Labor Relations Update

Category Archives: NLRB

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Union’s Failure to Provide Factual Reasons as to Why It Needed Certain Information Privileged Employer to Deny Request, NLRB Rules

In prior posts, we’ve discussed how information requests in the context of labor relations can be deceptively complex to comply with for employers.  We’ve seen how an employer’s assertion of confidentiality, standing alone, is not enough to justify denying a request.  Sometimes, albeit rarely, the NLRB has determined the subject of some requested information is … Continue Reading

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

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

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

Buttoning Up Rules on Union Insignia – Board Makes It Easier for Employers to Restrict Size and Scope of Union Buttons For Those With Customer Contact Work

The Board continues churning out precedent-setting decisions as year-end approaches.  Two days before the Christmas holiday, in Wal-Mart Stores, Inc., 368 NLRB No. 146 (Dec. 16, 2019), the NLRB applied its new view on handbook rules—the Boeing test—to Wal-Mart’s policy that employees can only wear “small, non-distracting” union insignia in the workplace, holding that the … Continue Reading

Busy Board Returns to Rule Permitting Workplace Confidentiality Restrictions during an Employer’s Investigation

As anticipated, in one of the last decisions before the end of Member McFerran’s term, the NLRB issued another important opinion.  Reverting back to precedent that preceded a 2015 decision, the Board, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), held that an employer’s confidentiality restrictions for information relating to … Continue Reading

NLRB Eliminates Many “Quickie” Election Rule Components

The National Labor Relations Board issued a new rule on Friday that will significantly amend NLRB election rules and procedures.  Expected to take effect on April 16, 2020, the new rules, in large part, reverse course from the “quickie” election rules of 2014, and restore reasonableness to election procedures. Key provisions from the Board’s new … Continue Reading

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

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

Unpaid Interns are Not Statutory Employees, NLRB Concludes

The National Labor Relations Board recently held that a group of employees who were advocating on behalf of unpaid interns were not engaged in protected activity because the interns were not “employees” as that term is defined in Section 2(3) of the National Labor Relations Act.  In so doing, the Board reaffirmed its longstanding precedent … Continue Reading

No, Unions Do Not Have A Free Speech Right To Engage In Unlawful Secondary Boycott Activity, Federal Appeals Court Rules

On October 28, 2019, the Ninth Circuit, following in the footsteps of the D.C. Circuit and the Second Circuit, affirmed an order entered by the NLRB confirming that prohibitions on secondary boycotts under Section 8(b)(4)(i)(B) of the NLRA do not violate the First Amendment of the United States Constitution. Nat’l Labor Relations Bd. v. Int’l … Continue Reading

NLRB Continues to Aid Workers in Ousting Unions

The NLRB recently reiterated its position that the agency should not be so quick to dismiss petitions filed by employees seeking to decertify a union. The Board, in a 3-1 decision, held that if a petition for decertification is properly filed prior to the employer entering into an agreement settling unfair labor practice charges in … Continue Reading

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

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 Proposes Rule to Settle Once and For All: Student Teaching and Research Assistants Are Not “Employees”

As anticipated, today the National Labor Relations Board published a Notice of Proposed Rulemaking (“NPRM”) proposing a regulation which would establish that students at private colleges and universities who perform any services related to their studies for compensation, including teaching and research, are not “employees” within the meaning of Section 2(3) of the National Labor … Continue Reading

NLRB Tips Scales in Favor of Employers When Drawing Distinctions Between Claims of “Inability to Pay” Versus “Competitive Disadvantage,” and “Surface” Versus “Hard” Bargaining

In recent weeks, the National Labor Relations Board has issued several employer-friendly decisions, and its September 13 decision in Arlington Metals Corp., 368 NLRB No. 74 (2019) was no exception. In Arlington Metals, the Board considered: (1) whether an employer’s statements during bargaining in response to a union’s economic proposals amounted to an asserted “inability … Continue Reading

NLRB Puts a Finer Point on Its Community of Interest Test with a New Three-Step Analysis

