Labor Relations Update

Tag Archives: NLRB

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 Puts a Finer Point on Its Community of Interest Test with a New Three-Step Analysis

By Michael Lebowich and Laura Franks on Posted in Bargaining units, NLRA, NLRB, Specialty Healthcare
Still hard at work as we head into mid-September, the National Labor Relations Board, in a 3-1 decision (Chairman Ring and Members Kaplan and Emanuel in the majority, Member McFerran dissenting) announced a three-step test which clarifies how petitioned-for partial workforce units are analyzed under the traditional community of interest factors. In 2017, the Board … Continue Reading

NLRB Dumps Longstanding “Clear and Unmistakable Waiver” Standard for More Employer-Friendly “Contract Coverage” Test

By Mark Theodore and Joshua Fox on Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Unfair Labor Practices
As we near the end of the agency’s fiscal year on September 30, the NLRB is churning out many significant decisions.  On September 10, the Board issued a sweeping decision concerning an issue that has divided the NLRB and D.C. Circuit Court of Appeals (as well as the First and Seventh Circuits, and partially, the … Continue Reading

Board Affirms Right to Unilaterally Implement Changes to Benefit Plans Based on Waiver, Foreshadowing Potentially Looser Standard for Contractual Waivers

By Peter D. Conrad and Joshua Fox on Posted in NLRA, NLRB, Section 8(a)(5)
The NLRB continues to churn out decisions post-Labor Day.  On September 4, in a 2-1 decision,  (Chairman Ring and Member Kaplan, with Member McFerran dissenting), the NLRB found that  E.I. DuPont De Nemours did not violate the NLRA by unilaterally implementing changes to its company-wide retiree medical and dental plans based on the unions’ waiver … Continue Reading

National Labor Relations Board: Labor Day Roundup

By Mark Theodore, Joshua Fox and Jacob P. Tucker on Posted in Employer policies, NLRA, NLRB, Off-duty Access, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices
While much of the country spent the last week of summer enjoying the last few days of sun, the National Labor Relations Board spent the week before its eponymous three-day weekend churning out a couple of important decisions. A brief round-up of the Board’s recent activity in areas related to the intersection of Section 7 … 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

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 Discipline of Employees Engaging In “Intermittent Strikes” Lawful: NLRB Majority

By Mark Theodore, Joshua Fox and Jacob L. Hirsch on Posted in NLRA, NLRB, Section 7, Section 8(a)(1), Strikes
This summer has been punctuated by walkouts.  We have seen walkouts in support of a $15 minimum wage and walkouts to protest the sale of goods to the government. Walking off the job is, of course, a staple of labor action, and generally speaking, employees are protected by the NLRA when the walkout is over … Continue Reading

Independence Day Comes Early For Employees Seeking To Shed Union Representation

By Mark Theodore and Joshua Fox on Posted in Bargaining units, NLRA, NLRB, Section 8(a)(5), Unfair Labor Practices
On the eve of Independence Day, the NLRB, in a 3-1 decision (Member McFerran dissented), clarified the law concerning withdrawal and enunciated a new framework for determining whether a union has retained majority support at the conclusion of a contract term. In Johnson Controls, Inc., 368 NLRB No. 20 (2019), the Board significantly streamlined the … Continue Reading

Employers No Longer Have To Allow Union Representatives Use of Public Areas, NLRB Majority Rules

By Mark Theodore on Posted in NLRA, NLRB, Section 8(a)(1), Solicitation, Uncategorized
Citing judicial criticism, as well as the original Supreme Court decisions on the issue, the NLRB swept away years of precedent permitting union representatives to access public areas of an employer’s premises. In UPMC Presbyterian Shadyside, 368 NLRB No. 2 (June 14, 2019), the NLRB was confronted with the findings that an employer committed unfair … 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

Using a Cat to Chase the Inflatable Rat: NLRB General Counsel Urged Reconsideration of Board Precedent Regarding Banners and Signal Picketing of Neutral Employers

By Michael Lebowich and Joshua Fox on Posted in Advice, NLRA, NLRB, Section 8(b)(1)(A)
Continuing its efforts to overturn precedent, the NLRB General Counsel’s Division of Advice has issued a new advice memorandum looking to strike at the most recognizable sign of unionism in urban areas today – – the inflatable rat that is used to signal a labor dispute to the public. It has been long held by the Supreme … 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 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

Are Charter Schools Covered by the National Labor Relations Act? NLRB to Reconsider Its Jurisdiction over Charter Schools

By Mark Theodore, Joshua Fox and Austin McLeod on Posted in Bargaining units, Decertification elections, NLRA, NLRB, Section 7
On February 4, the NLRB granted United Federation of Teachers, Local 2, AFT, AFL-CIO’s (the “Union”) request for review of the Regional Director’s Decision and Direction of Election concerning a decertification petition filed by several teachers at a charter school.  In so doing, the Board invited filing of briefs regarding whether the Board should decline … Continue Reading

Employee’s Complaint About Low Tippers Not Protected Concerted Activity, NLRB Majority Rules

By Mark Theodore on Posted in NLRA, NLRB, Protected activity, Section 7, Uncategorized, Unfair Labor Practices
The right of employees to band together for purposes of bringing grievances to their employer is at the very core of the National Labor Relations Act, as embodied in Section 7. This right is called protected concerted activity.  In order to determine whether an employee is, in fact, engaged in protected concerted activity, it is necessary to … 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

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

Decertification Petition Was Improperly Dismissed, NLRB Rules

By Mark Theodore on Posted in Decertification elections, NLRA, NLRB, Protected activity, Representation Elections, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices
Recently, we explored how the NLRB’s rules for determining the timeliness of a representation can be confusing.  Another area of complexity comes from whether a decertification petition will be processed in the face of unfair labor practice charges filed by the incumbent union.  This implicates the Board’s “blocking policy,” which is a set of guidelines designed to address … Continue Reading

Employer’s Litigation Hold Not Unlawful, NLRB Division of Advice Concludes

By Mark Theodore on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized
Last year about this time, the NLRB changed the standard for reviewing handbook rules.  The new standard takes into consideration the fact  there are many other interests other than the NLRA at play in a workplace, and seems to have quieted the frenzied scrutiny of employer policies. Over the years, the heightened scrutiny of employer policies has resulted in … Continue Reading
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