During the last decade, a number of NLRB decisions faulted employers for written policies that were considered to be overbroad in violation of the National Labor Relations Act. These rulings sprang largely from the NLRB’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), where the Board set forth a standard for evaluating the lawfulness of employer policies that … Continue Reading
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
How the NLRB treats employer statements made to employees in the context of union organizing or other protected activity has been a frequent topic of discussion. While the actual case law analyzing the coerciveness of an employer statement has not changed, the lawfulness of the statement often depends on the make-up of the Board at the … Continue Reading
We recently saw interesting decisions from the NLRB including cases about the employer’s duty to provide information about tax cuts, the lawfulness of litigation holds, and the validity of decertification petitions. At the end of December, a divided NLRB took on a case involving a union’s threat to picket a work location where multiple employers are present. In IBEW Local 357 (Convention Technical … Continue Reading
As we hurtle toward Labor Day, and the probable onslaught of decisions, and as NLRB Member Pearce’s tenure ends on August 27, the Board has been issuing a steady stream of cases. Many of these appear to be garden variety type cases, with a smattering of cases now dismissing the theory of a class action waiver … Continue Reading
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
Following up on the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), on June 6, NLRB General Counsel Peter Robb issued a new Guidance Memorandum (18-04) detailing how NLRB Regional Offices receiving claims of improper employment policies are to interpret employer workplace rules. As we reported this past December (here), … Continue Reading
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
As we have seen, there are few things that can be counted on in labor relations. Oftentimes, several experts look at the same problem and come to vastly different conclusions (here, here and here are some examples). What is (almost) guaranteed, however, is that the NLRB rarely disturbs the determinations made by an Administrative … Continue Reading
The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development, remember that this agency had scores of decisions overturned for lacking a proper quorum only to wait, quietly, and … Continue Reading
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
In the last few years, December has been a time of change at the NLRB. The last few Decembers have seen precedent overturned and other sweeping decisions issue from the Board. This December is no different. With Chairman Miscimarra’s term ending on December 16, a flurry of decisions issued. We saw the micro-unit, joint employer … Continue Reading
The new NLRB General Counsel Peter Robb has been fast at work. A short two weeks after being sworn in on November 17, 2017, the new General Counsel issued a memorandum making clear his intention to re-examine much of the legal precedent that was changed during the last 8 years,–and to undo many other initiatives … Continue Reading
By a vote of 49 to 46, the U.S. Senate confirmed Peter B. Robb as the General Counsel of the NLRB. Mr. Robb, who replaces former General Counsel Richard Griffin, is the 33rd person to hold the position since the NLRA was passed in 1935. We have previously discussed how the newly constituted Board is likely to change … Continue Reading
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
In a 49-47 vote today, the Senate confirmed William J. Emanuel’s appointment to the NLRB. Once Mr. Emanuel is sworn in, it will be first time since 2015 that the NLRB has had a full five members. Before 2015, years of gridlock often saw the Board at less than full strength, which resulted in all sorts of mayhem, … Continue Reading
Since the change in Presidential administrations, the main topic has turned to what rules will a newly constituted NLRB change? With the addition of Marvin E. Kaplan the Board now has four members, which makes undoing some of the past few years a difficult task. But a four member Board also means there likely will be … Continue Reading
One of the fundamental pillars of any remedy doled out by the NLRB is the agency’s requirement that the employer (or union) post a “Notice to Employees,” a bright blue poster detailing the misdeeds of the charged party. Such a Notice is required to be posted as a result of a finding of an unfair … Continue Reading
Labor Day is upon us. It is fitting, therefore, to enter the weekend with another case that exemplifies the bizarre world of labor relations. Like the case of the human resource manager who turned on his employer, or the nurse who felt her union activity protected her in screaming confrontations, we continue to see new … Continue Reading
The NLRB suffered a setback this week when its interpretation of Weingarten rights was rebuffed by the D.C. Court of Appeals. This is the same court that recently declared the agency was acting more as an “advocate than adjudicator” in a case involving access to an employer’s premises. Weingarten, which derives its name from the United … Continue Reading
Employers can prohibit the use by employees of the names, social security numbers and credit card numbers of customers in furtherance of organizational activities. If this seems like it should have been a foregone conclusion, a recent case from the NLRB shows how the agency’s continued parsing of employer policies could easily have turned this notion on its … Continue Reading
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
The advent of social media resulted in a feverish effort by the NLRB to keep up with new technology. In reality, the legal standard for evaluating whether conduct is protected concerted activity did not change. Rather, all the excitement was over the fact employees were being punished for things they said on social media, which was … Continue Reading
Labor disputes are passionate affairs. Workplace grievances elicit all sorts of strident behavior. When the dispute involves a group of employees, the effect can become magnified. The exact point at which the stridency of an employee’s behavior becomes unprotected is not always apparent, and like so much else in labor relations, the line changes with the Board’s … Continue Reading
