This summer has been punctuated by walkouts. We have seen walkouts in support of a $15 minimum wage and walkouts to protest the sale of goods to the government. Walking off the job is, of course, a staple of labor action, and...more
7/31/2019
/ Administrative Law Judge (ALJ) ,
Corporate Counsel ,
Employee Rights ,
Employment Policies ,
NLRA ,
NLRB ,
Protected Activity ,
Strike ,
Unions ,
Wage and Hour ,
Wal-Mart
On the eve of Independence Day, the NLRB, in a 3-1 decision (Member McFerran dissented), clarified the law concerning withdrawal and enunciated a new framework for determining whether a union has retained majority support at...more
7/8/2019
/ Collective Bargaining ,
Collective Bargaining Agreements (CBA) ,
Contract Terms ,
Corporate Counsel ,
Employer Liability Issues ,
NLRA ,
NLRB ,
Unfair Labor Practices ,
Union Elections ,
Union Representatives ,
Unions ,
Withdrawal
Citing judicial criticism, as well as the original Supreme Court decisions on the issue, the NLRB swept away years of precedent permitting union representatives to access public areas of an employer’s premises.
In UPMC...more
6/18/2019
/ Administrative Law Judge (ALJ) ,
Bright-Line Rule ,
Disparate Treatment ,
Employee Rights ,
New Rules ,
NLRA ,
NLRB ,
Private Property ,
Property Owners ,
Public Access Laws ,
Public Property ,
Solicitation ,
Surveillance ,
Union Organizers ,
Union Representatives ,
Unions
Employers with union-represented employees also always have non-union employees, whether working in the office or at another worksite. Invariably, there are differences between the wages, benefits, and terms and conditions of...more
6/4/2019
/ Administrative Law Judge (ALJ) ,
Collective Bargaining ,
Collective Bargaining Agreements (CBA) ,
Employer Liability Issues ,
Employment Contract ,
Holiday Pay ,
NLRA ,
NLRB ,
Union Representatives ,
Unions ,
Wage and Hour
The NLRB currently is churning out cases and Advice Memoranda at a fairly regular pace. We recently discussed NLRB decisions addressing information requests, handbook statements, and confidential informants....more
In an Advice Memorandum dated April 16, 2019, but released on May 14, 2019, the NLRB’s General Counsel staked out a position in one of the most contentious and influential questions in labor and employment law today: Whether...more
5/16/2019
/ CA Supreme Court ,
Department of Labor (DOL) ,
Drivers ,
Employer Liability Issues ,
Entrepreneurs ,
Fair Labor Standards Act (FLSA) ,
Gig Economy ,
Independent Contractors ,
NLRA ,
NLRB ,
State and Local Government ,
State Labor Laws
Information requests in the realm of labor relations are simple in theory but can be complicated in practice. We have seen how the topics of information sought by a union can cause skirmishes, sometimes deliberately so. We...more
4/5/2019
/ Administrative Law Judge (ALJ) ,
Business Conduct Standards ,
Collective Bargaining Agreements (CBA) ,
Confidential Information ,
Employment Contract ,
Employment Policies ,
Information Requests ,
NLRB ,
Privacy Concerns ,
Publicly-Traded Companies ,
Unions ,
Wage and Hour
During the last decade, a number of NLRB decisions faulted employers for written policies that were considered to be overbroad in violation of the National Labor Relations Act. These rulings sprang largely from the NLRB’s...more
2/27/2019
/ Appeals ,
Collective Bargaining ,
Collective Bargaining Agreements (CBA) ,
Corporate Counsel ,
Employee Handbooks ,
Employee Rights ,
Employment Policies ,
NLRA ,
NLRB ,
Section 7 ,
Union Representatives ,
Unions
An employer’s duty to provide information to the union representing its employees is a frequent of topic of interest to labor relations practitioners because it is very easy to violate the law. For example, an employer’s...more
How the NLRB treats employer statements made to employees in the context of union organizing or other protected activity has been a frequent topic of discussion. While the actual case law analyzing the coerciveness of an...more
2/14/2019
/ Administrative Law Judge (ALJ) ,
Coercion ,
Corporate Counsel ,
Employer Liability Issues ,
Hiring & Firing ,
Interrogations ,
NLRB ,
Termination ,
Totality of Circumstances Test ,
Unfair Labor Practices ,
Unions ,
Witness Statements
On February 4, the NLRB granted United Federation of Teachers, Local 2, AFT, AFL-CIO’s (the “Union”) request for review of the Regional Director’s Decision and Direction of Election concerning a decertification petition filed...more
The right of employees to band together for purposes of bringing grievances to their employer is at the very core of the National Labor Relations Act, as embodied in Section 7. This right is called protected concerted...more
There have been many precedent changing decisions coming from the NLRB in the last few years. Few of these changes were more hotly contested, or farther reaching, than the Board’s decision in Browning-Ferris where it altered...more
We recently saw interesting decisions from the NLRB including cases about the employer’s duty to provide information about tax cuts, the lawfulness of litigation holds, and the validity of decertification petitions.
