Labor Relations Update

Category Archives: NLRA

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Employer’s Grant of Extra Holiday to All Employees Except Those Represented by Union Not Unlawful, NLRB Rules

By Mark Theodore on Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Uncategorized
Employers with union-represented employees also always have non-union employees, whether working in the office or at another worksite.  Invariably, there are differences between the wages, benefits, and terms and conditions of employment of the two groups, a natural consequence of the bargaining process.  A common situation arises when an employer makes changes in the workplace, whether it is … Continue Reading

Using a Cat to Chase the Inflatable Rat: NLRB General Counsel Urged Reconsideration of Board Precedent Regarding Banners and Signal Picketing of Neutral Employers

By Michael Lebowich and Joshua Fox on Posted in Advice, NLRA, NLRB, Section 8(b)(1)(A)
Continuing its efforts to overturn precedent, the NLRB General Counsel’s Division of Advice has issued a new advice memorandum looking to strike at the most recognizable sign of unionism in urban areas today – – the inflatable rat that is used to signal a labor dispute to the public. It has been long held by the Supreme … Continue Reading

Employer’s Campaign Prediction That Employees Would Have To Join Union And Pay Dues As Condition Of Employment Not Coercive, NLRB Majority Rules

By Mark Theodore on Posted in Collective Bargaining, NLRA, NLRB, NLRB Election Rules, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices
The NLRB currently is churning out cases and Advice Memoranda at a fairly regular pace.  We recently discussed NLRB decisions addressing information requests, handbook statements, and confidential informants. An interesting area of NLRB case law concerns campaign statements,–statements made by employer representatives during an organizing campaign.  When there is an allegation of wrongdoing, the Board evaluates such employer … Continue Reading

NLRB Office of the General Counsel Advises that Uber Drivers Are Not Statutory “Employees”

By Mark Theodore, Joshua Fox and Jacob P. Tucker on Posted in Advice, NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(2), Section 8(a)(5)
In an Advice Memorandum dated April 16, 2019, but released on May 14, 2019, the NLRB’s General Counsel staked out a position in one of the most contentious and influential questions in labor and employment law today: Whether or not Uber drivers ­– and by implication, potentially, other “gig economy” workers – are statutory employees … Continue Reading

NLRB: Employer’s Reasons For Policy Changes Kept Union’s Information Request Alive Even After Proposals Withdrawn

By Mark Theodore on Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, Employer policies, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor Practices
Information requests in the realm of labor relations are simple in theory but can be complicated in practice.  We have seen how the topics of information sought by a union can cause skirmishes, sometimes deliberately so.  We also have seen that it almost never is a good idea for a party to just deny a request for relevant information … Continue Reading

D.C. Circuit Weighs In On NLRB Test For Adjunct Faculty Unionization

By Paul Salvatore, Steven Porzio, David Bayer and Laura Franks on Posted in NLRA, Section 7
Colleges and universities should take note of the Court of Appeals for the D.C. Circuit’s recent decision in University of Southern California v. National Labor Relations Board, Case No. 17-1149 (D.C. Cir. Mar. 12, 2019) addressing whether non-tenure track faculty at universities are “employees” under the National Labor Relations Act (“NLRA”), giving them the right … Continue Reading

NLRB Rules Employer’s Handbook Statement That Benefit Available To “Non-Union Employees” Violates Act

By Mark Theodore on Posted in Employer policies, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized
During the last decade, a number of NLRB decisions faulted employers for written policies that were considered to be overbroad in violation of the National Labor Relations Act.  These rulings sprang largely from the NLRB’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), where the Board set forth a standard for evaluating the lawfulness of employer policies that … Continue Reading

NLRB Majority: Employer Not Required To Disclose Identity Of Bargaining Unit Informant

By Mark Theodore on Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, General Counsel, NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized
An employer’s duty to provide information to the union representing its employees is a frequent of topic of interest to labor relations practitioners because it is very easy to violate the law.  For example, an employer’s assertion that the information is confidential is not enough to justify failing to turn over the information.  And, for a brief period of time … Continue Reading

