Labor Relations Update

Category Archives: Collective Bargaining

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

By Steven Porzio and Laura Franks on Posted in Collective Bargaining, NLRB
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: Employer Did Not Unlawfully Discontinue Christmas Bonus

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

Employer’s Grant of Extra Holiday to All Employees Except Those Represented by Union Not Unlawful, NLRB Rules

By Mark Theodore on Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Uncategorized
Employers with union-represented employees also always have non-union employees, whether working in the office or at another worksite.  Invariably, there are differences between the wages, benefits, and terms and conditions of employment of the two groups, a natural consequence of the bargaining process.  A common situation arises when an employer makes changes in the workplace, whether it is … Continue Reading

Employer’s Campaign Prediction That Employees Would Have To Join Union And Pay Dues As Condition Of Employment Not Coercive, NLRB Majority Rules

By Mark Theodore on Posted in Collective Bargaining, NLRA, NLRB, NLRB Election Rules, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices
The NLRB currently is churning out cases and Advice Memoranda at a fairly regular pace.  We recently discussed NLRB decisions addressing information requests, handbook statements, and confidential informants. An interesting area of NLRB case law concerns campaign statements,–statements made by employer representatives during an organizing campaign.  When there is an allegation of wrongdoing, the Board evaluates such employer … 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

Another Obama-Board Decision Overturned: NLRB Reverts to Traditional Common-Law Agency Independent-Contractor Test and Foreshadows Potential Rulemaking

By Joshua Fox, Meika Freeman and Michael Lebowich on Posted in Collective Bargaining, NLRA, NLRB, Rulemaking, Section 7
On January 25, 2019, in a long-anticipated decision, the NLRB overturned another Obama-Board decision, FedEx Home Delivery, 361 NLRB 610 (2014), which modified the test for whether an individual is an “employee” or an independent contractor under the NLRA (read about that decision here).  The Board, in a 3-1 decision (Chairman Ring and Members Kaplan … 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

Employer’s Representation Petition Not Barred By Existence of Signed Contract, Divided NLRB Rules

By Mark Theodore on Posted in Collective Bargaining, Decertification elections, NLRA, NLRB, Representation Elections, Uncategorized
As we have noted at times, the human element in labor relations makes for interesting situations.  One of the more interesting issues is the timeliness of representation petitions, which, despite the existence of clear rules, can still be disrupted by human action. A union, an employee or an employer can all file a representation petition with … 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

Thorough Employer Investigation Helps Establish Employer’s “Honest Belief” of Employees’ Picket Line Misconduct

By Mark Theodore on Posted in Collective Bargaining, General Counsel, Investigations, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Strikes, Uncategorized, Unfair Labor Practices
The Board is now operating at a full complement and is issuing decisions on a fairly regular basis.  Nothing earth shattering in terms of law (which is kind of a relief) but there are some interesting issues worth discussing.  A frequent topic of discussion here is the often blurry line between what constitutes “protected” versus … 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

NLRB’s Acted More Like “Advocate Than Adjudicator” In Issuing Decision, DC Court of Appeals Concludes

By Mark Theodore on Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized, Unfair Labor Practices
When bargaining over an agreement, it is common to hear union representatives ask “why do we need such elaborate language in an agreement?  We are always reasonable.”  To which, the company usually responds, “We think you’re nifty but the next person holding your job may not be as reasonable; better to have it in writing … 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

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

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
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