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Keahn Morris is a partner in the Labor and Employment Practice Group in the firm's San Francisco office.

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.

The board’s current composition will change this coming August when member Marvin Kaplan’s term expires. But with the Republicans in control of both the White House and the Senate, at least, through the end of the year, 2020 is shaping up to be another year of decisions and rules that give employers further hope that additional business-friendly decisions are on the way.

These anticipated cases and rule changes include but certainly are not limited to the following.
Continue Reading Expect More Pro-Business Rulings From NLRB This Year

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 discharge or discipline in violation of Section 8(a)(1) and (3) of the National Labor Relations Act (NLRA or Act). The Board continues to reshape the Act with new decisions that reverse precedents and undo legal restrictions placed on employers during the Obama administration, and its decision in UPS is just the latest in a string of employer-friendly decisions issued this month alone, including Caesars Entertainment, 368 NLRB No. 143 (December 17, 2019)(overruling Purple Communications and freeing up employers to ban employees from using Company-owned computers during their non-work time to engage in protected concerted or union activities); Apogee Retail, LLC, 368 NLRB No. 144 (December 17, 2019)(overruling Banner Health, allowing employers to require employees to keep workplace investigations confidential and banning them from discussing them with other employees); and Valley Hospital Medical Center, 368 NLRB No. 139 (December 16, 2019)(holding that an employer is free to unilaterally cease union dues checkoff after a CBA expires). Our recent blog article addressing these critical decisions can be found here.
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 (NLRB) continues to reshape the National Labor Relations Act (NLRA or Act) with new decisions that reverse precedents and undo legal restrictions placed on employers during the Obama administration. Over the past week alone and coming on the heels of the current Board’s issuance of new more employer friendly election regulations, the Board issued three important cases that warrant management’s attention. What follows is a brief summary of these new cases and an explanation of how they are likely to effect the workplace.
Continue Reading Employers May Now Forbid Employees Using Co. Email for Protected Concerted Activities, Forbid Employees from Discussing On-Going Workplace Investigations, and Cease Checking Off Union Dues

On the eve of the holidays, the National Labor Relations Board (NLRB) delivered an early Christmas present to employers with its issuance of new regulations governing the NLRB election process.  While not scraping the Obama Board’s controversial 2014 election regulations wholesale, the current Board’s new rules moderate the election processing time frames considerably, allow employers to raise issues of supervisory status before an election is held and give employers a greater opportunity to campaign amongst employee voters in an effort to maintain their union free status.  These procedural changes which will become effective in early April 2020 are welcome news for they go a long way towards re-leveling the playing field for employers when they litigate election issues and conduct election campaigns.
Continue Reading Christmas Comes Early for Employers at the NLRB — New Election Procedures That Give Employers a Greater Opportunity to Mount Legal Challenges to Election Petitions and to Effectively Campaign Against Unionization

On October 12, 2019, Governor Newsom signed Assembly Bill 1291 (“AB 1291”) into law, which requires companies to sign a so-called “labor peace” agreement with a union or risk losing their cannabis license; thereby, strengthening already union-friendly statewide cannabis law. AB 1291 was supported and endorsed by various unions, including the United Food and Commercial Workers Western States Council, a 170,000-member branch representing thousands of cannabis workers. This bill, as well as other California statutes and local laws, signals a growing insistence by state and local regulators that employers doing business in California accept pro-union requirements. However, many of these new pro-union laws, including AB 1291, may be unconstitutional.
Continue Reading AB 1291 Forces California Cannabis Companies To Sign “Labor Peace Agreements” With Unions, But Statute May be Unconstitutional

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 employers who have fallen on hard economic times for where an employer claims a financial inability to meet a union’s economic demands, it may be required to open its books to the union and to produce otherwise off-limits business sensitive information so that the union may assess the employer’s plea of poverty. See, e.g., NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Nielsen Lithographing Co., 305 NLRB 697 (1992). For a whole host of real world business reasons, employers finding themselves in such difficult circumstances are resistant to the public airing of such sensitive information.
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

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 of background, the NLRA requires employers and unions to bargain in good faith with respect to wages, hours and working conditions (mandatory bargaining subjects). The end product of that bargaining process is the parties’ collective bargaining agreement (CBA), which serves as the physical embodiment of the parties’ bargained-for deal and contains the language on which the parties have agreed. It is that language that determines each parties’ rights, duties and obligations under the CBA and, now, under the Act. While it is well established that an employer does not violate the Act if the collective-bargaining agreement does, in fact, grant the employer the right to take certain actions unilaterally (i.e., without further bargaining with the union), unanticipated issues and controversies often arise over whether an employer’s conduct is permitted under the CBA or not. Indeed, despite the most careful drafting, there will be times when a CBA’s language, though perhaps arguably applicable to the given situation, will not be directly on point and/or require interpretation to determine the parties’ rights and obligations under the CBA. The question presented in MV Transportation concerns the standard the Board should apply to determine whether a collective-bargaining agreement grants the employer that right.
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

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 union or other protected concerted activity (PCA), then, depending upon the employee’s remarks and the context in which they are made, disciplining them for their use of inappropriate language may be an unfair labor practice. Atlantic Steel, 245 NLRB 814 (1979). For example, striking employees who, in addition to directing offensive statements at those who cross their picket line, also threaten them with physical harm or violence or assault them will lose the protection of the National Labor Relations Act (NLRA or the Act). On the other hand, those who merely verbally attack, trash talk or speak ill of line crossers, no matter how extreme or offensive their words are, generally remain statutorily protected. Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984). During its reign, the Obama National Labor Relations Board (NLRB) issued a number of decisions relying on Atlantic Steel to grant protection to represented employees who voiced extremely profane and racially-charged language in the workplace. See, e.g., Plaza Auto Center, Inc., 360 NLRB 972 (2014); Pier Sixty, LLC, 362 NLRB 505 (2015); and Cooper Tire & Rubber Co., 363 NLRB No. 194 (2016) to get a sense of the outrageous conduct the Board has recently found permissible under the Act.
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

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 most hotly contested issues in election cases.
Continue Reading The NLRB Nixes Union Gerrymandering And Establishes A Three Step Test For Voting Unit Determinations

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 Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64, dated September 6, 2019 (Kroger). The issue presented there was whether the National Labor Relations Act (NLRA or Act) requires an employer to grant nonemployee union representatives access to its premises to solicit the employer’s customers if it has also permitted other third parties to engage in civic, charitable or commercial solicitations there. The Board answered this question in the negative.
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