Labor Relations Update

Category Archives: Section 8(a)(5)

Subscribe to Section 8(a)(5) RSS Feed

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NLRB: Employer’s Reasons For Policy Changes Kept Union’s Information Request Alive Even After Proposals Withdrawn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

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

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

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

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

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

Turns Out Attempting To Insert New Term Into Collective Bargaining Agreement Not Agreed To In Negotiations Violates The Law…Who Knew?

By Mark Theodore on Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Section 8(a)(5), Section 8(b)(3), Uncategorized, Unfair Labor Practices
As we have noted previously, the make-up of the Board currently stands at four out of five total members, divided evenly between two warring factions making it pretty much impossible to change the law which requires a majority.  It also means the precedent the new General Counsel has highlighted will not be reviewed until a … Continue Reading

NLRB Reverses Information Request Decision…After Court Reverses Board Decision

By Mark Theodore on Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices
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

On A Roll: Board Finds No Bargaining Obligation Attaches to Unilateral Actions Consistent with Past Practice

By Mark Theodore and Joshua Fox on Posted in Collective Bargaining, NLRA, NLRB, Section 8(a)(5)
On the eve of Chairman Miscimarra’s departure, the Board has been churning out decision after decision, many of them reversing precedents from the last 8 years. Today, the NLRB, in Raytheon Network Centric Systems, 365 NLRB No. 161 (December 15, 2017), returned to the longstanding law of the NLRB that there is no duty to … Continue Reading

Novel Theory Related To Violation Of Bargaining “Ground Rules” Fails (Fortunately)

By Mark Theodore on Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices
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

Case Demonstrates Perils Of Refusing To Discuss Issues With Union

By Mark Theodore on Posted in Collective Bargaining, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor Practices
A significant change in NLRB precedent during the last few years was the added requirement that an employer bargain over discretionary aspects of discipline in the period between the union acquiring representational rights and the first contract.  Given the limited set of circumstances one doesn’t see a whole lot of these cases.  A recent NLRB … Continue Reading

Circuit Court Rejects Attack On NLRB’s New Witness Rule

By Mark Theodore on Posted in Collective Bargaining, Due Process, Duty to furnish information, Duty to provide information, General Counsel, Investigations, NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices, Witness statements
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

Union Adherent’s Antics Not Protected By Act, NLRB Rules

By Mark Theodore on Posted in Bargaining units, Collective Bargaining, General Counsel, Healthcare Employers, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices
The NLRB recently issued a rare decision completely dismissing all allegations against an employer; rarer still because it was unanimous.  In Brooke Glen Behavioral Hospital, 365 NLRB No. 79 (May 15, 2017) the NLRB was confronted with a situation where an employee-union adherent engaged in behavior ultimately found to be inappropriate and unprotected. The employer, a … Continue Reading

Employer Did Not Violate Duty To Bargain Over Change To Christmas Gift Policy, NLRB Rules

By Mark Theodore on Posted in Collective Bargaining, Employer policies, General Counsel, NLRA, NLRB, Section 8(a)(5)
What would the holiday season be without a Christmas gift case?  A perennial problem for labor relations personnel is whether the yearly Christmas turkey given to employees is something that an employer must bargain over before (bah humbug) discontinuing. See, e.g., Q-1 Motor Express, Inc., 323 NLRB 767, 775 (1997). In a decision issued shortly … Continue Reading

NLRB Majority Stuns Nation By Ruling Employer Has Management Right, Chairman Dissents

By Mark Theodore on 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

By Mark Theodore on 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

Non-Compete Agreement A Mandatory Subject of Bargaining, NLRB Rules

By Mark Theodore on 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

NLRB Majority, Management Rights Clause Must Be Specific To Enable Employer To Make Unilateral Changes

By Mark Theodore on 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

No Duty To Bargain Over Discipline During Contract Hiatus, NLRB Division of Advice

By Mark Theodore on Posted in Advice, Collective Bargaining, Due Process, General Counsel, NLRA, NLRB, Section 8(a)(5), Uncategorized
The NLRB has been active but quiet during the last few months as the agency quietly reaffirms decisions nullified by the Supreme Court.  By all accounts, however, and as history has proved, the NLRB is getting ready to issue an onslaught of law-changing decisions as we head into the holiday season.  This onslaught of change … Continue Reading

NLRB Overrules Another Longstanding Precedent: Witness Statements No Longer Exempt From Disclosure

By Mark Theodore on Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(a)(5), Uncategorized, Witness statements
The precedents are falling fast.  Last week the NLRB overruled the five decade old Bethlehem Steel decision, and now another longstanding precedent has fallen.  The NLRB issued a decision overruling Anheuser-Busch, Inc., 237 NLRB 982 (1978), the case that held that witness statements obtained during an employer investigation of workplace misconduct are exempt from disclosure … Continue Reading

Holiday Season Extravaganza: NLRB Issues Flurry Of Law Changing Decisions

By Mark Theodore on 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

By Mark Theodore on 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 Reverses NLRB Finding Of No Impasse

By Mark Theodore on 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
LexBlog