Category Archives: National Labor Relations Act

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An Employer’s Bargaining Table Complaints as to Poor Business Conditions Is Not a Claim of Poverty Entitling a Union to Business Sensitive Information

While bargaining, unions often demand that employers produce information relevant to the bargaining process so that the union may fulfill its duties as bargaining representative. Under the law and absent some compelling reason for not doing so, NLRA Section 8(a)(5) compels employers to produce such relevant bargaining information. This informational duty is particularly unctuous for … Continue Reading

More Good News From The Board: NLRB Scraps The Clear And Unmistakable Waiver Standard For The Contract Coverage Test When Deciding Unilateral Change Cases

A flurry of critical cases have issued out of the NLRB over the past two weeks. The latest is the Board’s decision in MV Transportation, 368 NLRB No. 66 (2019), and the Board’s decision provides critical cover to employers seeking to make changes to working conditions without first bargaining with an incumbent union. By way … Continue Reading

Employers May Not Have To Retain Racists, Sexists And Belligerently Disobedient Employees After All-The NLRB Appears Ready To Rethink Its Positions On Controversial Discipline-Related Doctrines

It is lawful to discipline and even discharge an employee for making inappropriate or offensive remarks in the workplace. Indeed, current anti-harassment and anti-bullying laws may require an employer to take adverse action against a worker for their use of such “bad” language. However, when those remarks are made while an employee is engaged in … Continue Reading

The NLRB Nixes Union Gerrymandering And Establishes A Three Step Test For Voting Unit Determinations

In the organizing context, the scope of a potential bargaining unit is everything-it determines which employees’ votes will count towards establishing a union’s putative majority in a secret ballot election, and determines the unit within which bargaining must take place if a union prevails in that election. Unsurprisingly, then, unit scope is one of the … Continue Reading

The NLRB Rules That Employers May Bar Union Representatives From Their Property Even Though They Have Allowed Other Third Parties To Engage In Civic, Charitable Or Commercial Solicitations There

Setting clear and reasonable standards for taking access to an employer’s private property is high on the National Labor Relations Board’s agenda. Not only is the Board talking about issuing formal rules in this area, but the Agency is cranking out new access decisions left and right, the most recent being its recent decision in … Continue Reading

An Employer’s Erroneous Announcement To Employees Declaring Them Independent Contractors Does Not, Standing Alone, Violate The NLRA

Does an employer who genuinely believes that its workers are independent contractors and tells them that they are contractors and not employees, only to later find out that it was wrong, violate Section 8(a)(1) of the National Labor Relations Act (NLRA or Act)? Unions and workers’ advocates argue that such erroneous classifications/announcements should be illegal … Continue Reading

The NLRB Holds That Employers May Implement Class Waivers in Response to Class Claims and Discipline Employees Who Refuse to Sign Them

Employers wishing to implement class action waivers in response to class claims and discipline employees who refuse to sign them just got some very good news from the National Labor Relations Board (NLRB or Board) in Cordua Restaurants, Inc., 368 NLRB No. 43. By way of background, in Epic Systems Corp v. Lewis, 138 S. … Continue Reading

Breaking with Tradition, The Current NLRB is on a Rulemaking Tear: Election Procedures, Recognition Bar, and 9(a) Collective Bargaining Relationships

In its 84-year history, the National Labor Relations Board (NLRB, Board or Agency) has promulgated a very small number of rules pursuant to the Administrative Procedures Act, relying, instead, on individualized adjudications to establish the Board’s legislative policies. However, breaking with that long tradition, the current Board now appears to be on the verge of … Continue Reading

The NLRB Confirms that Intermittent Strikes in Furtherance of the Same Goal are Unprotected

The National Labor Relations Act’s (NLRA or Act) Section 7 grants to all employees — regardless of whether they are unionized or not — the right to engage in protected concerted activity (PCA).  Accordingly, an employer may not punish or take any adverse action against a worker because they engage in PCA. Such adverse action … Continue Reading

The NLRB Just Made It A Little Easier For Employees To Get Rid Of Their Union

Unionized workers wishing to rid themselves of continued union representation (and their employers) just got some very good news from the National Labor Relations Board (NLRB or Board) with the issuance of Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019).  The issue addressed there was how the NLRB will determine the wishes of … Continue Reading

Which Are They? Independent Contractors Or Employees? Navigating The Conflicts Between State And Federal Law

UberX and UberBLACK Drivers Are Not Employees for Purposes of the NLRA According to the NLRB General Counsel’s Division of Advice (GC), Uber’s UberX and UberBLACK drivers are independent contractors exempt from the rights and protections of the National Labor Relations Act (NLRA), including the right to form and join unions.  Advice Memo, dated April … Continue Reading

NLRB Limits Duty to Bargain Over Disciplinary Actions

A unionized employer must bargain with its employees’ union before making any unilateral changes in employees’ wages, hours, working conditions or other terms and conditions of employment.  Such changes are commonly referred to as mandatory bargaining subjects.  In Alan Ritchey, 359 NLRB 396 (2012) and later in Total Security Management, 364 NLRB No. 106 (2016), … Continue Reading

