Labor Relations Update

Category Archives: Bargaining units

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Special Delivery: NLRB Returns to Obama-Era Standard to Limit Employer Ability to Change a Proposed Bargaining Unit

By Michael Lebowich, Joshua Fox and Dixie Morrison on Posted in Bargaining units, NLRA, NLRB, NLRB Election Rules, Section 7, Specialty Healthcare
The National Labor Relations Board continues its December precedent merry-go-round with a return to the Specialty Healthcare, 357 NLRB 934 (2011) (“Specialty Healthcare”) standards for bargaining unit determinations.  In American Steel Construction, 372 NLRB No. 23, the Board overturned PCC Structurals, Inc., 365 NLRB No. 160 (2017) (“PCC Structurals”) (which had, itself, restored traditional community-of-interest … Continue Reading

No “Finite Fellows” in the Bargaining Unit – the Board Weighs in on Temporary Workers

By Mark Theodore, Joshua Fox and Dominique Kilmartin on Posted in Bargaining units, NLRB, NLRB Election Rules
When it comes to fellowship—and collective bargaining—it looks like “fellows” aren’t treated the same as their permanent status co-workers.  In Phoenix News Times, LLC and The Newsguild–CWA, 370 NLRB No. 84 (Feb. 10, 2021), the National Labor Relations Board (the “Board” or “NLRB”) found that workers employed at a Phoenix newspaper in a fellowship program … Continue Reading

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

By Michael Lebowich and Laura Franks on Posted in Bargaining units, NLRA, NLRB, Specialty Healthcare
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

Independence Day Comes Early For Employees Seeking To Shed Union Representation

By Mark Theodore and Joshua Fox on Posted in Bargaining units, NLRA, NLRB, Section 8(a)(5), Unfair Labor Practices
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

Are Charter Schools Covered by the National Labor Relations Act? NLRB to Reconsider Its Jurisdiction over Charter Schools

By Mark Theodore, Joshua Fox and Austin McLeod on Posted in Bargaining units, Decertification elections, NLRA, NLRB, Section 7
On February 4, the NLRB granted United Federation of Teachers, Local 2, AFT, AFL-CIO’s (the “Union”) request for review of the Regional Director’s Decision and Direction of Election concerning a decertification petition filed by several teachers at a charter school.  In so doing, the Board invited filing of briefs regarding whether the Board should decline … Continue Reading

New Joint-Employer Standard Properly Developed But Improperly Applied, Rules Federal Appeals Court

By Mark Theodore on Posted in Bargaining units, Collective Bargaining, NLRA, NLRB, Representation Elections, Uncategorized
There have been many precedent changing decisions coming from the NLRB in the last few years.  Few of these changes were more hotly contested, or farther reaching, than the Board’s decision in Browning-Ferris where it altered its longstanding joint employer test.  The new joint-employer test made it much more likely for a joint-employer relationship to be found to exist.  The decision … Continue Reading

NLRB Issues Strategic Plan for Coming Years

By Mark Theodore on Posted in Bargaining units, NLRB, NLRB Election Rules, Specialty Healthcare, Uncategorized, Unfair Labor Practices
The NLRB recently made public its NLRB Strategic Plan FY 2019-FY2022 wherein it states it wants to reduce time to handle cases before it by 5% per year at each stage of the case processing.  The Strategic Plan provides an excellent snapshot of NLRB operations (page 3) but not much can be read into, or from, this document, which is … Continue Reading

Gridlock Broken: Senate Confirms John Ring as Newest Member of NLRB

By Mark Theodore on Posted in Employer policies, NLRB, Specialty Healthcare, Uncategorized
By a vote of 50 to 48  the U.S. Senate confirmed Republican John Ring as a Member of the National Labor Relations Board, giving the agency a full five member complement.  Member Ring, whose term expires December 16, 2022, takes the seat previously held by Chairman Miscimarra. The addition of Member Ring means, of course, that the … Continue Reading

