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
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
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
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
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
One area of labor relations that continues to vex practitioners is the scope of the so-called Weingarten rights. NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975). Some 43 years after the Supreme Court set forth the right that represented employees are entitled to union representation when facing an interview that could lead to discipline, … Continue Reading
The Board is now operating at a full complement and is issuing decisions on a fairly regular basis. Nothing earth shattering in terms of law (which is kind of a relief) but there are some interesting issues worth discussing. A frequent topic of discussion here is the often blurry line between what constitutes “protected” versus … Continue Reading
The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development, remember that this agency had scores of decisions overturned for lacking a proper quorum only to wait, quietly, and … Continue Reading
December saw a flurry of decisions (discussed here, here, here and here) by the NLRB as it briefly held a full complement. The Board currently has only four members and so law-changing decisions are less likely to occur until a new member is confirmed. Board cases still proceed through the courts. Sometimes, as we have seen here and here, a federal … Continue Reading
We have noted many times over the years how the NLRB’s zeal to review employer policies, or more correctly, fragments of employer policies, for lawfulness has led to nettlesome issues that rarely, if ever, involve actual employees. The results have been absurd and have raised an entire cottage industry of attacks on language by unions … Continue Reading
NLRB Reverses Precedent on Joint Employer Liability and Standard Governing Employee Handbooks This afternoon, just two days prior to the end of Chairman Philip Miscimarra’s term, the NLRB issued a pair of 3-2 decisions overruling significant precedent regarding joint-employer status and the legal standard governing whether workplace rules violate the exercise of Section 7 rights … Continue Reading
The end of September in most years sees a spate of new NLRB decisions, sometimes dozens, issued on or about September 30, to coincide with the end of the agency’s fiscal year. Not so this past September 30 because of the recent changeover from a majority of Democrat Board Members to a majority of Republican … Continue Reading
Since the change in Presidential administrations, the main topic has turned to what rules will a newly constituted NLRB change? With the addition of Marvin E. Kaplan the Board now has four members, which makes undoing some of the past few years a difficult task. But a four member Board also means there likely will be … Continue Reading
One of the fundamental pillars of any remedy doled out by the NLRB is the agency’s requirement that the employer (or union) post a “Notice to Employees,” a bright blue poster detailing the misdeeds of the charged party. Such a Notice is required to be posted as a result of a finding of an unfair … Continue Reading
The NLRB suffered a setback this week when its interpretation of Weingarten rights was rebuffed by the D.C. Court of Appeals. This is the same court that recently declared the agency was acting more as an “advocate than adjudicator” in a case involving access to an employer’s premises. Weingarten, which derives its name from the United … Continue Reading
Employers can prohibit the use by employees of the names, social security numbers and credit card numbers of customers in furtherance of organizational activities. If this seems like it should have been a foregone conclusion, a recent case from the NLRB shows how the agency’s continued parsing of employer policies could easily have turned this notion on its … Continue Reading
When bargaining over an agreement, it is common to hear union representatives ask “why do we need such elaborate language in an agreement? We are always reasonable.” To which, the company usually responds, “We think you’re nifty but the next person holding your job may not be as reasonable; better to have it in writing … Continue Reading
The advent of social media resulted in a feverish effort by the NLRB to keep up with new technology. In reality, the legal standard for evaluating whether conduct is protected concerted activity did not change. Rather, all the excitement was over the fact employees were being punished for things they said on social media, which was … Continue Reading
We are on the verge of the Board majority changing for the first time in approximately a decade. The President’s two appointees, if confirmed, will bring the Board up to a full five members. After the new members are seated we likely will see big changes to the law. In the meantime, the Board continues to … Continue Reading
Labor disputes are passionate affairs. Workplace grievances elicit all sorts of strident behavior. When the dispute involves a group of employees, the effect can become magnified. The exact point at which the stridency of an employee’s behavior becomes unprotected is not always apparent, and like so much else in labor relations, the line changes with the Board’s … Continue Reading
When an employer and a union sit down to bargain they often agree to ground rules for how negotiations are to be conducted. A common ground rule, for example, is for the parties to agree to address “non-economic” items before addressing economic proposals. Other ground rules include things like confidentiality of negotiations (becoming increasingly rare as unions want to take their … Continue Reading
During the last several years, the NLRB has overturned a great deal of existing precedent. Among other changes, the Board has required bargaining over discipline in newly organized units, found graduate students to be employees entitled to organize, and found that two employers may have to bargain together. The Board also changed the longstanding rule … Continue Reading
The last few decisions issued by the NLRB have addressed a wide spectrum of rather unique situations. Just in the last several days we saw decisions involving a combative registered nurse and a human resources representative threatening unionization. So, perhaps, one of the Board’s most recent decisions is not all that unusual….it simply involves a case … Continue Reading
One of the most interesting things about labor relations is the unusual situations human resources professionals have to deal with on a day to day basis. If you are at a cocktail party with a human resources professional, ask them what the most unusual thing they’ve ever encountered on the job and chances are you’ll … Continue Reading
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