Labor Relations Update

Latest from Labor Relations Update

November 14, 2019

The National Labor Relations Board recently held that a group of employees who were advocating on behalf of unpaid interns were not engaged in protected activity because the interns were not “employees” as that term is defined in Section 2(3) of the National Labor Relations Act. In so doing, the Board reaffirmed its longstanding precedent that individuals who do not receive or anticipate economic compensation are not statutory employees. The Board also rejected the application…

Labor Relations Update

No, Unions Do Not Have A Free Speech Right To Engage In Unlawful Secondary Boycott Activity, Federal Appeals Court Rules

By Mark Theodore, Joshua Fox & Annabel Pollioni

October 30, 2019

On October 28, 2019, the Ninth Circuit, following in the footsteps of the D.C. Circuit and the Second Circuit, affirmed an order entered by the NLRB confirming that prohibitions on secondary boycotts under Section 8(b)(4)(i)(B) of the NLRA do not violate the First Amendment of the United States Constitution. Nat’l Labor Relations Bd. v. Int’l Ass’n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, No. 17-73210, 2019 WL 5539505 (9th Cir. Oct. …

Labor Relations Update

NLRB Continues to Aid Workers in Ousting Unions

By Mark Theodore & Annabel Pollioni

October 25, 2019

The NLRB recently reiterated its position that the agency should not be so quick to dismiss petitions filed by employees seeking to decertify a union. The Board, in a 3-1 decision, held that if a petition for decertification is properly filed prior to the employer entering into an agreement settling unfair labor practice charges in which the parties agreed to extend the bargaining period, the petition for decertification may go forward. See Pinnacle Foods Group, …

Labor Relations Update

Moment of Clarity? NLRB Upholds Info-Sharing and Media Contact Rules, Clarifies Boeing Standard Applicable to Employer Handbook Policies

By Mark Theodore, Joshua Fox & Austin McLeod

October 14, 2019

The NLRB continues to issue decisions on a variety of interesting issues. On October 10, the Board held, in LA Specialty Produce Co., 368 NLRB No. 93 (Oct. 10, 2019), that an employer’s strong confidentiality protections and limited media availability rules were lawful, and in so doing, clarified the analysis under the newly-issued Boeing standard, which we previously outlined here. The Majority’s Clarifications of Boeing In Boeing Company, 365 NLRB No. 154 (2017), the…

Labor Relations Update

NLRB Proposes Rule to Settle Once and For All: Student Teaching and Research Assistants Are Not “Employees”

By Paul Salvatore, Steven Porzio & Laura Franks

September 20, 2019

As anticipated, today the National Labor Relations Board published a Notice of Proposed Rulemaking (“NPRM”) proposing a regulation which would establish that students at private colleges and universities who perform any services related to their studies for compensation, including teaching and research, are not “employees” within the meaning of Section 2(3) of the National Labor Relations Act. The proposed rule would bring certainty to the student employee-status issue, which the Board oscillated on three times…

Labor Relations Update

NLRB Tips Scales in Favor of Employers When Drawing Distinctions Between Claims of “Inability to Pay” Versus “Competitive Disadvantage,” and “Surface” Versus “Hard” Bargaining

By Steven Porzio & Laura Franks

September 18, 2019

In recent weeks, the National Labor Relations Board has issued several employer-friendly decisions, and its September 13 decision in Arlington Metals Corp., 368 NLRB No. 74 (2019) was no exception. In Arlington Metals, the Board considered: (1) whether an employer’s statements during bargaining in response to a union’s economic proposals amounted to an asserted “inability to pay,” which would trigger an obligation to provide the union with access to the company’s financial information; (2) whether…

Labor Relations Update

NLRB Puts a Finer Point on Its Community of Interest Test with a New Three-Step Analysis

By Michael Lebowich & Laura Franks

September 12, 2019

Still hard at work as we head into mid-September, the National Labor Relations Board, in a 3-1 decision (Chairman Ring and Members Kaplan and Emanuel in the majority, Member McFerran dissenting) announced a three-step test which clarifies how petitioned-for partial workforce units are analyzed under the traditional community of interest factors. In 2017, the Board in PCC Structurals, Inc., 365 NLRB No. 160 (2017) rejected the Obama-era Board’s “micro-unit” concept (overruling Specialty Healthcare, 357 NLRB…

Labor Relations Update

NLRB Dumps Longstanding “Clear and Unmistakable Waiver” Standard for More Employer-Friendly “Contract Coverage” Test

By Mark Theodore & Joshua Fox

September 11, 2019

As we near the end of the agency’s fiscal year on September 30, the NLRB is churning out many significant decisions. On September 10, the Board issued a sweeping decision concerning an issue that has divided the NLRB and D.C. Circuit Court of Appeals (as well as the First and Seventh Circuits, and partially, the Second Circuit) for years. A 3-1 majority of the Board (Chairman Ring and Members Kaplan and Emanuel, with Member McFerran…

Labor Relations Update

Board Affirms Right to Unilaterally Implement Changes to Benefit Plans Based on Waiver, Foreshadowing Potentially Looser Standard for Contractual Waivers

By Peter D. Conrad & Joshua Fox

September 10, 2019

The NLRB continues to churn out decisions post-Labor Day. On September 4, in a 2-1 decision, (Chairman Ring and Member Kaplan, with Member McFerran dissenting), the NLRB found that E.I. DuPont De Nemours did not violate the NLRA by unilaterally implementing changes to its company-wide retiree medical and dental plans based on the unions’ waiver of the right to bargain over such changes. Although not reversing precedent, the Board signaled its inclination to reconsider…

Labor Relations Update

National Labor Relations Board: Labor Day Roundup

By Mark Theodore, Joshua Fox & Jacob P. Tucker

September 3, 2019

While much of the country spent the last week of summer enjoying the last few days of sun, the National Labor Relations Board spent the week before its eponymous three-day weekend churning out a couple of important decisions. A brief round-up of the Board’s recent activity in areas related to the intersection of Section 7 rights and independent contractors or non-employees, including related to leafletting and misclassification issues, is discussed below. Employers Can Legally Prohibit…

Labor Relations Update

Blog Authors

Unpaid Interns are Not Statutory Employees, NLRB Concludes

No, Unions Do Not Have A Free Speech Right To Engage In Unlawful Secondary Boycott Activity, Federal Appeals Court Rules

NLRB Continues to Aid Workers in Ousting Unions

Moment of Clarity? NLRB Upholds Info-Sharing and Media Contact Rules, Clarifies Boeing Standard Applicable to Employer Handbook Policies

NLRB Proposes Rule to Settle Once and For All: Student Teaching and Research Assistants Are Not “Employees”

NLRB Tips Scales in Favor of Employers When Drawing Distinctions Between Claims of “Inability to Pay” Versus “Competitive Disadvantage,” and “Surface” Versus “Hard” Bargaining

NLRB Puts a Finer Point on Its Community of Interest Test with a New Three-Step Analysis

NLRB Dumps Longstanding “Clear and Unmistakable Waiver” Standard for More Employer-Friendly “Contract Coverage” Test

Board Affirms Right to Unilaterally Implement Changes to Benefit Plans Based on Waiver, Foreshadowing Potentially Looser Standard for Contractual Waivers

National Labor Relations Board: Labor Day Roundup

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