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Category Archives: NLRA

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

Posted in Bargaining units, Collective Bargaining, NLRA, NLRB, Section 9(b), Section 9(c)(5), Specialty Healthcare

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

Posted in NLRA, Right To Work Laws, Section 14(b)

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

Posted in Collective Bargaining, Deferral, General Counsel, NLRA, NLRB, Section 8(a)(5), Unfair Labor Practices

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

Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, General Counsel, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor Practices

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

Posted in NLRA, NLRB, Protected activity, Section 8(a)(1), Unfair Labor Practices

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

Posted in Collective Bargaining, Confidentiality, Employer policies, NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices

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

Posted in Collective Bargaining, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices

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

Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(a)(5), Unfair Labor Practices

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

Posted in NLRA, NLRB

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

Posted in Bargaining units, NLRA, NLRB, Section 9(b)

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

Posted in NLRA, NLRB, Recess appointments, Uncategorized

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

Posted in Arbitration, Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized

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

Posted in General Counsel, Investigations, Mandatory submissions, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

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

Posted in Advice, Investigations, Investigations, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

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

Posted in Bargaining units, NLRA, NLRB, Representation Elections

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

Posted in NLRA, NLRB, Representation Elections

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

Posted in Email, Employer policies, NLRA, NLRB, Protected activity, Social Media, Social Media Policies, Solicitation

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

Posted in Advice, Collective Bargaining, Due Process, General Counsel, NLRA, NLRB, Section 8(a)(5), Uncategorized

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

NNU Ebola “Day of Action” Slated for November 12, 2014

Posted in Ebola, Healthcare Employers, Strikes

Registered nurses in 16 states and the District of Columbia are planning a national “Day of Action” by engaging in strikes, picketing, leafleting, rallies, and candlelight vigils on Wednesday, November 12, in support of demands by National Nurses United (“NNU”) for tougher Ebola safety precautions in the nation’s hospitals.  As we reported previously, NNU has… Continue Reading

NLRB Says On-Line Planning For Insubordination Is Not Protected Concerted Activity

Posted in Employer policies, Facebook, NLRA, NLRB, Protected activity, Social Media, Social Media Policies

 In Richmond District Neighborhood Center, Case 20-CA-091748 (Oct. 28, 2014), the Board upheld an Administrative Law Judge’s ruling that a conversation between two employees, who were involved with student programming at the neighborhood center, was not protected under the NLRA.  During the course of their Facebook exchange, which included obscenity-laced statements regarding how they would… Continue Reading

NLRB Imposes Extraordinary, Tough Remedies for Egregious and Pervasive Violations

Posted in NLRA, NLRB, Rights Poster

In a landmark decision, the National Labor Relation Board has imposed an array of extraordinary remedies against an employer for what the NLRB described as “egregious and pervasive violations” of the National Labor Relations Act.  Pacific Beach Hotel, 361 NLRB No. 65 (2014). As the basis for its imposition of the remedies, the NLRB stated:… Continue Reading

Ebola and Potential Labor Relations Issues

Posted in Collective Bargaining, Healthcare Employers, Non-Union employers, Protected activity, Strikes

The Ebola panic presently sweeping the U.S. raises a host of potential issues for employers.  We recently provided guidance to help employers ensure employee safety while also complying with legal obligations under the Americans with Disabilities Act and similar laws.  In addition, the Occupational Health & Safety Administration (OSHA) recently released a comprehensive summary of… Continue Reading