At the...more
1/14/2019
/ Administrative Law Judge (ALJ) ,
Coercion ,
Collective Bargaining ,
Decertification ,
Employer Liability Issues ,
NLRA ,
NLRB ,
NLRB General Counsel ,
Protests ,
Right to Picket ,
Secondary Boycott ,
Unions ,
Wage and Hour
Recently, we explored how the NLRB’s rules for determining the timeliness of a representation can be confusing. Another area of complexity comes from whether a decertification petition will be processed in the face of unfair...more
Last year about this time, the NLRB changed the standard for reviewing handbook rules. The new standard takes into consideration the fact there are many other interests other than the NLRA at play in a workplace, and seems to...more
12/24/2018
/ Data Retention ,
Duty to Preserve ,
Employee Handbooks ,
Employer Liability Issues ,
Employment Litigation ,
Litigation Hold ,
NLRB ,
Policy Memorandums ,
Protected Concerted Activity ,
Regulatory Oversight ,
Section 7 ,
Unions ,
Wage and Hour
The NLRB recently made public its NLRB Strategic Plan FY 2019-FY2022 wherein it states it wants to reduce time to handle cases before it by 5% per year at each stage of the case processing. The Strategic Plan provides an...more
In prior posts, we have discussed how information requests made in the context of a bargaining relationship can be vexing. The standard of the employer’s obligation to provide information can be a moving target, depending on...more
As we have noted at times, the human element in labor relations makes for interesting situations. One of the more interesting issues is the timeliness of representation petitions, which, despite the existence of clear rules,...more
The Board issued an interesting decision discussing an employer’s successful efforts to repudiate unlawful conduct, which we’ll get to in a minute. In our last post, we discussed a simmering dispute over the circumstances...more
The NLRB has been in a period of dormancy. When the make-up of the Board changed, a lot of people expected an onslaught of NLRB decisions reversing the reversals of precedent made by the agency in the last 8 years. Except...more
As we hurtle toward Labor Day, and the probable onslaught of decisions, and as NLRB Member Pearce’s tenure ends on August 27, the Board has been issuing a steady stream of cases. Many of these appear to be garden variety type...more
8/28/2018
/ Administrative Law Judge (ALJ) ,
Coercion ,
Collective Bargaining ,
Constructive Discharge ,
Employee Transfers ,
Hiring & Firing ,
NLRB ,
Performance Reviews ,
Protected Concerted Activity ,
Section 7 ,
Unfair Labor Practices ,
Unions
Since December 2017, when the Board issued a number of decisions which restored precedent that had been changed in the last few years, not much of note has been happening at the Board. Indeed, there was not a full complement...more
One area of labor relations that continues to vex practitioners is the scope of the so-called Weingarten rights. NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975). Some 43 years after the Supreme Court set forth the right that...more
As we previously reported the NLRB’s “joint employer” standard has vacillated over the last several years, and currently remains in flux. For historical reference, the NLRB expanded the scope of joint-employment in 2015 in...more