Labor Relations Update

Tag Archives: Arbitration

Requiring Employees to Maintain the Confidentiality of Arbitration Proceedings Held to be Lawful Under the NLRA…For Now

By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
In a recent decision by the NLRB, the Board upheld the lawfulness, in part, of an arbitration agreement that required employees to maintain the confidentiality of the arbitration proceedings, including the discovery process and the hearing. Dish Network, LLC, 370 NLRB No. 97 (March 18, 2021). However, Chairman McFerran’s considerable dissent likely signals that the … Continue Reading

Overruling District Court, Second Circuit Affirms Individual Employees Are Bound By Arbitration Award Prosecuted By Their Union

By Paul Salvatore, Joshua Fox and Jacob P. Tucker on Posted in Uncategorized
On July 29, 2020, the United States Court of Appeals for the Second Circuit (the “Second Circuit”) handed down what amounts to a significant win for the collectively-bargained dispute-resolution process set forth in the agreement between ABM Industry Groups, LLC (“ABM”) and its Union, the International Union of Operating Engineers, Local 30 (“Local 30” or … Continue Reading

NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements

By Mark Theodore, Joshua Fox and Jacob L. Hirsch on Posted in Uncategorized
In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality provision that arguably restricted an employee participating in the arbitration process from disclosing terms and conditions of employment violates the NLRA. The Board held, … Continue Reading

Federal Appeals Court Vacates Arbitration Award, Concluding Arbitrator Issued Own “Brand of Industrial Justice”

By Mark Theodore and Eric Novak on Posted in Arbitration
In the field of labor relations, there exist some rare occurrences, things that happen so seldom that it seems as if they are impossible.  As we’ve previously discussed, one such “unicorn sighting” is the NLRB overturning an Administrative Law Judge’s credibility determinations. Another event that falls in the category of “super rare” is a court … Continue Reading

NLRB Gives End of Year Gift for Employers, Restores Longstanding Standard for Deferring to Arbitral Decisions

By Joshua Fox, Mark Theodore and Heylee Bernstein on Posted in Arbitration, Deferral, NLRA, NLRB, Section 8(a)(1), Section 8(a)(3), Unfair Labor Practices
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

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

Is Deferral to Labor Arbitration Awards in Jeopardy?

By Ronald Meisburg on Posted in Arbitration, Deferral, NLRA, NLRB
The National Labor Relations Board has issued a press release announcing its intention to revisit precedent created under a pair of Board decisions nearly 59 and 30 years old, respectively.  The precedent involves under what circumstances the NLRB will defer to decisions of labor arbitrators in cases where there are pending NLRB unfair labor practice charges … Continue Reading

D.R. Horton and the Doctrine of Non-Acquiescence

By Ronald Meisburg on Posted in Arbitration, NLRB
Today’s decision by the U.S. Court of Appeals for the Fifth Circuit in D.R. Horton, Incorporated v. National Labor Relations Board, is a victory for employers who seek to channel work related disputes (other than NLRB charges) into an arbitration system which does not permit class action claims in either the arbitration or in court.  But the … Continue Reading

A Heaping Helping of Bad Law and a Side of Full Disclosure

By Ronald Meisburg on Posted in Uncategorized
In one of its last rulings before Member Becker’s recess appointment ended, the National Labor Relations Board (“NLRB”) has held that individual agreements between an employer and an employee covered by the National Labor Relations Act (“NLRA”), which require the arbitration of employment-related claims arising under other federal and state statutes, but do not allow … Continue Reading

The Lull Before The Storm: Blizzard Of NLRB Activity Coming

By Mark Theodore on Posted in Bargaining units, Duty to furnish information, Healthcare Employers, NLRA, NLRB, Protected activity, Rulemaking, Section 7, Section 8(a)(1), Section 9(b), Witness statements
The mid-point of Summer has passed.  Although the NLRB has not issued a major decision in several weeks, the agency has not been slacking off this Summer.  In a typical year, August and September are the busiest months for the NLRB, because the federal government’s fiscal year ends September 30.  During the final weeks of the … Continue Reading

NLRB GC To Regional Directors: Scrutinize Arbitration Decisions That May Implicate the NLRA

By Mark Theodore on Posted in Arbitration, Deferral, General Counsel, NLRB
The Acting General Counsel of the NLRB, Lafe Solomon, continued to shake up the way matters are handled at the agency, by issuing new guidelines for the handling of pre- and post-arbitration cases.  The new policy guidelines will have an immediate impact on cases where the employment action (usually a discharge) has prompted both a grievance (alleging … Continue Reading
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