A federal appeals court today rebuffed the NLRB’s attempt to require all employers under its jurisdiction to post in a “conspicuous” place in the workplace a poster that informs employees of their rights under the National Labor Relations Act. The NLRB’s rule has been controversial from the start as it didn’t just require the posting… Continue Reading
Category Archives: NLRA
Subscribe to NLRA RSS FeedGeneral Counsel’s Division of Advice Issues Helpful Guidance on Confidentiality Rules in Workplace Investigations
Posted in Confidentiality, Investigations, NLRA, NLRB, Witness statementsAs we reported here, in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the NLRB reviewed an employer’s blanket policy of requiring witnesses to maintain confidentiality during workplace investigations. The Board found that such a policy chilled the right of employees to engage in the protected concerted activity… Continue Reading
NLRB: Employer Responsible For Backpay Of Union Representative Allegedly Injured During Workplace Assault
Posted in General Counsel, NLRA, NLRB, Section 8(a)(1), Uncategorized, Unfair Labor PracticesThe NLRB has ruled that an employer is liable to lost wages for a union representative who allegedly suffered injuries after being pushed down a flight of stairs at a work site. The case is Norquay Construction, Inc., 359 NLRB No. 93 (April 16, 2013). The facts involved a construction project. The general contractor was non-union but… Continue Reading
NLRB Pulls Back A Little More On Policy Frenzy, Finds Code Of Conduct Does Not Violate The Act
Posted in Advice, At-Will, Employer policies, General Counsel, Handbook, Mandatory submissions, NLRA, NLRB, Section 7, Social Media Policies, UncategorizedAs we have seen repeatedly in the last year, the NLRB has taken it upon itself to police employer policies often finding a phrase or two to be a violation of the Act. In recent months we have seen the NLRB seemingly pullback on this trend, taking a much closer look at the context of… Continue Reading
Update: NLRB Seeks U.S. Supreme Court Review Of Recess Appointments
Posted in Duty to furnish information, NLRA, NLRB, Recess appointments, Rulemaking, Witness statementsThe NLRB announced today that the agency would seek U.S. Supreme Court review of the D.C. Circuit decision in Noel Canning, which ruled that the President’s recess appointments made last year (and perhaps in the years prior) were unconstitutional. The decision of the appeals court has cast a great deal of uncertainty over past and current… Continue Reading
Ambush Election Rules Fall Into Noel Canning Abyss As Court Puts Hold On Decision
Posted in NLRA, NLRB, Recess appointments, Representation Elections, RulemakingThe fallout from Noel Canning has been felt far and wide. The DC Circuit Court’s January 25, 2013 decision certainly put all NLRB decisions made since January 4, 2012 (the date Members Block and Griffin received their recess appointments) in jeopardy. All cases on appeal to the DC Circuit involving panels which included Block and Griffin have… Continue Reading
NLRB Overrules Another Longstanding Precedent: Witness Statements No Longer Exempt From Disclosure
Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(a)(5), Uncategorized, Witness statementsThe precedents are falling fast. Last week the NLRB overruled the five decade old Bethlehem Steel decision, and now another longstanding precedent has fallen. The NLRB issued a decision overruling Anheuser-Busch, Inc., 237 NLRB 982 (1978), the case that held that witness statements obtained during an employer investigation of workplace misconduct are exempt from disclosure… Continue Reading
Holiday Season Extravaganza: NLRB Issues Flurry Of Law Changing Decisions
Posted in Arbitration, Collective Bargaining, Duty to furnish information, Duty to provide information, Facebook, General Counsel, NLRA, NLRB, Pre-arbitration Discovery, Protected activity, Section 7, Section 8(a)(1), Section 8(a)(5), UncategorizedLast week the NLRB issued several significant decisions. In the press release announcing the decisions, the agency noted that most were actually issued “the week of December 10, but were issued this week following editing and formatting which is typical for the final decisions in a Member’s term.” This is a reference to Member Hayes’… Continue Reading
NLRB Discards 50 Years Of Precedent – Dues Checkoff Clauses Now Survive Expiration Of Bargaining Agreement
Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor PracticesClaiming that the Board “has never provided a coherent explanation” for the 50 year old rule that the obligation to continue deducting dues pursuant to a dues checkoff provision ceases upon expiration of the collective bargaining agreement, the NLRB recently announced it has overruled existing precedent. Dues checkoff provisions now survive the expiration of an agreement… Continue Reading
Court of Appeals Rules Employee Efforts To Take Over Editorial Control At Newspaper Unprotected By NLRA
Posted in General Counsel, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor PracticesAn issue we have discussed previously is whether all employee action that is “concerted” is also protected by the NLRA. We have seen that maliciously false statements made to third parties are unprotected. But what about when employees disagree with managerial control of the operations? How far can they press their claims? When it comes to… Continue Reading
NLRB, Union Violated Act When Steward Invoked Company Handbook To Stop Member Complaints
Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(b)(1)(A), UncategorizedIn the last couple of years, we have seen close scrutiny of employer handbooks by the NLRB. If the agency deems a policy, or a portion of a policy, to be something employees might reasonably construe to inhibit protected activities, it is found to be unlawful. These types of cases are vexing. if only because… Continue Reading
Court of Appeals Reverses NLRB Finding Of No Impasse
Posted in Collective Bargaining, NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor PracticesSometimes in negotiations the parties just cannot agree on certain items. Such a deadlock under certain circumstances can have legal consequences under the concept of “impasse,” one of the more shadowy, hard to define issues in labor law. A true legal impasse over an important issue can allow one party to temporarily suspend negotiations, and in… Continue Reading
