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Labor Relations Update

Category Archives: General Counsel

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General Counsel Office Advocates Dramatic Change to Joint Employer Standard

Posted in General Counsel, NLRB

Earlier this year, in the case of Browning –Ferris Industries of California, Inc., 32-RC-109684, the NLRB invited parties to submit briefs on whether the Board should change its long-held standards for assessing when two separate entities should be treated as “joint employers”.   Late last week, the Board’s General Counsel submitted a brief advocating for a… Continue Reading

NLRB Gets #SocialMedia: Board and ALJ Rulings Recap

Posted in General Counsel, NLRA, NLRB, Objectionable Conduct, Protected activity, Social Media, Social Media Policies, Unfair Labor Practices

‘April rulings bring May muddling’ might be a better way to tweet recent social media decisions at the National Labor Relations Board (NLRB) given the Board’s ruling in Durham School Services (April 25, 2014) and an Administrative Law Judge’s (ALJ) opinion in Kroger Co. of Michigan (April 21, 2014).  Together, these two decisions show that the… Continue Reading

Furloughed NLRB Employees Return to Work — Will GC Nominee Griffin be Next?

Posted in General Counsel, Uncategorized

On the same day that furloughed federal government employees are returning to work, it is being reported that a roll call vote will be scheduled in the Senate to invoke cloture (i.e., end debate) on the nomination of Richard Griffin to be General Counsel of the NLRB.  The vote is reportedly scheduled for 5:30 p.m. on Monday, Oct. 28, 2013.  We assume that cloture… Continue Reading

NLRB Prepared (Sort Of) For Government Shutdown

Posted in General Counsel, NLRA, NLRB

The shutdown of the federal government has reached many facets of society, including the NLRB.   The agency for all intents and purposes closed within a day of the lapse in funding, with Board agents throughout the country sending e-mails and letters to parties informing them case handling  had been suspended and directing everyone to the NLRB’s… Continue Reading

I Just Want to Testify

Posted in General Counsel, NLRB

I had the opportunity last week to testify before the U.S. House of Representatives Committee on Education and the Workforce, Subcomittee on Health, Education, Labor and Pensions.  The subject of my testimony was “What to Look for from the New NLRB.”  A copy of my written testimony is here, and I trust readers will find it of interest. With… Continue Reading

Employer Merely Granted Employee’s Wish To Be Terminated, NLRB Div. Of Advice Rules

Posted in Advice, Facebook, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Social Media, Social Media Policies

Social media permeates society.  It was inevitable that the increased use of smart phones and various communications platforms such as Facebook and Twitter would clash with the workplace.  We have noted several instances where the NLRB has alleged that employer action in response to social media posts is unlawful, as well as its seemingly endless review… 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 Practices

The 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, Uncategorized

As 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

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 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 Practices

An 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 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 Policies

Now 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 Practices

The 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

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 Practices

The 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

Boilerplate Language In NLRB Settlement Agreement Leads To Default Judgment

Posted in General Counsel, NLRB, Unfair Labor Practices

During the last several months, the NLRB has made no secret that it wants to make changes to precedent and policy.  We have seen public pronouncements about ambush elections, employee rights posters, micro bargaining units, and other issues.  Just because the NLRB doesn’t highlight a policy change doesn’t mean the change cannot have widespread consequences…. 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 Practices

The 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 Practices

Last 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

Social Media In Perspective: Labor and Employment Law Developments

Posted in General Counsel, NLRB, Social Media, Unfair Labor Practices

Following on the success of our March webinar, “Labor Relations Update: Live,” Ronald Meisburg and Katharine Parker will be presenting a webinar on Wednesday, June 13th, entitled “Social Media in Perspective – Labor and Employment Law Developments.”  Ronald is a frequent author of this blog and the co-head of Proskauer’s Labor-Management Relations Group.  Katharine is… Continue Reading

Acting NLRB GC Issues Additional Report On Social Media – Somewhat Useful

Posted in Facebook, General Counsel, Social Media

The Acting General Counsel of the NLRB has issued today an “updated” report on social media cases.   As we have reported frequently here, the NLRB has taken action against employers who clamp down on employee use of social media that may implicate the National Labor Relations Act.  At times, the NLRB has struggled with… Continue Reading

NLRB Ambush Election Regulations Set To Go Into Effect – April 30

Posted in General Counsel, NLRB

As anticipated, the new election regulations adopted by the Board shortly before the holidays are set to go into effect as planned on April 30, 2012.  In anticipation of this event, Acting General Counsel Lafe Solomon issued  GC 12_04 Guidance Memorandum on Representation Case Procedure Changes.pdf, a 24 page guidance to the Regional Offices on… Continue Reading

NLRB Reveals More Details To Proposed Election Rule Changes

Posted in Bargaining units, General Counsel, NLRA, NLRB, Non-Union employers

As we reported earlier, the NLRB announced it was ready to vote on some proposed amendments to the rules concerning representation elections. There was no indication in the original announcement of about the substance of the changes. On November 29, 2011, NLRB Chairman Mark Pierce disclosed more information in the form of a Board Resolution…. Continue Reading

Rhyme or Reason? Trying to Make Sense of the NLRB’s Social Media Cases

Posted in Employer policies, General Counsel, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Social Media, Unfair Labor Practices

Since the NLRB’s Office of the General Counsel (“OGC”) issued the first “Facebook” complaint in American Medical Response of Connecticut, Inc. in October, 2010, dozens of unfair labor practice charges involving social media have been filed, the Acting General Counsel has identified social media cases as a priority, and gallons of electronic ink have been… Continue Reading