In late May, on the eve of the effective date of the NLRB’s sweeping changes to the election process, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia held that certain of the new rules were...more
In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality...more
6/23/2020
/ Administrative Law Judge (ALJ) ,
Arbitration ,
Arbitration Agreements ,
Boeing ,
Confidentiality Agreements ,
Employment Contract ,
Employment Policies ,
Epic Systems Corp v Lewis ,
Federal Arbitration Act ,
NLRA ,
NLRB ,
Section 7 ,
Workplace Investigations
We have seen this movie before. NLRB precedent established by the Board under the prior Administration conflicted sharply with decisions by the D.C. Circuit reviewing the Board. Then the current iteration of the Board...more
6/12/2020
/ Collective Bargaining ,
Corporate Counsel ,
Educational Institutions ,
Faculty ,
First Amendment ,
Jurisdiction ,
NLRA ,
NLRB ,
Pacific Lutheran University ,
Religious Institutions ,
Religious Schools ,
Unions ,
Universities
On June 5, 2020, the NLRB held, in Teamsters Local Union No. 735-S (Bemis Co., Inc.), 369 NLRB No. 97, that union officials’ retaliatory actions against members who participated in an investigation resulting in the discharge...more
6/10/2020
/ Administrative Law Judge (ALJ) ,
Bargaining Units ,
Burden-Shifting ,
Bylaws ,
Corporate Counsel ,
Disciplinary Proceedings ,
Employment Litigation ,
Labor Relations ,
NLRA ,
NLRB ,
Protected Activity ,
Section 7 ,
Unions
On May 29, 2020, the NLRB issued an important opinion overruling two decisions in order to define the term “solicitation” in a manner consistent with prior Board decisions and the dictionary definition of the term. Wynn Las...more
6/4/2020
/ Administrative Law Judge (ALJ) ,
Casino Employee ,
Casinos ,
ConAgra ,
Employer Liability Issues ,
Employment Policies ,
NLRB ,
Non-Solicitation Agreements ,
Solicitation ,
Union Elections ,
Unions ,
Wal-Mart
As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases....more
6/1/2020
/ Administrative Law Judge (ALJ) ,
Boeing ,
Coronavirus/COVID-19 ,
Employee Handbooks ,
Employer Liability Issues ,
Employment Policies ,
Infectious Diseases ,
NLRA ,
NLRB ,
Protected Concerted Activity ,
Section 7
In December 2019, the NLRB announced its Final Rule governing representation case procedures. The Final Rule applies to petitions filed on or after May 31, 2020. With the effective date fast approaching, NLRB Regions...more
On May 21, 2020, the NLRB issued a decision in Altura Communication Solutions, LLC. The case asked the Board to consider whether a series of broad proposals made by the employer during collective bargaining amounted to bad...more
5/28/2020
/ Bad Faith ,
Collective Bargaining Agreements (CBA) ,
Disability Benefits ,
Duty to Bargain ,
Employer Liability Issues ,
Grievance Process ,
Labor Relations ,
Management Rights Clauses ,
NLRA ,
NLRB ,
Unfair Labor Practices ,
Unions
As many states throughout the country have begun implementing phased reopening plans, so too has the NLRB begun to return to a semblance of normality. Representation elections resumed in early April, and the NLRB recently...more
One area of controversy over the years is the NLRB’s attempt to interpret markings on representation ballots that are not clearly “yes” or “no.” This has given rise to a number of tests for divining voter intent. Overruling...more
As most of the country’s workforce continues to adjust to the new realities of social distancing, stay-at-home orders, and limited travel, the practice of law and the forums for adjudicating disputes have shifted to video and...more
The Board continues to issue decisions amidst the COVID-19 pandemic, while acknowledging that business operations around the country are far from “business as usual.” The agency is up and running. Representation elections...more
We have often reported about how an employer’s failure to adequately respond to an information request made by a union can lead to unfair labor practice charges and litigation. Sometimes a union makes an information request...more
