releasing a nearly 40 year old advice memorandum as questions about the nature, obligations and restrictions of workers centers mount, the NLRB's Office of the General Counsel foretells what analysis it is likely to use when:

The 1978 memorandum involved a group of warehouse, dock and truck driver employees who organized themselves after being terminated by their employer, Alltrans Express. Alltrans had a contract with a freight forwarder Acme Fast Freight, Inc. Acme discontinued its contract with Alltrans and began using a different company, Intermodal Container Services, Inc., which had unionized warehouse and dock employees and used independent contractor owner-operators for trucking work. After Acme discontinued its contract with Alltrans, Alltrans terminated its employees. The terminated employees established a picket line at a facility in Carson, California operated by Acme and Intermodal. The employees, who termed themselves the Acme/Alltrans Strike Committee (Committee), engaged in mass round-the-clock picketing, threats against Acme and Intermodal employees, and other activities which would be found to violate Section 8(b)(1)(A) of the NLRA if the Committee were viewed as a labor organization under Section 2(5) of the NLRA. The Committee also solicited two other unions and individuals to contribute to its picketing fund; however no union officially sanctioned the Committee's picketing or other activities.

The regional office submitted to the Division of Advice the question of whether the Committee was a labor organization under Section 2(5) of the NLRA.

The Division of Advice:

Advice memoranda are not binding precedent on the panel that heads the NLRB's judicial functions but provide guidance about, among other things, the NLRB General Counsel's Office's views on whom it may prosecute ULP complaints against.

Employers should recognize that the release of this advice memorandum many years after the underlying matter was resolved, but while worker centers increase their labor actions, signals the NLRB will likely: