Labor Relations Update

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By: Proskauer Rose LLP

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Latest from Labor Relations Update

The NLRB  has been in a period of dormancy.  When the make-up of the Board changed, a lot of people expected an onslaught of NLRB decisions reversing the reversals of precedent made by the agency in the last 8 years.  Except for a couple of brief periods, most notably in December when then-Chairman Miscimarra departed, there has been less activity than many thought would occur.  This is in part because there is uncertainty over…
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The National Labor Relations Board announced that it will publish a Notice of Proposed Rulemaking today, September 14, regarding its joint-employer standard. The proposed rule will state that an employer may be considered a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment in a manner that is not limited and routine.  Indirect influence and contractual reservations of authority will…
As we hurtle toward Labor Day, and the probable onslaught of decisions, and as NLRB Member Pearce’s tenure ends on August 27, the Board has been issuing a steady stream of cases.  Many of these appear to be garden variety type cases, with a smattering of cases now dismissing the theory of a class action waiver violation and some defaults. Recently, the Board issued a pretty interesting case concerning an alleged threat to an employee, as…
The Department of Labor fully rescinded the 2016 changes made to the Persuader Rules.  The DOL concluded that the 2016 rule changes “exceeded the authority of the Labor-Management Reporting and Disclosure Act (LMRDA)” because they “impinged on attorney-client privilege.  The action rescinding the rule was announced in a July 17, 2018 News Release .  In announcing the change back to the prior rule, Deputy Assistant Secretary Nathan Mehrens remarked, “By rescinding this Rule, the Department stands up for…
Since December 2017, when the Board issued a number of decisions which restored precedent that had been changed in the last few years, (discussed here, here, here, and here), not much of note has been happening at the Board.  Indeed, there was not a full complement at the Board until April when Chairman Ring was confirmed. Two upcoming events may see some additional activity at the NLRB.  First, Board Member Pearce’s term expires in a few…
In what could signify the beginning of the end for Purple Communications, Inc., 361 NLRB 1050 (2014) and guaranteed employee access to Employer computer systems for union organizing purposes, the NLRB issued a notice on August 1 inviting the filing of briefs on whether the Board should uphold, modify or overrule the decision.  Under Purple Communications (which we previously covered here), employees have a presumptive right to use their employer’s e-mail system to engage…
One area of labor relations that continues to vex practitioners is the scope of the so-called Weingarten rights.  NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975).  Some 43 years after the Supreme Court set forth the right that represented employees are entitled to union representation when facing an interview that could lead to discipline, there still exist areas that are vaguely defined.  For instance, we saw that an employer’s search of an employee’s vehicle is…
Following up on the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), on June 6, NLRB General Counsel Peter Robb issued a new Guidance Memorandum (18-04) detailing how NLRB Regional Offices receiving claims of improper employment policies are to interpret employer workplace rules. As we reported this past December (here), in Boeing, the Board established a new (and much more employer-friendly) standard for the lawfulness of…
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As we previously reported here, here and here, the NLRB’s “joint employer” standard has vacillated over the last several years, and currently remains in flux.  For historical reference, the NLRB expanded the scope of joint-employment in 2015 in Browning-Ferris, 362 NLRB No. 186 (2015), and then reverted to a more rigorous showing that had been required for years in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017). Most recently, under…
The Board is now operating at a full complement and is issuing decisions on a fairly regular basis.  Nothing earth shattering in terms of law (which is kind of a relief) but there are some interesting issues worth discussing.  A frequent topic of discussion here is the often blurry line between what constitutes “protected” versus “unprotected” employee conduct and how difficult it can be to defend claims that a discipline or termination violated the Act.  See…