Unanimous NLRB: Context Matters – Asking Employee Whether He Saw Union Organizer Not Unlawful Interrogation

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Section 8(a)(1), Uncategorized
How the NLRB treats employer statements made to employees in the context of union organizing or other protected activity has been a frequent topic of discussion.  While the actual case law analyzing the coerciveness of an employer statement has not changed, the lawfulness of the statement often depends on the make-up of the Board at the … Continue Reading

Are Charter Schools Covered by the National Labor Relations Act? NLRB to Reconsider Its Jurisdiction over Charter Schools

By Mark Theodore, Joshua Fox and Austin McLeod on Posted in Bargaining units, Decertification elections, NLRA, NLRB, Section 7
On February 4, the NLRB granted United Federation of Teachers, Local 2, AFT, AFL-CIO’s (the “Union”) request for review of the Regional Director’s Decision and Direction of Election concerning a decertification petition filed by several teachers at a charter school.  In so doing, the Board invited filing of briefs regarding whether the Board should decline … Continue Reading

Employee’s Complaint About Low Tippers Not Protected Concerted Activity, NLRB Majority Rules

By Mark Theodore on Posted in NLRA, NLRB, Protected activity, Section 7, Uncategorized, Unfair Labor Practices
The right of employees to band together for purposes of bringing grievances to their employer is at the very core of the National Labor Relations Act, as embodied in Section 7. This right is called protected concerted activity.  In order to determine whether an employee is, in fact, engaged in protected concerted activity, it is necessary to … Continue Reading

Another Obama-Board Decision Overturned: NLRB Reverts to Traditional Common-Law Agency Independent-Contractor Test and Foreshadows Potential Rulemaking

By Joshua Fox, Meika Freeman and Michael Lebowich on Posted in Collective Bargaining, NLRA, NLRB, Rulemaking, Section 7
On January 25, 2019, in a long-anticipated decision, the NLRB overturned another Obama-Board decision, FedEx Home Delivery, 361 NLRB 610 (2014), which modified the test for whether an individual is an “employee” or an independent contractor under the NLRA (read about that decision here).  The Board, in a 3-1 decision (Chairman Ring and Members Kaplan … Continue Reading

New Joint-Employer Standard Properly Developed But Improperly Applied, Rules Federal Appeals Court

By Mark Theodore on Posted in Bargaining units, Collective Bargaining, NLRA, NLRB, Representation Elections, Uncategorized
There have been many precedent changing decisions coming from the NLRB in the last few years.  Few of these changes were more hotly contested, or farther reaching, than the Board’s decision in Browning-Ferris where it altered its longstanding joint employer test.  The new joint-employer test made it much more likely for a joint-employer relationship to be found to exist.  The decision … Continue Reading

NLRB Majority: Unqualified Notice to Picket Jobsite Where Neutrals Are Present Violates Act

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Uncategorized, Unfair Labor Practices
We recently saw interesting decisions from the NLRB including cases about the employer’s duty to provide information about tax cuts, the lawfulness of litigation holds, and the validity of decertification petitions. At the end of December, a divided NLRB took on a case involving a union’s threat to picket a work location where multiple employers are present. In IBEW Local 357 (Convention Technical … Continue Reading

Decertification Petition Was Improperly Dismissed, NLRB Rules

By Mark Theodore on Posted in Decertification elections, NLRA, NLRB, Protected activity, Representation Elections, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices
Recently, we explored how the NLRB’s rules for determining the timeliness of a representation can be confusing.  Another area of complexity comes from whether a decertification petition will be processed in the face of unfair labor practice charges filed by the incumbent union.  This implicates the Board’s “blocking policy,” which is a set of guidelines designed to address … Continue Reading

Employer’s Litigation Hold Not Unlawful, NLRB Division of Advice Concludes

By Mark Theodore on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized
Last year about this time, the NLRB changed the standard for reviewing handbook rules.  The new standard takes into consideration the fact  there are many other interests other than the NLRA at play in a workplace, and seems to have quieted the frenzied scrutiny of employer policies. Over the years, the heightened scrutiny of employer policies has resulted in … Continue Reading