NLRB Developments Post-Election – What The Future May Hold In Labor Relations
Posted in At-Will, Bargaining units, Employer policies, Facebook, General Counsel, Handbook, NLRA, NLRB, Off-duty Access, Section 7, Section 8(a)(1), Social Media PoliciesNow that the election is over, one of the main questions being asked is, what next? We recently held a Webinar entitled ”The Latest at the NLRB and Post-Election Developments” to address this question. It seems clear that with Congress still divided that there likely will not be much in the way of legislative change. The pressing issues… Continue Reading
NLRB Division, Some “At-Will” Clauses Ok
Posted in Advice, At-Will, Employer policies, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor PracticesThe Board’s excruciatingly close scrutiny of employer policies continues as the agency looks for opportunities to expand its juridiction by rooting out all evil lurking in handbooks and other written employment policies. The NLRB has taken the position that certain “at-will” language in handbooks, language that in various forms exists in virtually every private employer’s handbook in… Continue Reading
Nitpicking Continues As NLRB Finds Employer’s Failure To Timely Respond To Information Request A Violation Of The Act
Posted in Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(a)(5), Section 8(b)(3)The Board’s fiscal year ended on September 30 with a whimper instead of a bang. We saw a few decisions in the usual year end flurry but most of the major Board initiatives were advanced in the last two years, and so this probably is a calm before the Presidential election. Yet change still is occurring. … Continue Reading
Contract Language Requires Continued Wage Increases Even After Expiration, rules divided NLRB
Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Section 8(a)(5)The process of collective bargaining is filled with nuance and sublety. Unlike other business negotiations, there is often a dance that takes place as the parties attempt to reach an agreement. Given the Act’s mandate that the parties “meet and confer” at “reasonable times” to try to reach an agreement, it is legally impossible to… Continue Reading
Update: NLRB Upholds Termination For Facebook Posting, But Nails Employer For Unrelated Handbook Policy
Posted in Employer policies, Facebook, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Social Media, Unfair Labor PracticesThe NLRB has received a lot of attention for its actions the last couple years. One of the storms was caused by the agency’s attention to employer actions based on employee Facebook postings. More to the point, employers were not too thrilled with some things being posted by employees on the internet for the multitudes to see,… Continue Reading
NLRB: Employer’s Harassment Investigation Lawful, But Not Resulting Discipline
Posted in Decertification elections, Handbook, Leaving work without permission, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor PracticesAs the end of its fiscal year approaches (September 30), the NLRB pushes more decisions out than it has in the last several weeks. Not a whole lot are of note, honestly. There seems to be an uptick of default judgments being issued,-findings of violations of the NLRA without a formal hearing,–but it is difficult… Continue Reading
Post-Labor Day Evaluation Shows….Very Little Activity At NLRB
Posted in Handbook, NLRA, NLRB, Section 8(a)(1), Unfair Labor PracticesWhat a difference a year makes. Last year, we saw a blizzard of change coming from the NLRB. One could forecast what was going to happen due to the proactive nature of the agency’s public expression of its intentions, as well as its solicitation of viewpoints. It seemed every month brought some new, big change… Continue Reading
Dues Checkoff Clear In Revocation Requirements, Says NLRB (By Default)
Posted in Employer policies, General Counsel, Handbook, NLRA, NLRB, Section 8(a)(1), Section 8(a)(2), Section 8(b)(1)(A), Unfair Labor PracticesThe looming presidential election seems to have slowed the NLRB down, despite the fact the Board is currently at a full complement of five members. As of July 24, it will be down to four, as Member Flynn’s resignation will become effective at that time. The Board cases being decided these days largely involve mundane matters,… Continue Reading
Independence Day Incrementalism: NLRB (Again) Expands On Precedent By Ruling Employer Off-Duty Access Rule Unlawful
Posted in General Counsel, Handbook, NLRA, NLRB, Off-duty Access, Protected activity, Section 7, Section 8(a)(1), Unfair Labor PracticesLast year the NLRB’s order of the day was sweeping change. That brought us the employee rights poster, the ambush election rules, and micro unions. The Board today is not acting in such a bold manner, and instead is seeking gradual change through a policy of incrementalism. We saw recently how the current Board expanded… Continue Reading
Directing Employees To Hand Out Leaflets A Violation, NLRB Rules
Posted in Section 7, Section 8(a)(1)Employers, particularly outward facing ones, can find external union protest activity in front of the business to be annoying. The NLRB recently ruled that the employer cannot enlist employees to assist in countering such efforts. In Fresh & Easy Neighborhood Market, Inc., 358 NLRB No. 65 (June 25, 2012).pdf, the employer, an operator of grocery… Continue Reading
NLRB: Maliciously False Statements By Employee To Third Party Not Protected
Posted in NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor PracticesA problem that has vexed employers since the inception of the NLRA is the exact contours of employee free speech under the Act. We know that employees are given a great deal of latitude to express discontent, even to the point where they can wear t-shirts identifying themselves as prisoners to customer homes. This issue generally has… Continue Reading
Micro Union Case Hits Federal Court Of Appeals
Posted in Bargaining units, NLRA, NLRB, Non-Union employers, Representation Elections, Rulemaking, Section 9(b), Section 9(c)(5)One of the NLRB’s most sweeping decisions in decades, Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26, 2011).pdf, has reached a federal appeals court, as the employer seeks to have the decision overturned. As we have previously discussed, the Board in this case established the micro union standard, where the bargaining unit sought by a… Continue Reading