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
The Department of Labor fully rescinded the 2016 changes made to the Persuader Rules. The DOL concluded that the 2016 rule changes “exceeded the authority of the Labor-Management Reporting and Disclosure Act (LMRDA)” because...more
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
My 16-year-old daughter, Helena, recently expressed an interest in helping veterans for a high school service project. I immediately took out my phone and emailed my partner Colleen Hart, a veteran of the U.S. Navy, who is...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
The Board is now operating at a full complement and is issuing decisions on a fairly regular basis. Nothing earth shattering in terms of law (which is kind of a relief) but there are some interesting issues worth discussing....more
5/10/2018
/ Administrative Law Judge (ALJ) ,
Burden-Shifting ,
Contract Negotiations ,
Employee Misconduct ,
Employer Liability Issues ,
Employment Discrimination ,
Hiring & Firing ,
Internal Investigations ,
NLRB ,
Property Damage ,
Protected Concerted Activity ,
Right to Picket ,
Strike ,
Unions
By a vote of 50 to 48 the U.S. Senate confirmed Republican John Ring as a Member of the National Labor Relations Board, giving the agency a full five member complement. Member Ring, whose term expires December 16, 2022, takes...more
As we have seen, there are few things that can be counted on in labor relations. Oftentimes, several experts look at the same problem and come to vastly different conclusions. What is (almost) guaranteed, however, is that the...more
3/15/2018
/ Administrative Law Judge (ALJ) ,
Charging Party ,
Credibility ,
Employer Liability Issues ,
Internal Investigations ,
NLRB ,
Reversal ,
Sexual Harassment ,
Sexual Stereotyping ,
Testimonial Statements ,
Unfair Labor Practices ,
Unions ,
Witness Statements ,
Witnesses
The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development,...more
As we have noted previously, the make-up of the Board currently stands at four out of five total members, divided evenly between two warring factions making it pretty much impossible to change the law which requires a...more
December saw a flurry of decisions by the NLRB as it briefly held a full complement. The Board currently has only four members and so law-changing decisions are less likely to occur until a new member is confirmed....more
In the last few years, December has been a time of change at the NLRB. The last few Decembers have seen precedent overturned and other sweeping decisions issue from the Board.
This December is no different. With Chairman...more