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James Hays is a partner in the firm's New York office and a leader of the Traditional Labor Law Team.

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 slated to be the subject of formal rulemaking, once enacted, they could neither be ignored by the Board nor reversed or modified in future Board case decisions.  Rather, in order to change or reverse them, the Agency would be required to go through the formal procedures of the Administrative Procedures Act (APA).  Having now passed through the APA’s public notice and comment process, these new rules are now final and scheduled to take effect on July 31.
Continue Reading AFL-CIO Sues the Board Over New Rules – AGAIN

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 of National Labor Relations Board-conducted representation elections were done manually.  Board agents typically came to an employer’s place of business, set up a voting booth and employees were allowed to vote en masse on whether or not they wished to be represented by a union by manually marking a paper ballot.  Elections were run in this manner because the workplace was where almost all of the employees were physically present and maximum employee participation in the election process could be assured.  In addition to providing a level election playing field favoring neither management nor labor, and minimizing the Board’s physical oversight of the voting process, manual voting guarantees that elections can be held under laboratory conditions by greatly minimizing the risks of inappropriate conduct that could adversely affect the outcome of an election.
Continue Reading Will the NLRB GC’s “Suggested” Manual Election Protocols Matter?

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 for the filing of briefs on review and inviting amicus briefs.  On July 7, the Board acted on that intention and issued a Notice and Invitation To File Briefs in the case (Notice).
Continue Reading Board Invites Briefs and Signals a Possible Shift in Its Contract Bar Rules

On July 8, 2020, the Supreme Court gave religious employers wide leeway to hire and fire employees whose duties include religious instruction without having to worry about employment discrimination suits. In a 7-to-2 decision, the Supreme Court ruled in Our Lady of Guadalupe School v. Morrissey-Berru that the “ministerial exception” – a legal doctrine that shields religious employers from anti-discrimination lawsuits – foreclosed the adjudication of two discrimination lawsuits brought by Catholic school teachers.
Continue Reading U.S. Supreme Court Backs Broad Interpretation of the “Ministerial Exception,” Shielding Religious Employers From Employment Discrimination Claims

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 haste on May 30 to head off the Board’s May 31 implementation of the new rules, Judge Jackson’s Order offered little explanation for her decision except to say that she found each of the challenged new election procedure rules unlawful and set them aside because they were “not procedural rules” exempted from the Administrative Procedure Act’s (APA) notice-and-comment rulemaking requirements.
Continue Reading Judge Jackson Explains the Basis for Her Invalidation of the Board’s Election Regulations

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 and the community as providing a religious educational environment; (2) are nonprofit organizations; and (3) are affiliated with, or owned, operated or controlled by a recognized religious organization or with an entity, membership of which is determined, at least in part, with reference to religion.  In Bethany College, the Board also overruled its decision in Pacific Lutheran University, 361 NLRB 1404 (2014), where the Board had concluded it could assert jurisdiction over a religious school and its teachers if the teachers were not held out as performing a specific role in creating or maintaining the school’s religious educational environment.  In overruling Pacific Lutheran on constitutional grounds, the Bethany College Board found that its Pacific Lutheran decision could not be squared with the First Amendment and Supreme Court precedent.
Continue Reading The NLRB Rethinks Its Position on When It May Assert Jurisdiction Over Religious Schools in Labor Matters Involving Faculty Members

At the beginning of this year, New Jersey Governor Phil Murphy signed a package of legislation aimed at protecting the rights of workers who have been misclassified as independent contractors.  One of these new laws, Assembly Bill 5843, requires employers to post notices regarding employee misclassification.  The New Jersey Department of Labor and Workforce Development has now published the required posting in two different sizes (11 x 17 and 8.5 x 11).
Continue Reading New Jersey Department of Labor Releases Posters for Employers to Utilize to Satisfy Employee Misclassification Posting Requirements

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 concern that the timeframe prior to a pre-election hearing was too truncated to allow the parties to adequately prepare for hearing and meet their many regulatory obligations.  Originally scheduled to take effect April 16, 2020, implementation was later postponed and rescheduled to take effect on May 31.
Continue Reading The NLRB Reacts to Court’s Eleventh-Hour Partial Injunction of the Agency’s New Election Rules

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 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

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 such rules are self evident and predictably outweigh the comparatively slight potential for such rules to interfere with the exercise of Section 7 rights.  In this day and age of workplace harassment claims and internal investigations, Apogee was welcome news for employers because it ended the legal requirement that an employer prove that it had a particularized, legitimate and substantial business justification for compulsory confidentiality and because that said justification outweighed employee Section 7 rights in order for such prohibitions to be adjudged lawful.
Continue Reading Keep a Lid on It – The Trump NLRB Reaffirms Employer Ability to Enforce Investigative Confidentiality Rules