Still hard at work as we head into mid-September, the National Labor Relations Board, in a 3-1 decision (Chairman Ring and Members Kaplan and Emanuel in the majority, Member McFerran dissenting) announced a three-step test which clarifies how petitioned-for partial workforce units are analyzed under the traditional community of interest factors. In 2017, the Board … Continue Reading

NLRB Dumps Longstanding “Clear and Unmistakable Waiver” Standard for More Employer-Friendly “Contract Coverage” Test

As we near the end of the agency’s fiscal year on September 30, the NLRB is churning out many significant decisions.  On September 10, the Board issued a sweeping decision concerning an issue that has divided the NLRB and D.C. Circuit Court of Appeals (as well as the First and Seventh Circuits, and partially, the … Continue Reading

Board Affirms Right to Unilaterally Implement Changes to Benefit Plans Based on Waiver, Foreshadowing Potentially Looser Standard for Contractual Waivers

The NLRB continues to churn out decisions post-Labor Day.  On September 4, in a 2-1 decision,  (Chairman Ring and Member Kaplan, with Member McFerran dissenting), the NLRB found that  E.I. DuPont De Nemours did not violate the NLRA by unilaterally implementing changes to its company-wide retiree medical and dental plans based on the unions’ waiver … Continue Reading

National Labor Relations Board: Labor Day Roundup

While much of the country spent the last week of summer enjoying the last few days of sun, the National Labor Relations Board spent the week before its eponymous three-day weekend churning out a couple of important decisions. A brief round-up of the Board’s recent activity in areas related to the intersection of Section 7 … Continue Reading

NLRB: Employer Did Not Unlawfully Discontinue Christmas Bonus

Summer is winding down but the NLRB continues to be a source of vigorous activity.  The Board recently issued a sweeping decision regarding the lawfulness of arbitration agreements.  Also, the Board announced its intention to change the so-called ambush election rules.  Of course, the Board continues to issue decisions on a regular basis.  Discussion of some of … Continue Reading

NLRB Issues “Epic” Decision Concerning the Intersection of Mandatory Arbitration Agreements and NLRA Section 7 Rights

On August 14, 2019, the NLRB issued its first decision addressing employer conduct related to mandatory arbitration agreements and Section 7 activity since the Supreme Court decided Epic Systems Corp v. Lewis, 584 U.S. __, 138 S.Ct. 1612 (2018).  In Epic Systems (discussed more fully here), the Supreme Court held that agreements between employers and … Continue Reading

NLRB Announces Three Proposed Rulemaking Amendments Aimed at Overhauling Union Election Procedures – With More to Come!

The National Labor Relations Board published a Notice of Proposed Rulemaking (“NPRM”) on Monday, August 12, 2019, proposing three amendments to its current rules and regulations aimed at addressing representation election procedures – with potentially more to come.  The NLRB made sweeping changes to the election procedures through rulemaking in 2014, which have been criticized as … Continue Reading

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

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

Employer’s Discipline of Employees Engaging In “Intermittent Strikes” Lawful: NLRB Majority

This summer has been punctuated by walkouts.  We have seen walkouts in support of a $15 minimum wage and walkouts to protest the sale of goods to the government. Walking off the job is, of course, a staple of labor action, and generally speaking, employees are protected by the NLRA when the walkout is over … Continue Reading

Recent ALJ Decision Provides Important Nuance Regarding Workplace No Recording Rules

In late 2017, the NLRB in Boeing Company, 365 NLRB No. 154 (2017), established a new three category system for classifying various employer policies. The new system was designed to balance a “work rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline … Continue Reading

Independence Day Comes Early For Employees Seeking To Shed Union Representation

On the eve of Independence Day, the NLRB, in a 3-1 decision (Member McFerran dissented), clarified the law concerning withdrawal and enunciated a new framework for determining whether a union has retained majority support at the conclusion of a contract term. In Johnson Controls, Inc., 368 NLRB No. 20 (2019), the Board significantly streamlined the … Continue Reading
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