NLRB UPDATE: Key Precedents Likely to Fall Under Liebman Board - Part V

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Earlier this year, Ford & Harrison began our series NLRB Update, analyzing 10 critical decisions issued by the Bush-appointed National Labor Relations Board ("NLRB" or "Board") that likely will be overturned in the next few years if reconsidered by an Obama-appointed Board now chaired by Wilma Liebman. Member Liebman's new position as Board Chair is particularly important, as she issued dissents in most of the critical pro-employer decisions issued under the Bush-era labor Board, challenging the reasoning and conclusions reached by the Board majority. Careful analysis of Liebman's dissenting opinions in these major decisions provides a legal roadmap – charting the likely course the Liebman Board will take if it is able to reconsider these issues.

•Part I of this series analyzed IBM Corp., 341 NLRB 1288 (2004), concerning the representation rights of non-union employees.

• Part II of this series analyzed Guard Publishing Co. (Register Guard), 351 NLRB 1110 (2007), concerning the employer's right to restrict employee use of company e-mail to preclude union related communications.

•Part III of this series analyzed BE&K Construction Co., 351 NLRB 451 (2007), in which the Board held that an employer's unsuccessful but reasonably based lawsuit against a union does not constitute unlawful interference of Section 7 rights – even if the lawsuit has a retaliatory motive.

•Part IV of this series analyzed Dana Corp., 351 NLRB 434 (2007), in which the Board overruled forty years of Board precedent to hold that an employer's voluntary recognition of a labor union does not bar a decertification petition

oIn Part V of this series, we analyze H.S. Care, LLC (Oakwood Care Center), 343 NLRB 659 (2004), in which the Board determined that outside temporary employees could not be included in a bargaining unit with regular company employees unless both the regular employer and the staffing company consent to include both groups in the same unit.

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