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Labor Relations Update

Category Archives: Unfair Labor Practices

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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

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

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

Supreme Court Invalidates Recess Appointments To NLRB: Several Labor Board Decisions Now In Doubt

Posted in Collective Bargaining, NLRA, NLRB, Recess appointments, Unfair Labor Practices, Workplace Investigations

In a rare 9-0 decision issued today, the United States Supreme Court invalidated the recess appointments President Obama made to the NLRB on January 4, 2012, while the Senate was in a three day recess.  The decision in National Labor Relations Board v. Noel Canning (USSC June 26, 2014) means that the NLRB was operating without the requisite… Continue Reading

Old Fashioned Protected Concerted Activity Stirred Up With A Twist

Posted in Leaving work without permission, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Strikes, Unfair Labor Practices

A recent NLRB ALJ decision illustrates the old and the new under the National Labor Relations Act (“Act”).  The case is Gates & Sons Barbeque of Missouri, Inc. and Workers’ Organizing Committee, Kansas City, No. 14-CA-110229 (June 17, 2014). In this case, the employer operated a successful chain of barbeque restaurants.  One of the benefits… 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

NLRB ALJ Says That Under D.R. Horton, Actions Speak As Loudly as Words

Posted in Arbitration, NLRA, NLRB, Protected activity, Unfair Labor Practices

A few weeks ago, we posted about the Fifth Circuit’s decision in the D.R. Horton case and the NLRB’s doctrine of non-acquiescence.   As you will recall, in D.R. Horton, the NLRB held that an employer violates the right of employees to engage in concerted activity by maintaining an arbitration program which prohibits employees from pursuing… Continue Reading

DC Court of Appeals Invalidates NLRB Rights Poster Holding Regulation Violates NLRA

Posted in NLRA, NLRB, Non-Union employers, Rights Poster, Rulemaking, Section 8(a)(1), Unfair Labor Practices

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

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 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

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

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

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

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 Practices

As 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 Practices

What 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