Union Not Entitled to Information About How Employer Spends Money From Tax Cut, NLRB General Counsel Rules

By Mark Theodore on Posted in Advice, Duty to furnish information, NLRA, NLRB, Section 8(a)(5), Uncategorized
In prior posts, we have discussed how information requests made in the context of a bargaining relationship can be vexing.  The standard of the employer’s obligation to provide information can be a moving target, depending on the make-up of the NLRB.  For example, for a brief period of time we saw how an employer could be found to have to … Continue Reading

Employer’s Representation Petition Not Barred By Existence of Signed Contract, Divided NLRB Rules

By Mark Theodore on Posted in Collective Bargaining, Decertification elections, NLRA, NLRB, Representation Elections, Uncategorized
As we have noted at times, the human element in labor relations makes for interesting situations.  One of the more interesting issues is the timeliness of representation petitions, which, despite the existence of clear rules, can still be disrupted by human action. A union, an employee or an employer can all file a representation petition with … Continue Reading

NLRB Finds Employer Effectively Repudiated Unlawful Handbook Rule…and RecusalGate Continues

By Mark Theodore on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Solicitation, Uncategorized, Unfair Labor Practices
The Board issued an interesting decision discussing an employer’s successful efforts to repudiate unlawful conduct, which we’ll get to in a minute.  In our last post, we discussed a simmering dispute over the circumstances which an NLRB member must recuse himself or herself.  This issue, we’ll call it Recusalgate,  has taken an interesting turn.  In ADI … Continue Reading

NLRB Majority Decides 50-50 Balls In Employer Favor

By Mark Theodore on Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices
The NLRB  has been in a period of dormancy.  When the make-up of the Board changed, a lot of people expected an onslaught of NLRB decisions reversing the reversals of precedent made by the agency in the last 8 years.  Except for a couple of brief periods, most notably in December when then-Chairman Miscimarra departed, … Continue Reading

NLRB Announces Proposed Rule Changing Joint-Employer Standard

By Zach Fasman on Posted in Joint Employer, NLRA
The National Labor Relations Board announced that it will publish a Notice of Proposed Rulemaking today, September 14, regarding its joint-employer standard. The proposed rule will state that an employer may be considered a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and … Continue Reading

NLRB Rejects “Constructive Denial of Transfer” and “Threat” Theories of Unfair Labor Practice Liability

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized, Unfair Labor Practices
As we hurtle toward Labor Day, and the probable onslaught of decisions, and as NLRB Member Pearce’s tenure ends on August 27, the Board has been issuing a steady stream of cases.  Many of these appear to be garden variety type cases, with a smattering of cases now dismissing the theory of a class action waiver … Continue Reading

Arbitration Class Waivers, Past Practice (not established) and Skirmishing Over Information Requests All Part of Recent NLRB Action

By Mark Theodore on Posted in Collective Bargaining, Confidentiality, Duty to furnish information, Duty to provide information, General Counsel, Handbook, Investigations, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor Practices, Workplace Investigations
Since December 2017, when the Board issued a number of decisions which restored precedent that had been changed in the last few years, (discussed here, here, here, and here), not much of note has been happening at the Board.  Indeed, there was not a full complement at the Board until April when Chairman Ring was confirmed. Two upcoming events may see … Continue Reading

You’ve Got Mail: NLRB Requests Briefing on Standard for Employee Use of Employer Owned Electronic Communication Systems

By Michael Lebowich and Jordan Simon on Posted in Confidentiality, Email, Employer policies, NLRA, NLRB, Section 7, Social Media
In what could signify the beginning of the end for Purple Communications, Inc., 361 NLRB 1050 (2014) and guaranteed employee access to Employer computer systems for union organizing purposes, the NLRB issued a notice on August 1 inviting the filing of briefs on whether the Board should uphold, modify or overrule the decision.  Under Purple … Continue Reading
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