Labor Relations Update

NLRB Restores Precedent, Gives Employers Freedom to Unilaterally Discipline Union Employees Between Certification and First Contract

By Peter D. Conrad, Joshua Fox & Dominique Kilmartin

June 25, 2020

The National Labor Relations Board continues to overrule Obama-Board precedent at a rapid pace. (See our prior blog posts here, here and here for a few recent examples.) On June 23, 2020, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the Board overturned Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016), which had required employers to provide notice and an opportunity…

Labor Relations Update

NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements

By Mark Theodore, Joshua Fox & Jacob L. Hirsch

June 23, 2020

In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality provision that arguably restricted an employee participating in the arbitration process from disclosing terms and conditions of employment violates the NLRA. The Board held, in California Commerce Club, Inc., 369 N.L.R.B. No. 106 (2020), that a narrowly-tailored confidentiality provision in an arbitration agreement prohibiting…

Labor Relations Update

NLRB GC Issues Guidance Memo Laying Out Changes to Evidence Collection in Unfair Labor Practice Investigations

By Steven Porzio, Joshua Fox & Dominique Kilmartin

June 19, 2020

NLRB General Counsel Peter Robb issued a Memorandum on June 17th setting forth new guidelines for how Regions conduct unfair labor practice investigations—specifically, how Regions secure the testimony of former supervisors and agents, as well as how to handle audio recordings. The stated goal of the Memo is to “promote transparency and apply fairness” during the investigatory process. Testimony of Former Supervisors and Agents and Fact Witnesses during ULP Investigations First, Regions are instructed to…

Labor Relations Update

NLRB Establishes Bright-Line Test Denying Jurisdiction over Religious Educational Institutions

By Mark Theodore, Joshua Fox & Eric Novak

June 11, 2020

We have seen this movie before. NLRB precedent established by the Board under the prior Administration conflicted sharply with decisions by the D.C. Circuit reviewing the Board. Then the current iteration of the Board reverses its own precedent and sides with the D.C. Circuit. This situation occurred recently with regard to whether the “clear and unmistakable waiver” standard or “contract coverage” test should apply to unilateral change cases. We actually foreshadowed this very scenario in…

Labor Relations Update

Union’s Efforts to Scare Employees From Participating in Employer Investigations Rebuked by the Board

By Mark Theodore, Joshua Fox & Austin McLeod

June 9, 2020

On June 5, 2020, the NLRB held, in Teamsters Local Union No. 735-S (Bemis Co., Inc.), 369 NLRB No. 97, that union officials’ retaliatory actions against members who participated in an investigation resulting in the discharge of the union president violated the NLRA’s prohibitions against union restraint or coercion (Section 8(b)(1)(A)) and causing employer discrimination (Section 8(b)(2)). Factual Background and ALJ Decision The employer manufactures bread bags and its production, maintenance and warehouse employees…

Labor Relations Update

NLRB Redefines “Solicitation,” Broadening Conduct that may be Considered Unprotected

By Mark Theodore & Eric Novak

June 3, 2020

On May 29, 2020, the NLRB issued an important opinion overruling two decisions in order to define the term “solicitation” in a manner consistent with prior Board decisions and the dictionary definition of the term. Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020). In defining “solicitation,” the Board held that “where an employee makes statements to a coworker during working time that are intended and understood as an effort to persuade the employee…

Labor Relations Update

Update: Despite Order Striking Down Portions of NLRB Rulemaking on Representation Election Procedures, NLRB Implements Rules Unaffected by Order

By Steven Porzio, Joshua Fox, Heylee Bernstein & Austin McLeod

June 2, 2020

On Sunday, we reported on an eleventh-hour district court order striking down large portions of the NLRB’s new representation election rules that were set to go into effect on May 31, 2020. The district court order held certain portions of the rule were unlawful because they failed to follow proper notice-and-comment rulemaking as required for substantive rules. The order remanded the entire set of rules to the NLRB to reconsider in light of the order.…

Labor Relations Update

Breaking: Federal Court Strikes Down New NLRB Rules on Representation Election Procedures; Implementation Delayed and Status of the Rules Uncertain

By Michael Lebowich, Joshua Fox & Heylee Bernstein

May 31, 2020

After an initial COVID-19 related delay, the sweeping new NLRB representation election rules that reversed the Obama-era “quickie” election process were about to go into effect on May 31, 2020. However, an eleventh-hour district court order struck down a significant portion of the rule as unlawfully implemented for failing to follow proper administrative procedure, casting doubt on when, if at all, the new rules will apply. Details of the planned changes are outlined in our…

Labor Relations Update

NLRB: Policy Prohibiting Personal Cell Phones in Work Areas Due to Safety Concerns May Be Lawful under Boeing

By Mark Theodore, Joshua Fox & Elizabeth Dailey

May 30, 2020

As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases. The Board has struggled for years with the concept that certain commonsense employer business policies can be unlawful. It is difficult to draw bright-line rules from such decisions due to the varied workplaces – even more so now during the COVID-19 pandemic, where workplaces…

Labor Relations Update

“Hard” Bargaining Proposals Placed Into Final Offer Evidence Bad Faith Bargaining, NLRB Concludes

By Mark Theodore & Heylee Bernstein

May 28, 2020

On May 21, 2020, the NLRB issued a decision in Altura Communication Solutions, LLC. The case asked the Board to consider whether a series of broad proposals made by the employer during collective bargaining amounted to bad faith bargaining and 8(a)(1) and 8(a)(5) violations. The Board noted that while it is not its role to decide whether proposals are acceptable, it will examine proposals to determine whether they are designed to frustrate the parties’ goal…

Labor Relations Update

Blog Authors

NLRB Restores Precedent, Gives Employers Freedom to Unilaterally Discipline Union Employees Between Certification and First Contract

NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements

NLRB GC Issues Guidance Memo Laying Out Changes to Evidence Collection in Unfair Labor Practice Investigations

NLRB Establishes Bright-Line Test Denying Jurisdiction over Religious Educational Institutions

Union’s Efforts to Scare Employees From Participating in Employer Investigations Rebuked by the Board

NLRB Redefines “Solicitation,” Broadening Conduct that may be Considered Unprotected

Update: Despite Order Striking Down Portions of NLRB Rulemaking on Representation Election Procedures, NLRB Implements Rules Unaffected by Order

Breaking: Federal Court Strikes Down New NLRB Rules on Representation Election Procedures; Implementation Delayed and Status of the Rules Uncertain

NLRB: Policy Prohibiting Personal Cell Phones in Work Areas Due to Safety Concerns May Be Lawful under Boeing

“Hard” Bargaining Proposals Placed Into Final Offer Evidence Bad Faith Bargaining, NLRB Concludes

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