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
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 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
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
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
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 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
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
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
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
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
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
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
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
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
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
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
The Board’s fiscal year ended on September 30 with a whimper instead of a bang. We saw a few decisions in the usual year end flurry but most of the major Board initiatives were advanced in the last two years, and so this probably is a calm before the Presidential election. Yet change still is occurring. … Continue Reading
The process of collective bargaining is filled with nuance and sublety. Unlike other business negotiations, there is often a dance that takes place as the parties attempt to reach an agreement. Given the Act’s mandate that the parties “meet and confer” at “reasonable times” to try to reach an agreement, it is legally impossible to … Continue Reading
The slow pace at the NLRB continues this Spring, as only one or two decisions are issued each week. Recent decisions, one from the NLRB and one from the District of Columbia Court of Appeals, are worth noting because they illustrate recurring themes under the NLRA. Protecting The Identity Of Employee Informants In Alcan … Continue Reading
In a May 17 memorandum, NLRB Acting General Counsel Lafe Solomon furnished guidelines to Regional Directors concerning parties’ obligation to provide information in collective bargaining negotiations. GC Memorandum 11-13 traces the development of two different analytical frameworks for assessing a party’s obligation to provide requested information to its bargaining counterpart. The first applies to cases involving … Continue Reading
Employers faced with evidence of employee misconduct often conduct investigations. In many cases, there is no direct evidence. Oftetimes, there exists conflicting versions of events, and so witness statements are obtained. The employer then can consider all the aspects of what happened, taking into consideration who saw what, and the candor of employees. For over 32 years, such … Continue Reading
