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Labor & Collective Bargaining

Category Archives: NLRB

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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

Employer’s Warning Violates NLRA, Board Rules

An employer’s verbal warning for “continued frivolous requests for information…and interfering with the operation of the business,” directed to a shop steward who made two  requests to the employer for information including payroll information, violated the National Labor Relations Act, according to the National Labor Relations Board. Dover Energy, Inc.,Blackmer Division, 361 NLRB No. 48… Continue Reading

416 Reasons Why There is No Rest for the NLRB

When the U.S. Supreme Court decided in June that President Barack Obama’s three recess appointments to the National Labor Relations Board in January 2012 were invalid, NLRB Chairman Mark Gaston Pearce stated, “[The Board is] committed to resolving any cases affected by today’s decision as expeditiously as possible.” Now, the Board has issued a 21-page… Continue Reading

Republican Senators Propose to Make Significant Changes to NLRA

If two Republican United States Senators have their way, membership on the National Labor Relations Board will be increased from five to six, and other  significant changes will be made to the National Labor Relations Act. The “National Labor Relations Board Reform Act,” introduced on September 16 by Senators Lamar Alexander (R-TN) and Mitch McConnell… Continue Reading

Firings for Facebook Comments Unlawful, NLRB Rules

An employer violated the National Labor Relations Act by discharging two employees because of their participation in a Facebook discussion about their employer’s State income tax withholding mistakes, by threatening employees with discharge for their Facebook activity, by questioning employees about that activity, and by informing employees they were being discharged because of their Facebook… Continue Reading

Labor Board Rejects Micro-Unit at Retailer

In a long-awaited decision, the National Labor Relations Board has held that a petitioned-for “micro” bargaining unit consisting of women’s shoe sales associates working in two areas within a store, which followed no administrative or operational lines set by the store, was inappropriate under Specialty Healthcare, 357 NLRB No. 83 (2011), where the Board seemingly… Continue Reading

NLRB Precedent Not Binding after Noel Canning, Labor Board Judge Declares, Rejecting Claimed Dues Deduction Violation

In an unusual move, an NLRB administrative law judge has disregarded Board law and held that an employer that stopped dues deductions after the expiration of its collective bargaining agreement did not commit an unfair labor practice, dismissing an unfair labor practice complaint.  Lincoln Lutheran of Racine, 30-CA-11099 (JD-49-14 August 11, 2014) Relying on the United… Continue Reading

It’s Basic: Party Desiring Termination or Modification of CBA Must Notify FMCS and All Applicable State Agencies

The National Labor Relations Act requires an employer that wants to terminate or modify an existing union contract to provide at least 30 days’ notice to the Federal Mediation and Conciliation Service (FMCS) and all the relevant state mediation agencies before terminating or modifying the contract.  The possible consequences of failing to fully comply with… Continue Reading

NLRB’s Sobering Decision Permits Union Representation Before Employee Drug Test

The National Labor Relations Board has held that a supermarket chain violated the National Labor Relations Act by terminating an employee who refused to submit to a drug test without first consulting a union representative, affirming an April 2013 decision by its Administrative Law Judge.  Ralphs Grocery Co., 361 NLRB No. 9 (July 31, 2014). … Continue Reading