Labor Relations Update

Category Archives: NLRA

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17 Year Old Ruling In Representation Case Can Preclude New Claim For Employees, Divided NLRB Rules

Of all the changes to the law the NLRB has made in the last several years, the most significant involve how the agency determines bargaining units.  For example, the NLRB’s decision in Specialty Healthcare drastically altered the manner in which bargaining units were determined by the Regional Directors and the NLRB.  Also, the NLRB’s ambush election rules also … Continue Reading

Employer’s Interview Of Employees During Defense Of Unfair Labor Practice Violates Act, NLRB Rules

We already know that when it comes to the NLRB there already are several actions an employer can take that violate the NLRA, even though such actions would be perfectly acceptable under any other employment law.  And sometimes the actions are deemed unlawful even when they are not directly related to the NLRA.  Thus, we’ve … Continue Reading

Employer Did Not Violate Duty To Bargain Over Change To Christmas Gift Policy, NLRB Rules

What would the holiday season be without a Christmas gift case?  A perennial problem for labor relations personnel is whether the yearly Christmas turkey given to employees is something that an employer must bargain over before (bah humbug) discontinuing. See, e.g., Q-1 Motor Express, Inc., 323 NLRB 767, 775 (1997). In a decision issued shortly … Continue Reading

NLRB Overturns Election Win For Employer That Failed To Timely Serve Voter List (Even Though Union Received List In Timely Fashion)

The NLRB is down to three members, the bare minimum required to conduct business, and so cases are being issued somewhat sporadically. The so-called ambush election rules have received a lot attention over the last few years.  We recently discussed here a case where the NLRB found that a union had not timely filed a … Continue Reading

Micro-Units under the Microscope: The Second and Fifth Circuit Courts Consider Specialty Healthcare and Its Misapplication

Last week, the U.S. Court of Appeals for the Second Circuit joined the Third, Fourth, Fifth, Sixth, Seventh, and Eighth Circuits in upholding the Board’s Specialty Healthcare standard for determining appropriate bargaining units under the National Labor Relations Act, although with a very skeptical eye on how it applied.  Constellation Brands, U.S. Operations, Inc. v. NLRB, … Continue Reading

Federal Appeals Court Rules Counties May Enact Right To Work Laws

The term “right to work state” is fairly well known.  After all, 25 of the United States are “right to work states,” states which have enacted laws prohibiting compulsory unionism as part of a collective bargaining agreement.  In a right to work state, the law prohibits the parties to a collective bargaining agreement from including a “union security clause,” … Continue Reading

NLRB Majority Stuns Nation By Ruling Employer Has Management Right, Chairman Dissents

In another example of the inconsistency of the current state of Board law, a 2-1 majority of the NLRB ruled that an employer not only had a management right but it wasn’t necessary that this right be expressly set forth in the parties’ contract.  This is certainly odd because the NLRB went out of its … Continue Reading

Employer Claims Of Unprofitability And Competitive Disadvantage Enough To Trigger Audit Of Financials By Union, NLRB Majority Concludes

The end of another NLRB fiscal year is upon us.  Today, September 30, marks the last date of the fiscal year.  We can expect to see a number of decisions issue from the Board, and many determinations made at the regional level, as the agency attempts to pump up its case processing statistics.  We will … Continue Reading

Split D.C. Circuit Panel Upholds NLRB: DirecTV Violated NLRA By Terminating Technicians For Statements Made During A News Interview

In a 2-1 ruling in DirecTV Inc. v. National Labor Relations Board, the U.S. Court of Appeals for the D.C. Circuit affirmed the NLRB’s ruling that DirecTV must reinstate technicians who were terminated for complaining about a company pay policy during a television interview, finding that the employees’ conduct constituted protected, concerted activity and was … Continue Reading

Non-Compete Agreement A Mandatory Subject of Bargaining, NLRB Rules

The first day of employment is often chaotic.  New employees must learn their way around the jobsite, meet (and remember the names of) many new people and otherwise familiarize themselves with working at a new job.  Oh, and there’s the paperwork.  Seemingly endless mounds of paperwork.  New employees are asked to sign a multitude of documents … Continue Reading

Recent NLRB Decision A Reminder That NLRA Can Protect Actions Of A Single Employee

So far, it has been a long quiet Summer with little NLRB activity, – with the exception of the recent ruling that temporary agency employees can be part of a bargaining unit with the principal employer’s employees, of course.  More change may be coming, though.  The end of the NLRB’s fiscal year is September 30 and … Continue Reading

