In a recent Advice Memorandum (Pacific 9 Transportation, Inc. (Pac 9), dated December 18, 2015, but released August 26, 2016), the National Labor Relations Board's (NLRB or the Board) General Counsel (the General Counsel) took the position that misclassifying employees as independent contractors and advising them that only "employees" had a right to request union representation, interfered with the employees' rights under the National Labor Relations Act (the Act) to organize or engage in concerted activity for their mutual aid or protection.
The employer had been engaged in a long-running dispute with the Teamsters Union concerning the alleged misclassification of port drivers who transport cargo containers in California as independent contractors. The NLRB's regional office with jurisdiction over the company concluded that the drivers were employees protected under the Act, and that the company's actions interfered with their rights in violation of Section 8(a)(1) of the Act.
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