Labor Relations Update

Tag Archives: Section 8(a)(1)

The Devil Is In the Details: New Board Members Likely To Change Law In Nuanced Ways

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

NLRB Ditches Effort To Expand Weingarten Rights to Non-Union Workplaces

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

NLRB’s Attempt To Incrementally Expand Weingarten Rights Rebuffed By Federal Appeals Court

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

Divided NLRB Rules Employer Policy Protecting Customer Information Is Lawful

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

NLRB’s Acted More Like “Advocate Than Adjudicator” In Issuing Decision, DC Court of Appeals Concludes

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

Two Employees, Social Media, An Unlawful Policy. . .What Could Possibly Go Wrong?

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

Employer’s Asking Employee “How Things Are Going?,” Prelude to Unlawful Solicitation of Grievances, Board Majority Rules

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

Attack Falsely Alleging Sandwich Maker Engaged In Unhealthy Practices Not Protected Activity Concludes Appeals Court, Overruling NLRB

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

Circuit Court Rejects Attack On NLRB’s New Witness Rule

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

NLRB Settlements Can Be Tricky, Especially If You Don’t Inform The Agency

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

HR Generalist’s Threat To Bring In Union Not Protected, NLRB Rules

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

Union Adherent’s Antics Not Protected By Act, NLRB Rules

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

NLRB GC’s Attempt At Summary Judgment In Handbook Case Rejected By NLRB Majority

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

Employer’s Interview Of Employees During Defense Of Unfair Labor Practice Violates Act, NLRB Rules

We already know that when it comes to the NLRB there already are several actions an employer can take that violate the NLRA, even though such actions would be perfectly acceptable under any other employment law.  And sometimes the actions are deemed unlawful even when they are not directly related to the NLRA.  Thus, we’ve … Continue Reading

Split D.C. Circuit Panel Upholds NLRB: DirecTV Violated NLRA By Terminating Technicians For Statements Made During A News Interview

In a 2-1 ruling in DirecTV Inc. v. National Labor Relations Board, the U.S. Court of Appeals for the D.C. Circuit affirmed the NLRB’s ruling that DirecTV must reinstate technicians who were terminated for complaining about a company pay policy during a television interview, finding that the employees’ conduct constituted protected, concerted activity and was … Continue Reading

Non-Compete Agreement A Mandatory Subject of Bargaining, NLRB Rules

The first day of employment is often chaotic.  New employees must learn their way around the jobsite, meet (and remember the names of) many new people and otherwise familiarize themselves with working at a new job.  Oh, and there’s the paperwork.  Seemingly endless mounds of paperwork.  New employees are asked to sign a multitude of documents … Continue Reading

Recent NLRB Decision A Reminder That NLRA Can Protect Actions Of A Single Employee

So far, it has been a long quiet Summer with little NLRB activity, – with the exception of the recent ruling that temporary agency employees can be part of a bargaining unit with the principal employer’s employees, of course.  More change may be coming, though.  The end of the NLRB’s fiscal year is September 30 and … Continue Reading

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

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

NLRB Refuses to Approve Withdrawal of Charges Despite Settlement of Class Action Case

We know that, among many other common employer policies, the NLRB considers many mandatory arbitration agreements to be unlawful, particularly where they prohibit class or collective actions.  See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014).  Unlike a more run of the mill handbook violation where the government seeks removal or modification of the policy, an … Continue Reading

Union Represented Employee Not Entitled To Co-Worker Witness During Investigatory Interview, NLRB Rules

The last few months at the NLRB have been relatively quiet, save of course for the ambush election rules which went into effect on April 15; the true impact of these rules has yet to be revealed.  Many of the recent Board cases involve correcting decisions that were  invalidated by the Supreme Court in its Noel Canning recess appointment decision. … Continue Reading

Search Of Company Vehicle Not Employee Interview Triggering Weingarten Rights, NLRB Division of Advice

The scope of a union-represented employee’s right to have a union representative present during an investigatory interview is one of the more interesting areas of labor law.  Even though most people who practice labor relations know the basics of the so-called Weingarten rights, the same types of questions continue to arise because there are an … Continue Reading

NLRB: Employer Responsible For Backpay Of Union Representative Allegedly Injured During Workplace Assault

The NLRB has ruled that an employer is liable to lost wages for a union representative who allegedly suffered injuries after being pushed down a flight of stairs at a work site.  The case is Norquay Construction, Inc., 359 NLRB No. 93 (April 16, 2013).  The facts involved a construction project.  The general contractor was non-union but … Continue Reading

NLRB Pulls Back A Little More On Policy Frenzy, Finds Code Of Conduct Does Not Violate The Act

As we have seen repeatedly in the last year, the NLRB has taken it upon itself to police employer policies often finding a phrase or two to be a violation of the Act.  In recent months we have seen the NLRB seemingly pullback on this trend, taking a much closer look at the context of … Continue Reading
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