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Labor & Collective Bargaining

Category Archives: NLRB

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NLRB Division of Advice on Making Unilateral Changes when Employer and Union are at Negotiations Stalemate

A unionized employer did not violate the National Labor Relations Act when, after reaching a bargaining impasse with the union, it unilaterally issued a health care proposal that gave it broad discretion to make unilateral changes to certain parts of the health care plan. According to a Memorandum issued by the National Labor Relations Board’s… Continue Reading

Congress Reviews NLRB Quickie Election Rule

In response to a move by House and Senate Republicans to block the NLRB’s “quickie election” rules, scheduled to take effect on April 14, 2015, National Labor Relations Board Chairman Mark G. Pearce issued the following statement on February 9: “The Board remains committed to the critical work of this agency and fully carrying out… Continue Reading

NLRB Begins New “Educational” Campaign in Run-Up to Quickie Election Rule

In a series of tweets, the National Labor Relations Board is using social media in an attempt to increase  concerted and union activity under the NLRA. Starting on February 4, 2015, the NLRB began tweeting exhortations to non-union employees  to utilize the Agency’s services and notifications to all employees about the broad jurisdictional reach of the NLRA:  Who… Continue Reading

Union Membership Remains Low Despite Administration’s Call on Workers to Join

According to Secretary of Labor Thomas E. Perez, a recent Bureau of Labor Statistics (BLS) report is evidence “that belonging to a union makes a powerful difference in people’s lives, providing greater economic security and helping them punch their ticket to the middle class” but data indicates union membership remains low. Although the January 23rd… Continue Reading

Chapter Two: Lawsuits Filed Challenging NLRB’s New Election Rules

Seeking a declaratory judgment and injunction against enforcement of the National Labor Relations Board’s new “quickie” election rule, on January 13, 2015, the Associated Builders and Contractors of Texas, Inc., Associated Builders and Contractors, Inc., Central Texas Chapter, and National Federation of Independent Business/Texas filed a complaint against the NLRB in the United States District… Continue Reading

Michigan Excludes Student-Athletes from Unions

Michigan has become the first state to exclude intercollegiate student-athletes at its public universities from the definition of a “public employee,” and therefore, the right to bargain collectively through a union. An amendment to Michigan’s Public Employee Relations Act signed by Governor Rick Snyder excludes from the definition of “public employee” (1) “a student participating… Continue Reading

NLRB Announces New Standards for Exercising Jurisdiction Over Religiously-Affiliated Colleges and Universities and for Determining Whether Faculty are Managers Excluded from Collective Bargaining

In what is certain to be a controversial decision that could spark widespread organizing of faculty in private colleges and universities, the National Labor Relations Board adopted new standards for determining whether to exercise jurisdiction over self-identified religious colleges and universities under the U.S. Supreme Court’s decision in NLRB v. Catholic Bishop, 440 U.S. 490… Continue Reading

Franchisor-Franchisee Relationship Focus of NLRB General Counsel

The National Labor Relations Board Office of the General Counsel has announced it has issued more than a dozen unfair labor practice complaints against McDonald’s franchisees and McDonald’s USA, LLC, as joint employers.  The complaints allege that McDonald’s USA, LLC and certain franchisees violated the rights of employees working at McDonald’s restaurants at various locations… Continue Reading

Board Adopts Presumption That Employees Can Use Employer’s Email System to Engage in Protected Activity

In a controversial but not unexpected decision, reversing precedent, a majority of the National Labor Relations Board held that absent special circumstances that justify specific restrictions employers must permit employees who have been provided access to their employer’s email system to use email for statutorily protected communications on their nonworking time  Purple Communications, Inc., 361… Continue Reading

NLRB Issues Final “Quickie” Election Rule

The National Labor Relations Board has adopted a final rule amending its representation–case procedures. The rule will be published in the Federal Register on December 15, and will take effect on April 14, 2015. The final rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members… Continue Reading

NLRB Requires Employers to Let Employees Use Workplace Email Systems for Union and Concerted Activities, Overruling 2007 Decision

In a landmark and not-unexpected ruling, the National Labor Relations Board decided today to require employers to allow their employees to use company email systems for Section 7 (union organizing and protected concerted activity) purposes during nonworking time.  Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014). The decision overrules the Board’s 2007 Register Guard… Continue Reading

Senate Confirms Lauren McFerran as Member of National Labor Relations Board

On December 8, the Senate confirmed Lauren McFerran (D) as a member of the National Labor Relations Board by a vote of 54-40, along party lines. Ms.  McFerran will replace Democrat Nancy Schiffer, whose appointment is set to expire December 16, 2014.  Employers should expect that her views will be similar to Member Schiffer’s pro-labor… Continue Reading

