On July 15, 2020, the National Labor Relations Board’s (“NLRB”) Division of Advice published 16 Advice Memoranda addressing myriad questions posed by various Regional Offices.
While a majority of the Memoranda were drafted...more
7/22/2020
/ Coronavirus/COVID-19 ,
Corporate Counsel ,
Employee Handbooks ,
Family and Medical Leave Act (FMLA) ,
Hiring & Firing ,
Infectious Diseases ,
NLRA ,
NLRB ,
NLRB General Counsel ,
Policy Memorandums ,
Protected Concerted Activity ,
Regulatory Standards ,
Section 7 ,
Unfair Labor Practices
After a brief delay where the NLRB suspended all representation elections from March 19 through April 6, 2020, NLRB Regional Directors have since largely required elections to be held via mail ballot to curb the spread of...more
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
The National Labor Relations Board continues to overrule Obama-Board precedent at a rapid pace.
On June 23, 2020, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the Board...more
6/25/2020
/ Administrative Law Judge (ALJ) ,
Collective Bargaining Agreements (CBA) ,
Discipline ,
Duty to Bargain ,
Employer Liability Issues ,
Employment Policies ,
Labor Relations ,
NLRA ,
NLRB ,
Unfair Labor Practices ,
Unions
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
After an initial COVID-19 related delay, the sweeping new NLRB representation election rules that reversed the Obama-era “quickie” election process were about to go into effect on May 31, 2020. However, an eleventh-hour...more
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
As we discussed, the National Labor Relations Board decided early this month that it would temporarily suspend the remedial notice-posting and emailing requirement at facilities shut down due to the COVID-19 pandemic until...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
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
On March 27, 2020, NLRB General Counsel Peter Robb issued Memorandum GC-20-04 to provide guidance to NLRB regional offices and the general public.
Acknowledging that “we are [currently] in an unprecedented situation,” 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
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
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
Similar to other disagreements between the NLRB and D.C. Circuit, a tension developed during the last several years regarding the appropriate standard to determine whether teachers at religious schools are covered by the NLRA...more
2/3/2020
/ Appeals ,
Employer Liability Issues ,
First Amendment ,
Jurisdiction ,
Lack of Jurisdiction ,
NLRA ,
NLRB ,
Pacific Lutheran University ,
Religious Institutions ,
Religious Schools ,
Teachers ,
Unfair Labor Practices ,
Union Membership ,
Unions
Shamrock Foods Company, 369 N.L.R.B. No. 5 (January 7, 2020) is the latest in the National Labor Relations Board’s series of employer-friendly decisions. In Shamrock Foods, the Board held that an employer did not violate...more
1/13/2020
/ Administrative Law Judge (ALJ) ,
Employee Rights ,
Equal Employment Opportunity Commission (EEOC) ,
Hiring & Firing ,
NLRA ,
NLRB ,
Reinstatement ,
Section 7 ,
Settlement Agreements ,
Termination ,
Unfair Labor Practices ,
Unions
In yet another end-of-2019 decision overruling significant NLRA precedent, the Board reverted to the less stringent Spielberg / Olin standard for determining whether to defer to arbitration decisions in the context of Section...more
1/3/2020
/ Administrative Law Judge (ALJ) ,
Arbitration ,
Arbitration Agreements ,
Babcock & Wilcox Construction ,
Collective Bargaining Agreements (CBA) ,
Contract Terms ,
Disciplinary Proceedings ,
Employment Contract ,
Filing Grievances ,
Grievance Process ,
Hiring & Firing ,
Labor Law Violations ,
Labor Reform ,
Labor Relations ,
NLRA ,
NLRB ,
Unfair Labor Practices ,
Unions ,
UPS ,
Wrongful Termination
The Board continues churning out precedent-setting decisions as year-end approaches. Two days before the Christmas holiday, in Wal-Mart Stores, Inc., 368 NLRB No. 146 (Dec. 16, 2019), the NLRB applied its new view on handbook...more