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On August 31, 2023, the National Labor Relations Board (“NLRB” or “Board”) adopted a broader test for what is considered “protected concerted activity” under the National Labor Relations Act (“NLRA” or the “Act”). Section 7 of the NLRA protects employees’ right to engage in concerted activities for the purpose of mutual aid or protection, otherwise known as “protected concerted activity” or “PCA.” Whether an employee’s conduct qualifies as “concerted” depends on whether their activity is linked to those of other employees. On the other hand, whether the employee’s activity is for “mutual aid or protection” focuses on whether the employee(s) involved are seeking to improve their conditions of employment. This standard applies to union and union-free settings. …

Continue Reading NLRB Expands Scope of What Is Considered Protected Concerted Activity in Workplaces

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 unionization and little more, are lawful, many such agreements go beyond mere neutrality and venture into actual employer support of organizing.  This may render such agreements unlawful under the National Labor Relations Act (NLRA or Act) because they interfere with employees’ rights under the Act.  Indeed, Section 8(a)(2) of the Act declares it impermissible for an employer to support a union’s organizing efforts.  Likewise, Section 8(b)(1)(A) of the Act makes it unlawful for a union to receive such support. …
Continue Reading Neutrality and Labor Peace Agreements – When Its Unlawful for an Employer to Be “Too Neutral” as to Union Organizing Under the NLRA

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

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

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 the purposes of the National Labor Relations Act (NLRA or Act).  Prospective only in effect, this new rule will be published in the Federal Register and go into effect on April 27, 2020.
Continue Reading The Trump NLRB Finally Issues Its Much Awaited “Joint Employer” Rule

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

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

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), the Obama NLRB held that the discretionary discharge or suspension of a union employee was a mandatory bargaining subject — even when that discipline was carried out pursuant to an established company employment practice or policy.  Therefore, according to these two controversial Obama Board decisions and absent a collective bargaining agreement provision covering the discipline or some other overriding extenuating circumstance, an employer breached its duty to bargain and violated Section 8(a)(5) of the Act when it discharged or suspended a worker without first notifying the worker’s union of the employer’s intention to discharge or suspend the employee and without first affording that union a reasonable opportunity to meet and bargain with the employer.  However, a recent Trump Board decision, Oberthur Technologies, 368 NLRB No. 5, issued on June 17, signals a probable change in the Board’s governing case law on this issue.  …
Continue Reading NLRB Limits Duty to Bargain Over Disciplinary Actions