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Category Archives: NLRB

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Supreme Court Holds that Lafe Solomon Improperly Served as NLRB General Counsel

Posted in General Counsel, NLRB, Unfair Labor Practices

The Supreme Court has dealt another blow to the stability of the National Labor Relations Board. In a 6-2 decision, in, National Labor Relations Board v. SW General, Inc. DBA Southwest Ambulance, USSC Case No. 15-1251 (March 21, 2017),  the  Court held that the NLRB’s prior Acting General Counsel, Lafe Solomon, who served as acting GC while awaiting… Continue Reading

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

Posted in General Counsel, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices

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

Posted in Collective Bargaining, Employer policies, General Counsel, NLRA, NLRB, Section 8(a)(5)

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)

Posted in Employer policies, Handbook, NLRA, NLRB, NLRB Election Rules, Uncategorized

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

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

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

NLRB Rules That Graduate Students Are Employees

Posted in NLRB

Earlier today, the National Labor Relations Board (“the Board”) issued its long awaited decision in Columbia University.  Not surprisingly, the Board, in a 3-1 decision, overturned 12 years of precedent by ruling that “student assistants” (including assistants engaged in research funded by external grants) who have a “common law” employment relationship with their university are… 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

Stuck With It: Labor Board Forces Employers to Recognize Bargaining Units that Contain Employees of Two or More Separate Employers

Posted in Bargaining units, NLRB

Returning to a decision it made 16 years ago (but was overturned just 4 years after that), the National Labor Relations Board has once again ruled that it will certify a bargaining unit containing individuals from two or more separate employers without those employers’ consent. In Miller & Anderson, Inc., Case 05–RC–079249 (July 11, 2016),… 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

The Right to Withdraw Recognition is Under Attack

Posted in NLRB

For over 65 years, an employer has had a legal right to withdraw recognition from an incumbent union based on the union’s lack of majority status. In 1951, in Celanese, the NLRB permitted withdrawal based on the employer’s “good faith belief” for the lack of majority status. In 2001, in Levitz Furniture, the standard was changed… Continue Reading

NLRB Requests Amicus Briefs in Two Significant Cases

Posted in NLRB

On Friday, February 19, 2016, the National Labor Relations Board invited interested individuals and organizations to file amicus briefs on two important legal issues where the Board is considering overturning existing precedent. In one case, King Soopers, Inc., NLRB, No. 27-CA-129598 (2/19/16), the NLRB’s General Counsel has asked the Board to change its long-standing practice… Continue Reading

NLRB Issues Union Friendly Decision Regarding Applicability of Quickie Rules: When 94% Just Ain’t Enough

Posted in NLRB

With that the NLRB’s quickie election rules going into effect in April 2015, we are just now starting to see the Board decide cases applying the new rules. In Danbury Hospital, Case 01-RC-153086, the Regional Director for Region 1 on October 16, 2015, lent his interpretation to one of the new requirements of the quickie… Continue Reading

The National Labor Relations Board says “Happy Labor Day” with Flurry of Late Summer Pro-Union Moves

Posted in NLRB

While some people may have been on vacation at the end of August, the past few weeks have been extremely busy at the National Labor Relations Board (“NLRB” or “Board”), with a series of decisions that will continue to make it easier for unions to organize non-union employers. Virtual Organizing Has Arrived! The General Counsel… Continue Reading

Too Close for Comfort? NLRB Departs from Long Standing Joint Employer Standard

Posted in Employer policies, NLRB

Citing “changing economic circumstances, particularly the recent dramatic growth in contingent employment relationships,” in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (August 27, 2015), a 3-2 National Labor Relations Board majority (Pearce, Hirozawa, McFerran) significantly revised and broadened the standard for assessing joint-employer status under the National Labor Relations Act. The primary justification… 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