Union Issues

Subscribe to Union Issues

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

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

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 could not lawfully exclude union organizers from entering and using that same “public space” because that exclusion was considered to be unlawful discrimination in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA or Act). The Board’s decision in UPMC, 368 NLRB No. 2, rejects this generalized “public area” doctrine, redefines what is and isn’t unlawful discrimination for the purposes of determining a union’s right of access to an employer’s public spaces and, broadens employer’s legal options under the NLRA. …
Continue Reading NLRB Limits Union Access Rights to “Public Spaces” of Employers

In The Boeing Company, 365 NLRB No. 154 (2017), the National Labor Relations Board (NLRB) reassessed the standard it would apply when determining the facial validity of otherwise neutral work rules based upon a balancing between a given rule’s negative impact on employee’s ability to exercise their statutory rights and the rule’s connection to an employer’s right to maintain discipline and productivity in the workplace. For the purpose of applying this new balancing standard, the Boeing Board trifurcated all work rules into one of three distinct categories. First, a Category 1 rule is a work rule that does not prohibit or interfere with the exercise of statutory rights or one whose potential impact on statutory rights is relatively slight or outweighed by the business justification associated with the rule. According to Boeing, the maintenance of such rules is to be considered lawful. Next are Category 2 rules, which are neither “obviously” lawful nor unlawful and which may adversely impact NLRA-guaranteed rights. Under Boeing, their lawfulness is to be determined on a case-by-case basis and depends upon whether the rule’s adverse impact on statutory rights is outweighed by the employer’s interest in maintaining the rule. Finally, Category 3 rules are those that on their face prohibit or limit statutory rights and whose impact on statutory rights outweigh the business justifications associated with the rule. Category 3 rules are facially invalid, rendering their mere maintenance unlawful.
Continue Reading NLRB’s Division of Advice Gives “Advice” As to the Application of Boeing — When a Work Rule/Employment Agreement is Facially Valid Under the NLRA in Union and Union Free Workplaces

On June 6, 2018, the National Labor Relations Board’s (“NLRB” or “Board”) General Counsel issued Memorandum GC 18-04 (“GC 18-04”), which provides guidance to employers on the legality of certain handbook rules following the Board’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).  By way of background, in 2004, the Board issued Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which held that the mere maintenance of a neutral work rule violated Section 8(a)(1) of the National Labor Relations Act (“NLRA” or “Act”) if employees would “reasonably construe” the rule to prohibit protected concerted activity under Section 7 of the NLRA.  The Lutheran Heritage test gave no consideration to the employer’s stated justifications for implementing the rule, and produced arbitrary and oftentimes nonsensical Board decisions that appeared to hinge on what the then-Board majority believed an employee may think about a particular rule. In Boeing, the Board overruled the “reasonably construe” standard announced in Lutheran Heritage and issued a new test that balanced the impact a reasonably interpreted, facially neutral rule may have on employees’ Section 7 rights with the employer’s business justifications for the rule.  The Board noted that work rules will likely fall into three categories: Category 1 rules, which will include rules that the Board deems to be facially lawful; Category 2 rules, which will require individualized scrutiny to determine if the rules are lawful; and Category 3 rules, which will be rules designated by the Board as unlawful.  A more detailed discussion of the Boeing case is available here.
Continue Reading National Labor Relations Board’s General Counsel Releases Memorandum Providing Guidance On Handbook Rules After Its December 2017 Boeing Decision

On April 11, 2018, former management lawyer John Ring was confirmed via a 50-48 party-line vote to serve on the five-member National Labor Relations Board (“Board”). Ring will replace Chairman Marvin Kaplan, another member of the Board’s Republican majority appointed by President Trump. Ring’s confirmation sets the stage for undoing many Obama-era rulings that have sparked controversy within the employer community. However, not all Obama-era cases may be fair game.
Continue Reading Labor Board Back to Five Member Composition – What Obama-Era Precedent Is Next on the Chopping Block?

An employer violated employee’s labor rights by offering her a separation agreement that contained unlawful terms ruled a National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”) in Baylor Univ. Med. Ctr., Case No. 16-CA-195335 (Fort Worth, TX, February 12, 2018) (“Baylor”).

This decision is one of the first ALJ rulings to apply the NLRB’s new standard for addressing the legality of facially neutral work rules applicable to union and non-union workplaces under The Boeing Company, 365 NLRB No. 154 (December 14, 2017) (“Boeing”). In Boeing, the new Republican NLRB majority overruled Lutheran Heritage Village-Livonia, 343 NLRB 646 (“Lutheran Heritage”) and announced a new standard it will follow when it evaluates a work rule that, when reasonably interpreted, could potentially interfere with union and other protected concerted activity under Section 7 of the NLRA (Section 7 conduct). Notwithstanding the new, more pro-business Boeing standard, the ALJ found that Baylor violated federal labor law when it offered a terminated employee $10,000 in exchange for signing a severance agreement and general release that included two unlawful provisions. The severance provisions at issue in the case were:…
Continue Reading Considering Offering Severance Pay in Exchange for Certain Post-Employment Obligations? Think Again.

On the eve of Chairman Phillip Miscimarra’s departure from the NLRB, he gave one final gift to employers: the overturning of Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), an Obama-Era Board decision that allowed unions to organize “micro-units” of employees—drastically limiting any challenges employers could have to a petitioned-for unit before being forced to negotiate with fractured units of employees throughout its workforce. In PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017), the Board reinstated the traditional community of interest standard to be used when determining whether unions have included all necessary employees on a petition for union representation. The Board’s reversal is a welcomed relief to employers who have been forced to bargain with several small units of employees in one workplace, thereby preventing all employees at a worksite from exercising their rights to vote on union representation.
Continue Reading The End of Union-Dictated Micro-Units: NLRB Overturns Specialty Healthcare