As the NLRB continues to navigate the uncertainty in the work landscape during the ongoing COVID-19 pandemic, it seems to have stayed largely on course, regularly issuing decisions touching on a number of important topics...more
In maintaining business as usual as best it can amidst the ongoing COVID-19 crisis, the Board recently decided an issue concerning limitations on employer campaign tactics, and an employer’s limits in restricting discussions...more
As we reported here, on April 1, 2020, the NLRB published its final rule making three amendments to its rules and regulations governing union elections (relating to the Board’s blocking charge policy; timing and notice...more
4/9/2020
/ Collective Bargaining ,
Comment Period ,
Construction Industry ,
Employee Rights ,
Labor Law Violations ,
Labor Regulations ,
Labor Relations ,
NLRA ,
NLRB ,
Proposed Amendments ,
Public Comment ,
Regulatory Agenda ,
Rulemaking Process ,
Union Elections ,
Union Representatives ,
Unions
In the past, we frequently have discussed protected activity and how an employee’s profane outburst or deliberate conduct may render otherwise protected activity, “unprotected.” However, as this recently issued decision...more
On March 19, 2020, the NLRB announced that it was suspending all representation elections through April 3, 2020. The Board stated that the suspension was necessary to ensure the safety of its own employees, as well as those...more
Although, like everyone else, the personnel at the NLRB have been consumed with the impact of the COVID-19 pandemic on daily operations, including the ability of its Regional Offices to function and serve the public, the...more
The NLRB continues to operate during the novel coronavirus crisis. Regional offices are largely working remotely as is the rest of the country. The Board itself continues to issue decisions, albeit at a slower pace than...more
When it comes to an unfair practice allegation asserting an employer’s statement is unlawful, words matter. And, so does context. Under NLRB case law, the actual employer statements are evaluated as well as the overall...more
3/6/2020
/ Administrative Law Judge (ALJ) ,
Corporate Counsel ,
Employee Rights ,
Employee Training ,
Interrogations ,
NLRA ,
NLRB ,
Protected Concerted Activity ,
Section 7 ,
Temporary Employees ,
Unfair Labor Practices
Applying the facially neutral work rule test laid out in Boeing, the Board recently reversed an Administrative Law Judge decision, concluding that the employer maintained lawful workplace rules restricting employee use of (i)...more
2/24/2020
/ Administrative Law Judge (ALJ) ,
Boeing ,
Confidentiality Agreements ,
Corporate Counsel ,
Employee Handbooks ,
Employee Rights ,
Employer Liability Issues ,
Employment Policies ,
NLRB ,
Protected Concerted Activity ,
Purple Communications ,
Section 7 ,
Workplace Safety
On February 7, 2020 the National Labor Relations Board (“NLRB”) sued the State of Oregon in federal court seeking a declaratory judgement to invalidate a state statute that protects employees who refuse to attend lawful...more
In its January 31, 2020 decision in Phillips 66, 369 NLRB No. 13 (January 31, 2020) the Board reversed a number of findings of unfair labor practices found by an Administrative Law Judge related to the employer’s conduct...more
2/15/2020
/ Administrative Law Judge (ALJ) ,
Collective Bargaining ,
Collective Bargaining Agreements (CBA) ,
Employer Liability Issues ,
Employment Contract ,
Good Faith ,
NLRB ,
Terms and Conditions ,
Unfair Labor Practices ,
Unions ,
Wage and Hour
On Thursday, February 6, 2020 the U.S. House of Representatives passed the Protecting the Right to Organize Act, also known as the “PRO Act”. The legislation passed mostly along party lines, would provide sweeping changes to...more
2/10/2020
/ Collective Bargaining Agreements (CBA) ,
Employer Liability Issues ,
Gig Economy ,
Hiring & Firing ,
Independent Contractors ,
Labor Regulations ,
Labor Relations ,
New Legislation ,
NLRA ,
NLRB ,
Right to Work ,
Section 7 ,
Unfair Labor Practices ,
Unions