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Labor Relations Update

Category Archives: Section 8(a)(5)

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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

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 statements

The 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), Uncategorized

Last 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 Practices

Claiming 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 Reverses NLRB Finding Of No Impasse

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

Sometimes 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

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

Duty To Provide Employee Witness Names And Pro-Union Supervisory Election Interference On This Week’s NLRA Fare

Posted in Duty to furnish information, Duty to provide information, NLRB, Section 8(a)(5)

The slow pace at the NLRB continues this Spring, as only one or two decisions are issued each week.  Recent decisions, one from the NLRB and one from the District of Columbia Court of Appeals, are worth noting because they illustrate recurring themes under the NLRA.   Protecting The Identity Of Employee Informants In Alcan… Continue Reading

NLRB Acting General Counsel Clarifies Duty to Provide Information in Bargaining

Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, General Counsel, NLRB, Section 8(a)(5)

In a May 17 memorandum, NLRB Acting General Counsel Lafe Solomon furnished guidelines to Regional Directors concerning parties’ obligation to provide information in collective bargaining negotiations.  GC Memorandum 11-13  traces the development of two different analytical frameworks for assessing a party’s obligation to provide requested information to its bargaining counterpart.  The first applies to cases involving… Continue Reading

NLRB Hints At Broader Agenda In Witness Statement Case

Posted in Arbitration, Duty to furnish information, Duty to provide information, NLRB, Pre-arbitration Discovery, Section 8(a)(5), Unfair Labor Practices, Witness statements

Employers faced with evidence of employee misconduct often conduct investigations.  In many cases, there is no direct evidence.  Oftetimes, there exists conflicting versions of events, and so witness statements are obtained.  The employer then can consider all the aspects of what happened, taking into consideration who saw what, and the candor of employees.  For over 32 years, such… Continue Reading