Terry Potter

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A former field attorney with the National Labor Relations Board (NLRB), Terry views labor and employment cases from an insider’s perspective. He represents employers in collective bargaining, arbitrations and union avoidance techniques in a myriad of factual settings before the NLRB, National Mediation Board (NMB) and various state public labor relations boards.

Latest Articles

Memorandum 19-05, issued by the NLRB Division of Operations Management of the Office of the General Counsel in March 2019, gives Regional Directors a new tool to expedite cases when a charged party fails to cooperate with an unfair labor practice (ULP) investigation. Instead of relying on investigative subpoenas to acquire additional information, Regional Directors may issue complaints based on “evidence available.”  The new authorization is designed to reduce case processing time consistent with…
On April 2, 2019, in a 3-1 decision split along party lines, the Trump administration’s National Labor Relations Board (Board) appointees significantly narrowed the circumstances under which a successor employer will be construed as a perfectly clear successor and forced to forfeit its right to set initial employment terms. The decision, Ridgewood Health Care Center Inc., and Ridgewood Health Services, Inc., overrules precedent which had established that a successor employer which uses discriminatory hiring…
Unions commonly utilize clarification petitions to invoke accretion principles and try to bypass election procedures. However, the National Labor Relations Board’s recent decision in Recology Hay Road and Teamsters Local 315 illustrates how employers can avoid employee accretion into existing bargaining units by emphasizing the lack of interchange between bargaining unit employees and the non-bargaining unit employees at issue. Interchange occurs when employees alternate or transfer between positions.…
Although the National Labor Relations Act was initially established to assist unions in organizing employees, its scope is much broader as it also protects employees’ rights to engage in “protected concerted activity.” The NLRB’s interpretation of what constitutes protected concerted activity has fluctuated over the years and, in particular, under the Obama administration it expanded significantly beyond its original scope.  In the Board’s recent decision of Alstate Maintenance, LLC the Board acknowledged a need to…
Those involved in the world of healthcare cannot escape the ongoing debate regarding staffing levels at healthcare facilities. Main Coast Memorial Hospital recently became an unwitting focal point for this discussion.  A number of internal communications between the nurses’ union and the Hospital over staffing resulted in a series of editorials in the local newspaper.  This in turn motivated a non-union employee to write a letter to the editor supporting the position of the union…
After years of stringent oversight, the National labor Relations Board (“NLRB”) is now loosening the reigns over workplace rules. The Office of the General Counsel of the NLRB recently issued an advice memo analyzing the social media policy of Kumho Tires, a Georgia-based tire manufacturer.  The General Counsel found the employer’s policy was facially lawful under the NLRB’s decision in The Boeing Company, 365 NLRB No. 154, and therefore the employer did not violate Section…
  For a number of years now, since the Missouri’s Supreme Court’s 2007 decision in Independence NEA v. Independence School District, there has been a great deal of confusion regarding the collective bargaining process in the State of Missouri for public employees.  All processes for those employees that were specifically excluded from the statutory procedures of the State Board of Mediation were subject to what various circuit courts believed to be the appropriate procedure in…
Last week, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded a pro-employee Board decision concerning an employee who had been discharged based on the “disparaging content” of the testimony he made before state legislators. Back in October 2012, a bargaining unit employee of Oncor Electric Delivery Company (Bobby Reed) testified before a Texas senate committee that had been tasked with studying the impact of utilizing digital metering devices installed in customer…
On December 14, 2017, the National Labor Relations Board (the “NLRB” or the “Board”) overruled Obama-era precedent involving two highly controversial decisions governing employee handbooks and joint employment standards. Earlier this year, President Trump appointed two Republicans to the five-member NLRB resulting in a 3-2 Republican majority for the first time in a decade.  As anticipated, the new “Trump Board” is beginning to dismantle a series of decisions that many believed to unfairly favor unions.…
The NLRB today announced it is requesting Information from interested parties regarding whether or not the 2014 Election Rules should be retained in any fashion or at all.  No doubt this is a heads up that these rules are going to have a short life span with the Agency.  This will be a very public battle and further information regarding the Board’s actions will be made available as they develop.…