Labor Relations Update

Tag Archives: NLRB

NLRB: Unions Also Obligated To Provide Timely Relevant and Necessary Information Requested by Employers

By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(b)(3)
We have often reported about how an employer’s failure to adequately respond to an information request made by a union can lead to unfair labor practice charges and litigation.  Sometimes a union makes an information request for strategic reasons, not for any representational reason.  Sometimes, an employer’s response can lead to further complications. The same … Continue Reading

NLRB: Changes in Workplace Policies Not Applicable to Union Employees do not Constitute a Unilateral Action by the Employer

By Mark Theodore and Elizabeth Dailey on Posted in COVID-19, NLRB
As the NLRB continues to navigate the uncertainty in the work landscape during the ongoing COVID-19 pandemic, it seems to have stayed largely on course, regularly issuing decisions touching on a number of important topics under the Act. One such important topic that the Board has devoted recent attention to has been the issue of … Continue Reading

NLRB Reaffirms Limitations on Employers’ Ability to Solicit Employee Assistance in Anti-Union Campaigning and Confidentiality Restrictions

By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in NLRA, NLRB, Section 8(a)(1)
In maintaining business as usual as best it can amidst the ongoing COVID-19 crisis, the Board recently decided an issue concerning limitations on employer campaign tactics, and an employer’s limits in restricting discussions with employees related to terms and conditions of employment. In First American Enterprises d/b/a Heritage Lakeside, 369 NLRB No. 54 (2020), the … Continue Reading

Update: NLRB Delays Implementation of Final Election Rule Changes to July 31, 2020

By Mark Theodore and Joshua Fox on Posted in COVID-19, NLRA, NLRB
As we reported here, on April 1, 2020, the NLRB published its final rule making three amendments to its rules and regulations governing union elections (relating to the Board’s blocking charge policy; timing and notice requirements attendant to voluntary recognition; and 9(a) recognition in the construction industry).  The rule was expected to be effective as … Continue Reading

NLRB: Employee’s Profanity and Threatening Comments Insufficient to Forfeit Protections of the Act

By Mark Theodore and Scott Tan on Posted in NLRA, NLRB
In the past, we frequently have discussed protected activity and how an employee’s profane outburst or deliberate conduct may render otherwise protected activity, “unprotected.”  However, as this recently issued decision reinforces, the Board is usually quite tolerant of impulsive behavior and outbursts in response to legitimate grievances over the terms and conditions of employment. Plant … Continue Reading

BREAKING: NLRB Announces Representation Elections Will Resume April 6, 2020

By Mark Theodore and Scott Tan on Posted in NLRA, NLRB, Representation Elections
On March 19, 2020, the NLRB announced that it was suspending all representation elections through April 3, 2020.  The Board stated that the suspension was necessary to ensure the safety of its own employees, as well as those members of the public involved in the elections. Today, the Board announced that it will not extend … Continue Reading

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 Decides to Assert Jurisdiction Over Charter Schools On A Case By Case Basis

By Mark Theodore, Joshua Fox and Samantha Shear on Posted in NLRA, NLRB
The NLRB continues to operate during the novel coronavirus crisis. Regional offices are largely working remotely as is the rest of the country.  The Board itself continues to issue decisions, albeit at a slower pace than usual.  On February 4, 2019, the NLRB invited interested parties to file briefs addressing whether the agency should decline … Continue Reading

NLRB Suspends Representation Elections through April 3, 2020 due to COVID-19 Pandemic

By Michael Lebowich and Joshua Fox on Posted in Coronavirus, NLRA, NLRB, Representation Elections
The NLRB announced today in a press release that “[d]ue to the extraordinary circumstances related to the COVID-19 pandemic,” all representation elections, including mail ballot elections, will be suspended for the next two weeks, through and including April 3, 2020.  This means that any representation elections previously scheduled from now through April 3, 2020 will … Continue Reading

Employer’s Poll of Workforce Not Unlawful Mass Interrogation, NLRB Rules

By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1)
When it comes to an unfair practice allegation asserting an employer’s statement is unlawful, words matter.  And, so does context.  Under NLRB case law, the actual employer statements are evaluated as well as the overall context the words were uttered to determine whether there exists coercion.  Recently, the NLRB addressed an unusual case where an … Continue Reading

NLRB Issues its Final Rule for its New Joint Employer Standard

By Steven Porzio and Jacob L. Hirsch on Posted in Joint Employer, NLRB
This morning the National Labor Relations Board (the “Board”) unveiled the final rule setting forth the new legal test it will apply in analyzing whether affiliated businesses are “joint employers”. The final rule, which will be effective on April 27, 2020, can be found here. Background On September 13, 2018 the Board published its proposed … Continue Reading

Applying the Boeing Standard, NLRB Upholds Employer’s Policies Restricting Cell Phone Use, Non-Work Email Use and Disclosure of Confidential Information

By Mark Theodore, Joshua Fox and Rachel Therese Gulotta on Posted in Confidentiality, Handbook, NLRA, NLRB, Section 7
Applying the facially neutral work rule test laid out in Boeing (see here), the Board recently reversed an Administrative Law Judge decision, concluding that the employer maintained lawful workplace rules restricting employee use of (i) cell phones in commercial vehicles, (ii) the company email server for purposes not related to work, and (iii) the disclosure … Continue Reading

NLRB Sues Oregon Seeking To Invalidate State Law Prohibiting “Captive Audience” Meetings

By Mark Theodore, Joshua Fox and Jordan Simon on Posted in NLRA, NLRB, NLRB Election Rules, Preemption
On February 7, 2020 the National Labor Relations Board (“NLRB”) sued the State of Oregon in federal court seeking a declaratory judgement to invalidate a state statute that protects employees who refuse to attend lawful compulsory meetings held by employers during organizing campaigns from adverse employment action.  These meetings, pejoratively referred to as “captive audience” … Continue Reading