NLRB Majority, Management Rights Clause Must Be Specific To Enable Employer To Make Unilateral Changes

Collective bargaining agreements, do not, and cannot cover every issue that will arise during their term.  Matters concerning terms and conditions of employment that are not addressed in the labor contract have to be negotiated before changes can be made.  Sometimes, however, the parties agree that management can make changes to certain terms and conditions of … Continue Reading

In for the Long Haul as the Fifth Circuit Upholds NLRB’s “Quickie” Election Rule

Last April, the National Labor Relations Board (“Board”) implemented it’s new expedited union representation procedures. On June 10, 2016, in Associated Builders and Contrs. Of Tex v. NLRB, 15-cv-50487  2016 U.S. App. LEXIS 10552 (5th Cir. June 10, 2016) the Fifth Circuit upheld the new procedures, commonly called “quickie” election rules – – rejecting the … Continue Reading

Board Reverses 32-Year-Old Rule Allowing Employers to Oust Mixed-Guard Unions

For thirty-two years, it has been a settled proposition that an employer may, upon the expiration of a contract, refuse to continue to negotiate with a “mixed-guard” union that represents its security guards. Continuing its long path of upsetting established precedent, on June 9, 2016, the National Labor Relations Board (“NLRB” or “Board”) reversed this … Continue Reading

DC Circuit: NLRB Acting General Counsel Solomon’s Tenure Violated Vacancy Statute, Unfair Labor Practice Complaint Unauthorized

The political gridlock in Washington DC caused several years of tumult at the NLRB, spawning two Supreme Court decisions (Noel Canning and New Process Steel) and several courts of appeals decisions regarding the Board’s ability to act without regular appointments, and resulted in scores of decisions having to be reconsidered by a newly constituted Board.  Most … Continue Reading

NLRB Refuses to Approve Withdrawal of Charges Despite Settlement of Class Action Case

We know that, among many other common employer policies, the NLRB considers many mandatory arbitration agreements to be unlawful, particularly where they prohibit class or collective actions.  See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014).  Unlike a more run of the mill handbook violation where the government seeks removal or modification of the policy, an … Continue Reading

Union Represented Employee Not Entitled To Co-Worker Witness During Investigatory Interview, NLRB Rules

The last few months at the NLRB have been relatively quiet, save of course for the ambush election rules which went into effect on April 15; the true impact of these rules has yet to be revealed.  Many of the recent Board cases involve correcting decisions that were  invalidated by the Supreme Court in its Noel Canning recess appointment decision. … Continue Reading

Search Of Company Vehicle Not Employee Interview Triggering Weingarten Rights, NLRB Division of Advice

The scope of a union-represented employee’s right to have a union representative present during an investigatory interview is one of the more interesting areas of labor law.  Even though most people who practice labor relations know the basics of the so-called Weingarten rights, the same types of questions continue to arise because there are an … Continue Reading

Higher Education Alert: NLRB Trend in Easing Unionization Continues with Recent Decision

The National Labor Relations Board issued a 3-2 decision last month in Pacific Lutheran University, 361 NLRB No. 157, in which it significantly modified the standards for determining:  (1) whether college or university faculty members are managerial employees and thus not protected by the National Labor Relations Act; and (2) when the Board should decline to exercise … Continue Reading

NLRB Issues Final Election Rules Revision

As anticipated, the National Labor Relations Board today made public its final revised election rules.  The new rules will become effective 120 days following their publication in the Federal Register.  The publication date is scheduled to be Monday, December 15, 2014, one day before the expiration of the term of Member Schiffer. There are really … Continue Reading

NLRB Reverses Course, Gives Employees Certain Rights to Use Employer’s Email

In a decision that reverses existing case law on employee use of  employer email, the National Labor Relations Board (with two members filing separate dissents) has decided that under certain circumstances employees do have the right to use and employer’s email to engage in protected communications under the National Labor Relations Act. Purple Communications, Inc., … Continue Reading

No Duty To Bargain Over Discipline During Contract Hiatus, NLRB Division of Advice

The NLRB has been active but quiet during the last few months as the agency quietly reaffirms decisions nullified by the Supreme Court.  By all accounts, however, and as history has proved, the NLRB is getting ready to issue an onslaught of law-changing decisions as we head into the holiday season.  This onslaught of change … Continue Reading
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