Labor Relations Update

Tag Archives: collective bargaining

No Limits: Board Finds Hotel Improperly Limited Bargaining Subjects

By Joshua Fox and Megan Childs on Posted in NLRA, NLRB, Section 7, Section 8(a)(5)
On December 16, 2022, the National Labor Relations Board (“NLRB” or “Board”) issued its decision in Troutbeck Company, LLC d/b/a Brooklyn 181 Hospitality, LLC, among the latest in an eventful string of rulings over the last two weeks.  In a 2-1 decision (Chairman McFerran and Member Prouty in the Majority, with Member Ring dissenting), the … Continue Reading

President Biden Signs Executive Order Requiring Project Labor Agreements for Large-Scale Federal Construction Projects ($35 Million)

By Paul Salvatore, Joshua Fox and Ethan Picone on Posted in Uncategorized
On February 4, 2022, President Biden signed an Executive Order on Use of Project Labor Agreements for Federal Construction Projects (the “Order”), which requires the federal government to require a project labor agreement (“PLA”) before awarding any “large-scale construction contract,” defined as a contract for which the estimated cost is $35 million or more.  The … Continue Reading

NLRB Plans to Revise Joint Employer Standard Once Again

By Mark Theodore, Joshua Fox and Timothy Kelly on Posted in Uncategorized
On Friday, December 10, 2021, the Board announced in its regulatory agenda that it plans to engage in rulemaking on the standard for determining whether two employers are “joint employers” under the NLRA.  It remains to be seen exactly what the contours of the new joint-employer rule would be, although it has been widely predicted … 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

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

A Return to Clarity: Traditional Joint Employer Test Reinstated

By Joshua Fox on Posted in Joint Employer, NLRA, NLRB
As we noted last week, one of the more controversial Obama-Board rulings expanding joint employer liability was overruled this past week.  In a widely-predicted 3-2 decision (Miscimarra, Kaplan, Emanuel), the NLRB, in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), reinstated the traditional standard that had been followed for more than 30 years. Under … 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

NLRB Majority, Management Rights Clause Must Be Specific To Enable Employer To Make Unilateral Changes

By Mark Theodore on Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(a)(5), Unfair Labor Practices
Collective bargaining agreements, do not, and cannot cover every issue that will arise during their term.  Matters concerning terms and conditions of employment that are not addressed in the labor contract have to be negotiated before changes can be made.  Sometimes, however, the parties agree that management can make changes to certain terms and conditions of … 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

Ebola and Potential Labor Relations Issues

By Scott Faust on Posted in Collective Bargaining, Healthcare Employers, Non-Union employers, Protected activity, Strikes
The Ebola panic presently sweeping the U.S. raises a host of potential issues for employers.  We recently provided guidance to help employers ensure employee safety while also complying with legal obligations under the Americans with Disabilities Act and similar laws.  In addition, the Occupational Health & Safety Administration (OSHA) recently released a comprehensive summary of … Continue Reading

Supreme Court Invalidates Recess Appointments To NLRB: Several Labor Board Decisions Now In Doubt

By Mark Theodore on Posted in Collective Bargaining, NLRA, NLRB, Recess appointments, Unfair Labor Practices, Workplace Investigations
In a rare 9-0 decision issued today, the United States Supreme Court invalidated the recess appointments President Obama made to the NLRB on January 4, 2012, while the Senate was in a three day recess.  The decision in National Labor Relations Board v. Noel Canning (USSC June 26, 2014) means that the NLRB was operating without the requisite … Continue Reading

Contract Language Requires Continued Wage Increases Even After Expiration, rules divided NLRB

By Mark Theodore on Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Section 8(a)(5)
The process of collective bargaining is filled with nuance and sublety.  Unlike other business negotiations, there is often a dance that takes place as the parties attempt to reach an agreement.  Given the Act’s mandate that the parties “meet and confer” at “reasonable times” to try to reach an agreement, it is legally impossible to … Continue Reading

NLRB Acting General Counsel Clarifies Duty to Provide Information in Bargaining

By Scott Faust on Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, General Counsel, NLRB, Section 8(a)(5)
In a May 17 memorandum, NLRB Acting General Counsel Lafe Solomon furnished guidelines to Regional Directors concerning parties’ obligation to provide information in collective bargaining negotiations.  GC Memorandum 11-13  traces the development of two different analytical frameworks for assessing a party’s obligation to provide requested information to its bargaining counterpart.  The first applies to cases involving … Continue Reading

Clearance No Longer Required for Some First Contract Remedies.

By Ronald Meisburg on Posted in Uncategorized
This week NLRB Acting General Counsel Lafe Solomon announced in Memorandum GC 11-06 that certain special remedies in first contract bargaining cases could be sought by Regional Directors without getting further approval. Specifically, the Acting General Counsel said that “notice-reading, certification-year-extension, and bargaining-schedule remedies have been authorized when certain fact patterns are present. Accordingly, when … Continue Reading

NLRB Adopts Enhanced Remedies in Refusal to Bargain Case

By Ronald Meisburg on Posted in Uncategorized
The National Labor Relations Board has ordered an employer to bargain with a union for at least 16 hours per week and to submit a progress report to the NLRB Regional Director every 30 days.  The case, Gimrock International involved an employer who, the Board found, had for several years failed to bargain in good faith for a first contract with the union … Continue Reading
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