Labor Relations Update

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NLRB Issues “Epic” Decision Concerning the Intersection of Mandatory Arbitration Agreements and NLRA Section 7 Rights

By Mark Theodore, Michael Lebowich, Steven Porzio, Joshua Fox & Laura Franks on August 16, 2019

On August 14, 2019, the NLRB issued its first decision addressing employer conduct related to mandatory arbitration agreements and Section 7 activity since the Supreme Court decided Epic Systems Corp v. Lewis, 584 U.S. __, 138 S.Ct. 1612 (2018). In Epic Systems (discussed more fully here), the Supreme Court held that agreements between employers and employees which include mandatory arbitration clauses and waivers of class and collective action rights do not violate the NLRA,…

Labor Relations Update

NLRB Announces Three Proposed Rulemaking Amendments Aimed at Overhauling Union Election Procedures – With More to Come!

By Mark Theodore, Joshua Fox & Meika Freeman on August 13, 2019

The National Labor Relations Board published a Notice of Proposed Rulemaking (“NPRM”) on Monday, August 12, 2019, proposing three amendments to its current rules and regulations aimed at addressing representation election procedures – with potentially more to come. The NLRB made sweeping changes to the election procedures through rulemaking in 2014, which have been criticized as shortening the time between the filing of a petition and the election and thus not allowing ample time…

Labor Relations Update

NLRB Finds Employer Lawfully Terminated “Known” Union Supporter Despite Finding Its Justification Was Pretextual

By Steven Porzio & Laura Franks on August 10, 2019

In a 2-1 decision issued on August 2, 2019, the National Labor Relations Board (the “Board”) in Electrolux Home Products, Inc., 368 NLRB No. 34 (2019) reversed an Administrative Law Judge’s (“ALJ”) decision, and held that Electrolux’s discharge of a “known” union supporter employee did not violate the National Labor Relations Act (“NLRA” or “Act”), notwithstanding the Board finding that Electrolux’s stated justification for the discharge was pretextual. Background The discharged employee at issue in…

Labor Relations Update

Employer’s Discipline of Employees Engaging In “Intermittent Strikes” Lawful: NLRB Majority

By Mark Theodore, Joshua Fox & Jacob L. Hirsch on July 30, 2019

This summer has been punctuated by walkouts. We have seen walkouts in support of a $15 minimum wage and walkouts to protest the sale of goods to the government. Walking off the job is, of course, a staple of labor action, and generally speaking, employees are protected by the NLRA when the walkout is over wages, hours or other terms of employment. The employer may not lawfully discipline or discharge an employee engaged in…

Labor Relations Update

Recent ALJ Decision Provides Important Nuance Regarding Workplace No Recording Rules

By Steven Porzio on July 17, 2019

In late 2017, the NLRB in Boeing Company, 365 NLRB No. 154 (2017), established a new three category system for classifying various employer policies. The new system was designed to balance a “work rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline and productivity in their workplace.” This balancing analyzes each policy on a case-by-case basis. In Boeing, the NLRB determined…

Labor Relations Update

Independence Day Comes Early For Employees Seeking To Shed Union Representation

By Mark Theodore & Joshua Fox on July 5, 2019

On the eve of Independence Day, the NLRB, in a 3-1 decision (Member McFerran dissented), clarified the law concerning withdrawal and enunciated a new framework for determining whether a union has retained majority support at the conclusion of a contract term. In Johnson Controls, Inc., 368 NLRB No. 20 (2019), the Board significantly streamlined the process for employees seeking to claim their own independence from their collective bargaining representative at the conclusion of the contract’s…

Labor Relations Update

Employers No Longer Have To Allow Union Representatives Use of Public Areas, NLRB Majority Rules

By Mark Theodore on June 17, 2019

Citing judicial criticism, as well as the original Supreme Court decisions on the issue, the NLRB swept away years of precedent permitting union representatives to access public areas of an employer’s premises. In UPMC Presbyterian Shadyside, 368 NLRB No. 2 (June 14, 2019), the NLRB was confronted with the findings that an employer committed unfair labor practices when it ejected two union representatives from a cafeteria that was open to the public. Common Occurrence…

Labor Relations Update

Employer’s Grant of Extra Holiday to All Employees Except Those Represented by Union Not Unlawful, NLRB Rules

By Mark Theodore on June 3, 2019

Employers with union-represented employees also always have non-union employees, whether working in the office or at another worksite. Invariably, there are differences between the wages, benefits, and terms and conditions of employment of the two groups, a natural consequence of the bargaining process. A common situation arises when an employer makes changes in the workplace, whether it is a change to a payroll practice or offering new benefits. The question is whether the change applies to the union-represented workforce. …

Labor Relations Update

Using a Cat to Chase the Inflatable Rat: NLRB General Counsel Urged Reconsideration of Board Precedent Regarding Banners and Signal Picketing of Neutral Employers

By Michael Lebowich & Joshua Fox on May 17, 2019

Continuing its efforts to overturn precedent, the NLRB General Counsel’s Division of Advice has issued a new advice memorandum looking to strike at the most recognizable sign of unionism in urban areas today – – the inflatable rat that is used to signal a labor dispute to the public. It has been long held by the Supreme Court that while handbilling at a neutral employer’s business is lawful, picketing urging a boycott of the neutral…

Labor Relations Update

Employer’s Campaign Prediction That Employees Would Have To Join Union And Pay Dues As Condition Of Employment Not Coercive, NLRB Majority Rules

By Mark Theodore on May 16, 2019

The NLRB currently is churning out cases and Advice Memoranda at a fairly regular pace. We recently discussed NLRB decisions addressing information requests, handbook statements, and confidential informants. An interesting area of NLRB case law concerns campaign statements,–statements made by employer representatives during an organizing campaign. When there is an allegation of wrongdoing, the Board evaluates such employer statements on two levels: whether they are unlawful (in which case they constitute an unfair labor…

Labor Relations Update

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NLRB Issues “Epic” Decision Concerning the Intersection of Mandatory Arbitration Agreements and NLRA Section 7 Rights

NLRB Announces Three Proposed Rulemaking Amendments Aimed at Overhauling Union Election Procedures – With More to Come!

NLRB Finds Employer Lawfully Terminated “Known” Union Supporter Despite Finding Its Justification Was Pretextual

Employer’s Discipline of Employees Engaging In “Intermittent Strikes” Lawful: NLRB Majority

Recent ALJ Decision Provides Important Nuance Regarding Workplace No Recording Rules

Independence Day Comes Early For Employees Seeking To Shed Union Representation

Employers No Longer Have To Allow Union Representatives Use of Public Areas, NLRB Majority Rules

Employer’s Grant of Extra Holiday to All Employees Except Those Represented by Union Not Unlawful, NLRB Rules

Using a Cat to Chase the Inflatable Rat: NLRB General Counsel Urged Reconsideration of Board Precedent Regarding Banners and Signal Picketing of Neutral Employers

Employer’s Campaign Prediction That Employees Would Have To Join Union And Pay Dues As Condition Of Employment Not Coercive, NLRB Majority Rules

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