NLRB Upholds Employer’s Bargaining And Demotions Post-Impasse As Lawful

By Mark Theodore and Rachel Therese Gulotta on Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(5)
In its January 31, 2020 decision in Phillips 66, 369 NLRB No. 13 (January 31, 2020) the Board reversed a number of findings of unfair labor practices found by an Administrative Law Judge related to the employer’s conduct during organizing and subsequent bargaining. Background In November 2011, the union filed a petition to represent the … Continue Reading

Congress Passes Labor-Friendly “PRO Act”

By Mark Theodore, Joshua Fox and Jordan Simon on Posted in NLRA, NLRB, Protected activity, Section 7
On Thursday, February 6, 2020 the U.S. House of Representatives passed the Protecting the Right to Organize Act, also known as the “PRO Act”.  The legislation (which can be viewed here), passed mostly along party lines, would provide sweeping changes to the NLRA that would enhance greatly the ability of unions to organize employees and … Continue Reading

D.C. Circuit Vacates NLRB Decision, Reinforcing Board’s Limited Jurisdiction over Religious Schools

By Mark Theodore and Joshua Fox on Posted in Collective Bargaining, NLRA, NLRB, Section 8(a)(5)
Similar to other disagreements between the NLRB and D.C. Circuit (see here for a recent example ), a tension developed during the last several years regarding the appropriate standard to determine whether teachers at religious schools are covered by the NLRA and within the Board’s jurisdiction, or whether the Religion Clauses of the First Amendment … Continue Reading

Union’s Failure to Provide Factual Reasons as to Why It Needed Certain Information Privileged Employer to Deny Request, NLRB Rules

By Mark Theodore and Scott Tan on Posted in NLRA, NLRB, Section 8(a)(5)
In prior posts, we’ve discussed how information requests in the context of labor relations can be deceptively complex to comply with for employers.  We’ve seen how an employer’s assertion of confidentiality, standing alone, is not enough to justify denying a request.  Sometimes, albeit rarely, the NLRB has determined the subject of some requested information is … Continue Reading

NLRB: Outsized Payment to Union Supporter to Waive Reinstatement in Board Settlement Not Unlawful Bribe

By Mark Theodore, Joshua Fox and Scott Tan on Posted in NLRA, NLRB, Section 8(a)(3)
Shamrock Foods Company, 369 N.L.R.B. No. 5 (January 7, 2020) is the latest in the National Labor Relations Board’s series of employer-friendly decisions.  In Shamrock Foods, the Board held that an employer did not violate Sections 8(a)(3) and (1) of the National Labor Relations Act by offering and entering into a settlement agreement with an … 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

Buttoning Up Rules on Union Insignia – Board Makes It Easier for Employers to Restrict Size and Scope of Union Buttons For Those With Customer Contact Work

By Michael Lebowich, Joshua Fox and Abigail Rosenblum on Posted in Buttons, NLRA, NLRB, Section 7, Section 8(a)(1)
The Board continues churning out precedent-setting decisions as year-end approaches.  Two days before the Christmas holiday, in Wal-Mart Stores, Inc., 368 NLRB No. 146 (Dec. 16, 2019), the NLRB applied its new view on handbook rules—the Boeing test—to Wal-Mart’s policy that employees can only wear “small, non-distracting” union insignia in the workplace, holding that the … Continue Reading

Busy Board Returns to Rule Permitting Workplace Confidentiality Restrictions during an Employer’s Investigation

By Mark Theodore, Joshua Fox and Dominique Kilmartin on Posted in Confidentiality, Employer policies, Investigations, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Witness statements, Workplace Investigations
As anticipated, in one of the last decisions before the end of Member McFerran’s term, the NLRB issued another important opinion.  Reverting back to precedent that preceded a 2015 decision, the Board, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), held that an employer’s confidentiality restrictions for information relating to … Continue Reading

NLRB Restores 50+ Year-Old Precedent: Employers (Once Again) May Unilaterally Stop Deducting Union Dues Upon Contract Expiration

By Mark Theodore, Joshua Fox and Jacob P. Tucker on Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(3)
Mid-December is always a time where one can expect significant decisions to issue from the NLRB.  In recent years, we saw the Board, among other decisions, abandon the much criticized “micro unit” standard and the equally criticized handbook violation standard. December is also one of the main times of year that a Board Member’s term … Continue Reading

No, Unions Do Not Have A Free Speech Right To Engage In Unlawful Secondary Boycott Activity, Federal Appeals Court Rules

By Mark Theodore, Joshua Fox and Annabel Pollioni on Posted in NLRA, NLRB, Secondary boycott, Section 8(b)(4)(i)(B)
On October 28, 2019, the Ninth Circuit, following in the footsteps of the D.C. Circuit and the Second Circuit, affirmed an order entered by the NLRB confirming that prohibitions on secondary boycotts under Section 8(b)(4)(i)(B) of the NLRA do not violate the First Amendment of the United States Constitution. Nat’l Labor Relations Bd. v. Int’l … Continue Reading

Moment of Clarity? NLRB Upholds Info-Sharing and Media Contact Rules, Clarifies Boeing Standard Applicable to Employer Handbook Policies

By Mark Theodore, Joshua Fox and Austin McLeod on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(3)
The NLRB continues to issue decisions on a variety of interesting issues.  On October 10, the Board held, in LA Specialty Produce Co., 368 NLRB No. 93 (Oct. 10, 2019), that an employer’s strong confidentiality protections and limited media availability rules were lawful, and in so doing, clarified the analysis under the newly-issued Boeing standard, … Continue Reading
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