“Micro-Units” Eliminated: NLRB Overturns Specialty Healthcare

By Michael Lebowich and Lee Douthitt on Posted in Bargaining units, NLRA, NLRB, Representation Elections, Specialty Healthcare
Adding to the list of falling precedents in the waning days of Chairman Miscimarra’s term, on Friday, the NLRB reversed another of the seminal decisions of the Obama-Board when it overruled the highly controversial Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011) decision.   The 3-2 decision in PCC Structurals, Inc., 365 NLRB … Continue Reading

NLRB Hints That “Ambush” Election Regulations May Be Rescinded

By Mark Theodore on Posted in Bargaining units, NLRA, NLRB, NLRB Election Rules, Representation Elections, Rulemaking
Things are moving fast and furiously at the NLRB.  Last week we saw the new General Counsel issue a sweeping memo which rescinded many policy guidelines and initiatives of his predecessor and highlighted the Board precedent from the last eight years that may be overturned. This week the NLRB posted a Request For Information on its … Continue Reading

The Devil Is In the Details: New Board Members Likely To Change Law In Nuanced Ways

By Mark Theodore on Posted in Duty to furnish information, Duty to provide information, Employer policies, General Counsel, Investigations, NLRA, NLRB, Protected activity, Section 8(a)(1), Specialty Healthcare, Uncategorized, Unfair Labor Practices, Witness statements
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

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

NLRB’s Micro-Union Standard May Be Set For Reversal

By Mark Theodore on Posted in Bargaining units, NLRA, NLRB, Representation Elections, Section 9(a), Specialty Healthcare
Change is coming.  We noted recently that the administration is thinking about changing the newly adopted persuader regulations.  We also know that a majority of make-up of the NLRB is likely to shift very soon, and with it some of the precedents of the last few years will be reversed.  Newly appointed Chairman Miscimarra seems to be reiterating what … Continue Reading

17 Year Old Ruling In Representation Case Can Preclude New Claim For Employees, Divided NLRB Rules

By Mark Theodore on Posted in Bargaining units, NLRA, NLRB, NLRB Election Rules, Non-Union employers, Representation Elections, Rulemaking, Specialty Healthcare
Of all the changes to the law the NLRB has made in the last several years, the most significant involve how the agency determines bargaining units.  For example, the NLRB’s decision in Specialty Healthcare drastically altered the manner in which bargaining units were determined by the Regional Directors and the NLRB.  Also, the NLRB’s ambush election rules also … Continue Reading

Micro-Units under the Microscope: The Second and Fifth Circuit Courts Consider Specialty Healthcare and Its Misapplication

By Michael Lebowich, Mariya (Masha) Nazginova and Brett Schwab on Posted in Bargaining units, Collective Bargaining, NLRA, NLRB, Section 9(b), Section 9(c)(5), Specialty Healthcare
Last week, the U.S. Court of Appeals for the Second Circuit joined the Third, Fourth, Fifth, Sixth, Seventh, and Eighth Circuits in upholding the Board’s Specialty Healthcare standard for determining appropriate bargaining units under the National Labor Relations Act, although with a very skeptical eye on how it applied.  Constellation Brands, U.S. Operations, Inc. v. NLRB, … Continue Reading

Stuck With It: Labor Board Forces Employers to Recognize Bargaining Units that Contain Employees of Two or More Separate Employers

By Michael Lebowich, Corinne Osborn and Rebecca Sivitz on Posted in Bargaining units, NLRB
Returning to a decision it made 16 years ago (but was overturned just 4 years after that), the National Labor Relations Board has once again ruled that it will certify a bargaining unit containing individuals from two or more separate employers without those employers’ consent. In Miller & Anderson, Inc., Case 05–RC–079249 (July 11, 2016), … Continue Reading

