NLRB Announces Proposed Rule Changing Joint-Employer Standard
Latest from Labor Relations Update
NLRB Rejects “Constructive Denial of Transfer” and “Threat” Theories of Unfair Labor Practice Liability
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…
Concluding the 2016 Persuader Rule Changes “Exceeded Authority” of the LMRDA, DOL Rescinds Them
The Department of Labor fully rescinded the 2016 changes made to the Persuader Rules.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…
Arbitration Class Waivers, Past Practice (not established) and Skirmishing Over Information Requests All Part of Recent NLRB Action
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…
You’ve Got Mail: NLRB Requests Briefing on Standard for Employee Use of Employer Owned Electronic Communication Systems
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…
Employee’s Failed Attempt To Secure Union Representation Sufficient Notice of Weingarten Request, Divided NLRB Rules
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…
NLRB General Counsel Issues Handbook on Handbook Rules
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…
NLRB Considers Rulemaking to Address Hotly-Contested Joint-Employer Standard
Thorough Employer Investigation Helps Establish Employer’s “Honest Belief” of Employees’ Picket Line Misconduct
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…
Gridlock Broken: Senate Confirms John Ring as Newest Member of NLRB
By a vote of 50 to 48 the U.S. Senate confirmed Republican John Ring as a Member of the National Labor Relations Board, giving the agency a full five member complement. Member Ring, whose term expires December 16, 2022, takes the seat previously held by Chairman Miscimarra.
The addition of Member Ring means, of course, that the Board now consists of a 3-2 majority favoring employers and can issue decisions changing current case law, something…