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
It is mid-November, and the Board is at a full complement, and even has a new General Counsel. While we haven’t seen anything significant (or really, anything at all) come out of the newly constituted Board we know the new members are feverishly working on getting some decisions out. The full complement of the Board will last only a few … 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
The NLRB announced today that Marvin E. Kaplan was sworn in as the agency’s newest Board member. Member Kaplan’s term expires August 27, 2020. The Board complement now stands at four of five members. Congress delayed confirmation of the President’s other appointee, William Emanuel, until at least September. Assuming Mr. Emanuel is confirmed when Congress returns … 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
We are on the verge of the Board majority changing for the first time in approximately a decade. The President’s two appointees, if confirmed, will bring the Board up to a full five members. After the new members are seated we likely will see big changes to the law. In the meantime, the Board continues to … 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
When an employer and a union sit down to bargain they often agree to ground rules for how negotiations are to be conducted. A common ground rule, for example, is for the parties to agree to address “non-economic” items before addressing economic proposals. Other ground rules include things like confidentiality of negotiations (becoming increasingly rare as unions want to take their … Continue Reading
A significant change in NLRB precedent during the last few years was the added requirement that an employer bargain over discretionary aspects of discipline in the period between the union acquiring representational rights and the first contract. Given the limited set of circumstances one doesn’t see a whole lot of these cases. A recent NLRB … Continue Reading
During the last several years, the NLRB has overturned a great deal of existing precedent. Among other changes, the Board has required bargaining over discipline in newly organized units, found graduate students to be employees entitled to organize, and found that two employers may have to bargain together. The Board also changed the longstanding rule … Continue Reading
The last few decisions issued by the NLRB have addressed a wide spectrum of rather unique situations. Just in the last several days we saw decisions involving a combative registered nurse and a human resources representative threatening unionization. So, perhaps, one of the Board’s most recent decisions is not all that unusual….it simply involves a case … Continue Reading
One of the most interesting things about labor relations is the unusual situations human resources professionals have to deal with on a day to day basis. If you are at a cocktail party with a human resources professional, ask them what the most unusual thing they’ve ever encountered on the job and chances are you’ll … Continue Reading
The NLRB recently issued a rare decision completely dismissing all allegations against an employer; rarer still because it was unanimous. In Brooke Glen Behavioral Hospital, 365 NLRB No. 79 (May 15, 2017) the NLRB was confronted with a situation where an employee-union adherent engaged in behavior ultimately found to be inappropriate and unprotected. The employer, a … Continue Reading
The change in a presidential administration always brings changes to government agencies, including the NLRB, as new appointments are made reflecting the policy preferences of the administration. The NLRB is not immune to this change and it has been historical practice for the president to appoint three members from the party of the administration and … Continue Reading
Of all the changes to the law the NLRB has made in the last several years, the most significant involve how the agency determines bargaining units. For example, the NLRB’s decision in Specialty Healthcare drastically altered the manner in which bargaining units were determined by the Regional Directors and the NLRB. Also, the NLRB’s ambush election rules also … Continue Reading
The Supreme Court has dealt another blow to the stability of the National Labor Relations Board. In a 6-2 decision, in, National Labor Relations Board v. SW General, Inc. DBA Southwest Ambulance, USSC Case No. 15-1251 (March 21, 2017), the Court held that the NLRB’s prior Acting General Counsel, Lafe Solomon, who served as acting GC while awaiting … Continue Reading