Board Reverses 32-Year-Old Rule Allowing Employers to Oust Mixed-Guard Unions

By Michael Lebowich and David Bayer on Posted in Bargaining units, NLRA, NLRB, Section 9(b)
For thirty-two years, it has been a settled proposition that an employer may, upon the expiration of a contract, refuse to continue to negotiate with a “mixed-guard” union that represents its security guards. Continuing its long path of upsetting established precedent, on June 9, 2016, the National Labor Relations Board (“NLRB” or “Board”) reversed this … Continue Reading

Higher Education Alert: NLRB Trend in Easing Unionization Continues with Recent Decision

By Edward Brill and Andrew Rice on Posted in Bargaining units, NLRA, NLRB, Representation Elections
The National Labor Relations Board issued a 3-2 decision last month in Pacific Lutheran University, 361 NLRB No. 157, in which it significantly modified the standards for determining:  (1) whether college or university faculty members are managerial employees and thus not protected by the National Labor Relations Act; and (2) when the Board should decline to exercise … Continue Reading

NLRB Refines Its Test for Independent Contractor Status

By Ronald Meisburg on Posted in Bargaining units, Collective Bargaining, Representation Elections
The National Labor Relations Board, with one member dissenting, has issued a decision in which it “refines” the test it uses for determining whether it will find individuals performing services for an employer to be employees, who are covered by the National Labor Relations Act, or independent contractors, who are not.  The case is FedEx … Continue Reading

Department Store Units Decided Under Specialty Healthcare

By Ronald Meisburg on Posted in Bargaining units, Collective Bargaining, NLRA, NLRB, Specialty Healthcare
This week the NLRB decided two cases involving union organizing in large department stores. In each case an NLRB regional director applied the Board’s Specialty Healthcare test to determine whether the bargaining unit requested by the union was appropriate. In Specialty Healthcare, the Board held that a unit will be presumptively appropriate for collective bargaining … Continue Reading

Hail Mary: NLRB Regional Director Holds College Football Players are Employees

By Michael Lebowich on Posted in Bargaining units, NLRA, NLRB, Section 7, Uncategorized
On March 26, 2014, Peter Sung Ohr, the Chicago Regional Director of the National Labor Relations Board (“NLRB”) ruled that members of the Northwestern University football team receiving athletic scholarships are employees, and not students, under the National Labor Relations Act, allowing them the opportunity to unionize through an NLRB election. First and Ten: A … Continue Reading

Sixth Circuit Upholds Board’s Decision in Specialty Healthcare

By Ronald Meisburg on Posted in Bargaining units, Representation Elections, Uncategorized
In the first judicial challenge to the NLRB’s Specialty Healthcare decision, the U.S. Court of Appeals for the Sixth Circuit has upheld the Board. In Specialty Healthcare the Board held that it will find a petitioned for unit appropriate where the unit is made up of (i) an identifiable group of employees (ii) who share a community of interest with … Continue Reading

NLRB Developments Post-Election – What The Future May Hold In Labor Relations

By Mark Theodore on Posted in At-Will, Bargaining units, Employer policies, Facebook, General Counsel, Handbook, NLRA, NLRB, Off-duty Access, Section 7, Section 8(a)(1), Social Media Policies
Now that the election is over, one of the main questions being asked is, what next?  We recently held a Webinar entitled “The Latest at the NLRB and Post-Election Developments” to address this question.  It seems clear that with Congress still divided that there likely will not be much in the way of legislative change.  The pressing issues … Continue Reading

Micro Union Case Hits Federal Court Of Appeals

By Mark Theodore on Posted in Bargaining units, NLRA, NLRB, Non-Union employers, Representation Elections, Rulemaking, Section 9(b), Section 9(c)(5)
One of the NLRB’s most sweeping decisions in decades, Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26, 2011).pdf, has reached a federal appeals court, as the employer seeks to have the decision overturned.  As we have previously discussed, the Board in this case established the micro union standard, where the bargaining unit sought by a … Continue Reading
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