NLRB Limits Union Access Rights to “Public Spaces” of Employers

On June 14, 2019, the National Labor Relations Board (NLRB or Board) issued an important decision clarifying whether and when an employer may lawfully exclude union organizers from its privately owned public spaces. Under then extant Board caselaw, where an employer had invited the public to enter or use space on its private property, the employer … Continue Reading

It’s OK to Be Different- NLRB Rules That Union Represented Employees Are Not Entitled to Midterm Bargaining Over Same Paid Holiday Granted to Non-Represented Employees

Does an employer automatically engage in unlawful discrimination when it grants an improved benefit to its non-union employees but withholds the improvement from its union employees who are covered by a collective bargaining agreement? In a recent decision, Merck, Sharp & Dohme Corp, 367 NLRB No. 122, issued on May 7, 2019, the National Labor … Continue Reading

“Financial Core” – A Dissident Writer’s Recourse

Amid the confusion and tensions of the WGA-ATA dispute over packaging fees and agency ties to affiliated production entities, more than 7,000 termination letters have been sent out to non-franchised agents who once represented WGA members.[1] The mass firing was “mandatory rather than optional”[2] and 92% of writers who voted in favor of the Code … Continue Reading

No Evidence? No Problem! National Labor Relations Board’s General Counsel Memorandum Eases Burden On Beck Objectors Following Board’s Decision in Kent Hospital

On April 29, 2019, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”) issued Memorandum GC 19-06, which provides guidance to the Board’s regional offices on how to handle cases involving Beck objectors and how to allocate secondary expenses related to union lobbying activity after the Board’s March 1, 2019 decision in … Continue Reading

The NLRB Continues To Chip Away At Individual Protected Concerted Activity

An employee’s right to engage in concerted activities for the purpose of mutual aid and protection is basic to the National Labor Relations Act’s (NLRA) Section 7. Although these concepts, “concertedness” and “mutual aid or protection”, sound similar and are often closely related, they are distinct statutory requirements, each calling for two different inquiries and … Continue Reading

It’s Perfectly Clear Once Again— NLRB Limits “Perfectly Clear” Successor Exception

The circumstances under which an asset buyer has a duty to bargain with an incumbent union may be changing. In NLRB v. Burns Security Services, Inc., 406 U.S. 272 (1972), the Supreme Court held that an employer who purchases the assets of a unionized business (and who may ultimately qualify as a successor employer with … Continue Reading

Deputy Lawyer; WGA Tries Preemption Route in ATA Dispute

The ongoing dispute between the Writers’ Guild of America (“WGA”) and the Association of Talent Agencies (“ATA”) took a new turn recently when the WGA announced that it would use the authority granted to it under the National Labor Relations Act (“NLRA”) to “preempt” California state law and effectively “deputize” attorneys and managers to perform … Continue Reading

I’m Not Paying for That! National Labor Relations Board Increases Rights of Beck Objectors and Further Limits the Activities Unions Can Fund Through Dues Collections

On March 1, 2019, the National Labor Relations Board (“Board”), in a 3-1 decision, ruled that Beck objectors cannot be required to financially support the lobbying efforts of unions because lobbying costs are not chargeable as incurred during a union’s performance of statutory duties as the objectors’ exclusive bargaining agent. United Nurses & Allied Professionals … Continue Reading

National Labor Relations Board Issues Decision Overruling Obama-Era Independent Contractor Test: What This Means For (Putative) Employers

In a business-friendly decision issued on January 25, 2019, the National Labor Relations Board (“NLRB” or “Board”) revised its test for determining whether putative independent contractors are exempt from coverage under the National Labor Relations Act (“NLRA”). See SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019) (“SuperShuttle”). The Board’s SuperShuttle decision affirmed a 2010 Acting … Continue Reading

NLRB Issues Important Decision Regarding What Constitutes “Protected Concerted Activity” in Union and Union-Free Environments Under Federal Labor Law

In yet another case that impacts both union and non-union employers, the Republican-majority National Labor Relations Board (Board) overruled Obama-era precedent and substantially narrowed what is considered “protected concerted activities” by workers under the National Labor Relations Act (NLRA) in Alstate Maintenance, 367 NLRB No. 68 (January 11, 2019).  In doing so, the Board expressly … Continue Reading

NLRB Issues Proposed Rulemaking on the Joint Employer Standard

The National Labor Relations Board has made good on its recent promise to move forward with rulemaking to re-establish the decades-old joint employer standard in place prior to the Board’s 2015 decision in Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) (Browning-Ferris or BFI), petition for review docketed … Continue Reading

National Labor Relations Board Signals That It May Leave Purple Communications Black and Blue

On August 1, 2018, the National Labor Relations Board (“Board”) issued a Notice and Invitation to File Briefs, inviting the public to file briefs on whether the Board should overrule its 2014 decision in Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board held, absent special circumstances, employees who have been given access … Continue Reading
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