Category Archives: National Labor Relations Board

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GC Finds Merit in COVID-19 Related ULP Cases in GC Memo 20-14

On September 18, the Board’s GC issued GC Memo 20-14, entitled Summaries of Advice Merit Determinations Related to Coronavirus Disease 2019 Issues for the purpose of giving the public a better understanding of the GC’s approach to COVID-19 related issues.  What emerges is a clear message—while the pandemic can impact certain obligations under the National … Continue Reading

Neutrality and Labor Peace Agreements – When Its Unlawful for an Employer to Be “Too Neutral” as to Union Organizing Under the NLRA

Unions have long sought to avoid the NLRB’s election process, relying instead upon so-called “neutrality” agreements to obtain initial recognition by employers and legally enforceable rights to represent and bargain on behalf of previously unrepresented employees.  Although truly neutral pre-recognition “neutrality agreements,” i.e. those calling for an employer to be neutral on the subject of … Continue Reading

The Board Weighs In on the COVID Mail Ballot Controversy

Did an NLRB’s Regional Director abuse her discretion when she directed a mail ballot election instead of an in-person (manual) ballot election during the COVID-19 pandemic?  Though not getting the attention it deserves, this is an extremely important issue going to the very integrity of the Board’s representation process.  Manual balloting has long been the … Continue Reading

NLRB Releases More Employer-Friendly COVID Advice

The National Labor Relations Board’s (“NLRB” or Board”) Division of Advice[1] recently released five memos dealing with issues related to the COVID-19 pandemic—concluding in all five that dismissal of the pending unfair labor practice charge (“ULP” or “charge”) against the employer was warranted.  These advice memos come on the heels of a series of advice … Continue Reading

Sticks and Stones…The NLRB Rethinks Its Position on Abusive Workplace Speech by Employees While They Are Engaged in Protected Concerted and Union Activities

On Tuesday, the National Labor Relations Board (NLRB or Board) issued its much-awaited decision in General Motors, LLC (GM), 369 NLRB No. 127 (2020), in which it held that abusive or inappropriate workplace speech by employees engaged in protected concerted or union activity (PCA) is not protected under the National Labor Relations Act (NLRA or … Continue Reading

NLRA “Advice” All Employers Should Consider in a COVID World

Most employers wrestling with COVID-19 related employment law issues aren’t paying much attention to the labor law issues arising out of the pandemic.  Indeed, because most U.S. employers are non-union, many operate under the mistaken belief that they fall outside the reach of the National Labor Relations Act (Act or NLRA) and don’t have to … Continue Reading

AFL-CIO Sues the Board Over New Rules – AGAIN

Last August, we wrote about three important new rules that the National Labor Relations Board (Board or NLRB) was proposing to issue.  As proposed, the new rules reversed existing Board case handling practices and/or case law and essentially codified certain substantive changes in the Board’s law through the formal rulemaking process.  Because these changes were … Continue Reading

Will the NLRB GC’s “Suggested” Manual Election Protocols Matter?

On July 6, and after consulting with the Board’s Regional Directors (“RDs”) and other of the Agency’s internal stakeholders, the NLRB’s General Counsel (GC) issued Memorandum GC 20-10 offering suggested protocols for the RDs to follow as a way of returning to manual elections in light of the ongoing pandemic.  Before COVID-19, the overwhelming majority … Continue Reading

Board Invites Briefs and Signals a Possible Shift in Its Contract Bar Rules

On June 23, the National Labor Relations Board’s (Board or NLRB) issued a decision in Mountaire Farms, Inc., 5-RD-256888 in which the Board granted review of a Regional Director’s decision applying the Board’s contract bar doctrine, finding that the case presented substantial issues warranting the NLRB’s review and announcing its intention to establish a schedule … Continue Reading

Judge Jackson Explains the Basis for Her Invalidation of the Board’s Election Regulations

As we previously discussed earlier this month, District Court Judge Ketanji Brown Jackson issued an Order in American Federation of Labor and Congress of Industrial Organizations v. National Labor Relations Board, Civil Case No. 2020-0675, invalidating five of the National Labor Relations Board’s (NLRB or Board) soon-to-be implemented new elections rules (2019 rules).  Issued in … Continue Reading

The NLRB Rethinks Its Position on When It May Assert Jurisdiction Over Religious Schools in Labor Matters Involving Faculty Members

On June 10, the National Labor Relations Board (NLRB or Board) issued Bethany College, 369 NLRB No. 98, in which it held that it does not have jurisdiction over matters concerning teachers or faculty at bona fide religious educational institutions.  Bona fide religious educational institutions are those who (1) hold themselves out to students, faculty … Continue Reading

The NLRB Reacts to Court’s Eleventh-Hour Partial Injunction of the Agency’s New Election Rules

Last December, we addressed the National Labor Relations Board’s (NLRB or Board) new rules applicable to all NLRB-conducted elections.  As then reported, these new rules partially reversed election rules implemented in 2014 and were designed to address many of the concerns raised by the Board’s 2014 rules changes.  Specifically, the Trump Board has repeatedly expressed … Continue Reading

Why, How and When Katz May “Trump” an Expired CBA When It Comes to Making Unilateral Changes — The Relationship Between MV Transportation and Raytheon Network

From time to time, employers trigger labor disputes when they make unilateral changes in working conditions.  Unions objecting to such changes often complain to the NLRB, claiming a change to be mandatory bargaining subjects and that the employer’s change without prior bargaining violates the NLRA’s Sections 8(a)(5) and (d).… Continue Reading

Keep a Lid on It – The Trump NLRB Reaffirms Employer Ability to Enforce Investigative Confidentiality Rules

In Apogee Retail, 368 NLRB No. 144 (2019), the NLRB overruled the Obama Board’s decision in Banner Estrella Medical Center, 362 NLRB 1108 (2015) and held that investigative confidentiality rules that by their terms apply only to investigation participants and last only for the duration of an investigation are categorically lawful because the justifications for … Continue Reading

Labor Issues Concerning COVID-19 and Government “Stay at Home” Orders

The National Labor Relations Act (“NLRA”) is a federal law that applies to nearly all employers in the United States.  In the wake of COVID-19, there are numerous issues implicating the NLRA, including but not limited to employees engaging in protected concerted activities including work stoppages, the potential duty to bargain with unions concerning COVID-19 … Continue Reading

The Trump NLRB Finally Issues Its Much Awaited “Joint Employer” Rule

Today, the National Labor Relations Board (NLRB or Board) followed through on its earlier promise and issued its Joint Employer Final Rule, officially reversing the Board’s 2015 Browning-Ferris Industries (BFI) decision[1] and conclusively establishing the legal ground rules under which otherwise separate business entities may be legally joined and determined to be joint employers for … Continue Reading

Expect More Pro-Business Rulings From NLRB This Year

This article originally appeared on Law360 on January 27, 2020. The current National Labor Relations Board was extremely kind to employers during 2019, issuing a multitude of precedent-setting decisions and new rules that reversed many of the excesses of the Obama board and returned the National Labor Relations Act to its more neutral legislative intent. … Continue Reading

NLRB Reinstates Broad Deferral of Discrimination Cases to Arbitration, Overruling the Obama Board’s 2014 Decision in Babcock & Wilcox

The Trump National Labor Relations Board (Board or NLRB) gifted employers a significant win on the eve of the Christmas holiday with its December 23 decision in United Parcel Service, Inc., 369 NLRB No. 1 (UPS), which announced a return to the decades-old standard for deferring to arbitral decisions in unfair labor practice cases alleging … Continue Reading

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
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