Category Archives: Section 8(a)(3)

NLRB Nixes Reopening Remedy after Remand from D.C. Circuit

In a 2-1 decision (Members Kaplan and Ring in the Majority, with Member Prouty dissenting), the National Labor Relations Board (“NLRB” or “Board”) revisited its 2020 decision in RAV Truck & Trailer Repairs, Inc., 369 NLRB No. 36, reversing the decision in part. Notably, the Board reversed its earlier order requiring the Company to reopen … Continue Reading

NLRB General Counsel Issues Guidance on the Duty to Bargain During Emergencies

By Peter D. Conrad, Joshua Fox and Scott Tan on March 31, 2020 Posted in Advice, Collective Bargaining, COVID-19, General Counsel, Healthcare Employers, NLRA, NLRB, Section 8(a)(3), Section 8(a)(5), Unfair Labor Practices

On March 27, 2020, NLRB General Counsel Peter Robb issued Memorandum GC-20-04 to provide guidance to NLRB regional offices and the general public. Acknowledging that “we are [currently] in an unprecedented situation,” the General Counsel provided summaries of several NLRB decisions discussing how, if at all, an employer’s duty to bargain under NLRA Section 8(d) … Continue Reading

NLRB: Outsized Payment to Union Supporter to Waive Reinstatement in Board Settlement Not Unlawful Bribe

By Mark Theodore, Joshua Fox and Scott Tan on January 10, 2020 Posted in NLRA, NLRB, Section 8(a)(3)

Shamrock Foods Company, 369 N.L.R.B. No. 5 (January 7, 2020) is the latest in the National Labor Relations Board’s series of employer-friendly decisions. In Shamrock Foods, the Board held that an employer did not violate Sections 8(a)(3) and (1) of the National Labor Relations Act by offering and entering into a settlement agreement with an … Continue Reading

NLRB Gives End of Year Gift for Employers, Restores Longstanding Standard for Deferring to Arbitral Decisions

By Joshua Fox, Mark Theodore and Heylee Bernstein on January 3, 2020 Posted in Arbitration, Deferral, NLRA, NLRB, Section 8(a)(1), Section 8(a)(3), Unfair Labor Practices

In yet another end-of-2019 decision overruling significant NLRA precedent, the Board reverted to the less stringent Spielberg / Olin standard for determining whether to defer to arbitration decisions in the context of Section 8(a)(1) and (3) unfair labor practice cases. See United Parcel Service, Inc., 369 NLRB 1 (2019). The Board issued this decision unanimously, … Continue Reading

NLRB Restores 50+ Year-Old Precedent: Employers (Once Again) May Unilaterally Stop Deducting Union Dues Upon Contract Expiration

By Mark Theodore, Joshua Fox and Jacob P. Tucker on December 16, 2019 Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(3)

Mid-December is always a time where one can expect significant decisions to issue from the NLRB. In recent years, we saw the Board, among other decisions, abandon the much criticized “micro unit” standard and the equally criticized handbook violation standard. December is also one of the main times of year that a Board Member’s term … Continue Reading

Moment of Clarity? NLRB Upholds Info-Sharing and Media Contact Rules, Clarifies Boeing Standard Applicable to Employer Handbook Policies

By Mark Theodore, Joshua Fox and Austin McLeod on October 14, 2019 Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(3)

The NLRB continues to issue decisions on a variety of interesting issues. On October 10, the Board held, in LA Specialty Produce Co., 368 NLRB No. 93 (Oct. 10, 2019), that an employer’s strong confidentiality protections and limited media availability rules were lawful, and in so doing, clarified the analysis under the newly-issued Boeing standard, … Continue Reading

NLRB Finds Employer Lawfully Terminated “Known” Union Supporter Despite Finding Its Justification Was Pretextual

By Steven Porzio and Laura Franks on August 10, 2019 Posted in General Counsel, NLRA, NLRB, Section 8(a)(3), Unfair Labor Practices

In a 2-1 decision issued on August 2, 2019, the National Labor Relations Board (the “Board”) in Electrolux Home Products, Inc., 368 NLRB No. 34 (2019) reversed an Administrative Law Judge’s (“ALJ”) decision, and held that Electrolux’s discharge of a “known” union supporter employee did not violate the National Labor Relations Act (“NLRA” or “Act”), … Continue Reading