Labor Relations Update

Category Archives: General Counsel

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NLRB General Counsel Issues Guidance on the Duty to Bargain During Emergencies

By Peter D. Conrad, Joshua Fox and Scott Tan on Posted in Advice, Collective Bargaining, COVID-19, General Counsel, Healthcare Employers, NLRA, NLRB, Section 8(a)(3), Section 8(a)(5), Unfair Labor Practices
On March 27, 2020, NLRB General Counsel Peter Robb issued Memorandum GC-20-04 to provide guidance to NLRB regional offices and the general public. Acknowledging that “we are [currently] in an unprecedented situation,” the General Counsel provided summaries of several NLRB decisions discussing how, if at all, an employer’s duty to bargain under  NLRA Section 8(d) … Continue Reading

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

By Steven Porzio and Laura Franks on Posted in General Counsel, NLRA, NLRB, Section 8(a)(3), Unfair Labor Practices
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 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

NLRB Rules Employer’s Handbook Statement That Benefit Available To “Non-Union Employees” Violates Act

By Mark Theodore on Posted in Employer policies, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized
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

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

Unanimous NLRB: Context Matters – Asking Employee Whether He Saw Union Organizer Not Unlawful Interrogation

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Section 8(a)(1), Uncategorized
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

NLRB Majority: Unqualified Notice to Picket Jobsite Where Neutrals Are Present Violates Act

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Uncategorized, Unfair Labor Practices
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

NLRB Rejects “Constructive Denial of Transfer” and “Threat” Theories of Unfair Labor Practice Liability

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized, Unfair Labor Practices
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

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

NLRB General Counsel Issues Handbook on Handbook Rules

By Michael Lebowich, Joshua Fox and Jay M. Cohen on Posted in Advice, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Section 7, Uncategorized
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

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

Unicorn Sighting: NLRB Overturns ALJ Credibility Determination

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Uncategorized
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

Impulse Control? NLRB Finds Employee’s Misconduct To Be Deliberate and “Predetermined” and Not Protected

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized, Unfair Labor Practices
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

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 Restores Ability Of ALJs To Accept Settlement Offers Over Objection of Charging Party and General Counsel- Overrules One Year Old Precedent

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Uncategorized, Unfair Labor Practices
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

NLRB GC Boldly Defines Direction of Board Prosecution in New GC Memo

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Uncategorized, Unfair Labor Practices
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

NLRB Gains a New General Counsel With Senate Confirmation of Peter B. Robb

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Uncategorized
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 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

Senate Confirms Appointment of William J. Emanuel to NLRB; Board Has Full Complement,- For Now

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Uncategorized
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

NLRB Ditches Effort To Expand Weingarten Rights to Non-Union Workplaces

By Mark Theodore on Posted in Advice, General Counsel, NLRA, NLRB, Non-Union employers, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations
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

NLRB: Employer’s Side Letter Explaining NLRB Notice Breached Settlement Agreement and Warranted Default Judgment

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Section 8(a)(1), Uncategorized
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

NLRB’s Enforcement of Secondary Boycott Restrictions Does Not Place Union Agent in Involuntary Servitude Nor Does It Encroach on Union’s Religious Freedom

By Mark Theodore on Posted in Duty to provide information, General Counsel, NLRA, NLRB, Protected activity, Uncategorized, Unfair Labor Practices
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

NLRB’s Attempt To Incrementally Expand Weingarten Rights Rebuffed By Federal Appeals Court

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations
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

Divided NLRB Rules Employer Policy Protecting Customer Information Is Lawful

By Mark Theodore on Posted in Confidentiality, Employer policies, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized
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
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