Substantial Doubt Cast on Imminence of “Quickie” Election Rule

Despite widespread expectations that the National Labor Relations Board would issue its final revised “quickie” election rules prior to the expiration of NLRB Member Nancy Schiffer’s term on December 16, 2014 (to avoid being frustrated by a 2-2 Republican-Democrat split after her departure), recent events suggest the Board might not be so eager to issue… Continue Reading

Senate Labor Committee Recommends Senate Confirmation of Democrat McFerran to the NLRB

The Senate Committee on Health, Education, Labor and Pensions has voted to recommend Senate confirmation of Democrat Lauren McFerran, President Barack Obama’s recent nominee  to the National Labor Relations Board.  During the December 2 vote, McFerran’s nomination was supported by the 12 Democrats on the Committee and opposed by all 10 Republicans. According to Senate… Continue Reading

District Court Orders NLRB Regional Director to Pay Over $55,000 in Attorneys’ Fees to Employer in 10(j) Fight

A U.S. District Court Judge in Arizona has ordered the National Labor Relations Board’s Regional Director in Phoenix, acting on behalf of the Board, to pay $55,000 in attorneys’ fees to an employer sued for a temporary injunction over the firing of four recently hired employees, despite awarding the Regional Director much of the relief… Continue Reading

NLRB’s Johnson and Griffin Review Pitfalls Associated With Employer Monitoring of Social Media

Officials of the National Labor Relations Board recently weighed in on the legal risks employers bear under the National Labor Relations Act when monitoring employee/applicant use of social media. During a panel discussion in Pennsylvania [as reported in Law360 (November 12, 2014)], Board Member Harry Johnson and NLRB General Counsel Richard Griffin confirmed what may… Continue Reading

President Obama Withdraws NLRB Nominee

President Barack Obama reportedly has withdrawn former-National Labor Relations Board member Sharon Block’s nomination to the NLRB to replace Nancy Schiffer, whose term expires on December 16, 2014.  Obama instead will nominate Lauren McFerran, chief labor counsel for the Senate Health, Education, Labor and Pensions Committee. Block’s renomination earlier this year has met with significant… Continue Reading

Predictably, Post-Noel Canning, Board Batting 1.000

The National Labor Relations Board through November 5 has reconsidered 35 decisions issued by Board panels found to be invalidly constituted under the Supreme Court’s ruling in NLRB v. Noel Canning.  Not surprisingly, in all of the decisions it has reconsidered, the NLRB reached the same conclusions as did the original, invalid Board panels.  See… Continue Reading

NLRB Rules against Employee Arbitration Agreements with Class or Collective Actions Limitations

Despite criticism from some United States Courts of Appeals, the National Labor Relations Board (“NLRB”) has reasserted its position in D.R. Horton in which it held that class-action lawsuits are protected under the National Labor Relations Act (“NLRA”).  Murphy Oil USA, Inc., 361 NLRB No. 72 (Oct. 28, 2014). In its 2012 D.R. Horton Inc.,… Continue Reading

What the November Election May Mean to the “Quickie” Election Rule

The National Labor Relations Board may be poised to  issue its revised “quickie” election case rules before NLRB Member Nancy Schiffer’s term expires on December 16, 2014 (see Expect NLRB Whirlwind before Schiffer Leaves). But the revised election rules could be short-lived. After the Republicans have gained a majority the Senate in the midterm elections,… Continue Reading

Employer Can Discharge Disloyal Employee, NLRB Division of Advice Finds

An employer may discipline employees who engage in disloyal conduct by disclosing confidential information obtained in the course of their job duties, the Board’s Division of Advice has found, concluding that an employer did not commit an unfair labor practice (under Section 8(a)(1) of the NLRA) when it discharged an employee.  IAM District Lodge 751,… Continue Reading

Expect NLRB Whirlwind before Schiffer Leaves

Hold on for the National Labor Relations Board’s version of the popular Disneyland attraction, Mr. Toad’s Wild Ride. With NLRB Member Nancy Schiffer’s term ending on December 16, 2014, expect a flurry of important NLRB activity similar to that which attended the expiration of former-NLRB Member Brian Hayes’ term on December 16, 2012. Among the… Continue Reading

NLRB Cannot Show Unlawful Discharges Where Decision-Maker Was Unaware Of Employees’ Pro-Union Activity

Rejecting a National Labor Relations Board decision that two employees were unlawfully discharged for engaging in union activities because there was no evidence that the person who made the decision to discharge the workers knew that they had engaged in any union activity, a federal appeals court in Richmond has refused to enforce a Board… Continue Reading