On July 27, 2020 the NLRB issued a supplemental decision involving a labor law successor employer, which unilaterally implemented terms and conditions of employment prior to commencing operations. The question presented was whether and to what extent the successor could take further unilateral action, free of the duty to bargain with the union.
Continue Reading NLRB Clarifies Successor Employer’s Duty to Bargain Over New Employment Terms

Over the past 40 years, the National Labor Relations Board has grappled with the appropriate balance between an employer’s right to discipline an employee for abusive behavior and an employee’s right to engage in Section 7 activity. Much to the dismay of employers, this balancing act has historically tipped heavily in favor of protecting an employee’s right to engage in Section 7 activity at the expense of an employer’s right to discipline its employees for conduct such as using racial slurs while picketing, engaging in sexist behavior, or yelling obscenities at a supervisor while discussing wages.
Continue Reading NLRB Loosens Restrictions on Employee Discipline for Abusive Conduct and Speech

In mid-May the NLRB established a clear rule regarding stray marks on ballots in union representation elections, eradicating years of convoluted and inconsistent precedent. The decision, which applied retroactively, resulted in a union’s failure to amass a majority of the votes and, consequently, a reversal of the Regional Director’s Decision and Certification of Representation.
Continue Reading NLRB Provides Clarity and Consistency to Stray Marks on Ballots

Social distancing and uncertainty about COVID-19 have altered many aspects of daily life, uprooted traditions, and redefined “normal.” Unions are seizing this opportunity in a push for electronic representation elections.  On May 6, a coalition of fourteen unions urged Nancy Pelosi, Mitch McConnell, Kevin McCarthy, and Chuck Schumer to fund and direct the NLRB to establish a system and procedures to facilitate electronic union representation elections.
Continue Reading Electronic Union Representation Elections Are Looming

An employer’s duty to bargain may change during emergency situations, and the General Counsel for the National Labor Relations Board released a series of case summaries Friday to help employers navigate the exceptions. General Counsel Peter Robb summarized nine Board cases addressing both general public emergencies and emergencies particular to individual employers.  Robb did not make any declarations about how the COVID-19 outbreak and associated response might affect bargaining obligations, but the summarized cases provide good examples of bargaining exceptions that may or may not apply.
Continue Reading NLRB General Counsel Releases Emergency Bargaining Case Summaries

Employers with collective bargaining agreements and union relationships know they generally cannot make unilateral changes to terms and conditions of employment.  But in an unprecedented emergency like the coronavirus (COVID-19) outbreak we are all facing, union bargaining obligations may be relaxed, either based on the terms of a collective bargaining agreement, or under National Labor Relations Board law.  As employers are forced to make ever more difficult operational decisions in the face of this emerging threat, here are some issues unionized businesses should consider when contemplating major workplace changes.
Continue Reading Coronavirus and the NLRA – Unilateral Changes in Emergency Situations

The last few weeks of a National Labor Relations Board Member’s term can be a busy time.  This is especially true when a Member’s imminent departure will leave the Board without any Members from the minority political party.  The Board historically has avoided major shifts in precedent without the participation of both parties.  Last month was no different.  As the clock wound down on Democrat Lauren McFerran’s term this December, the Board issued a flurry of significant rules and opinions that pare back many of the most anti-employer precedents set during the Obama-era.
Continue Reading A December to Remember at the NLRB

Yesterday, the National Labor Relations Board published a final rule modifying its representation case procedures. The final rule takes effect April 17, 2020, and scales back—but does not completely undo—the changes to election regulations instituted by the Obama-era’s Board that have caused employers heartburn since 2015.
Continue Reading The NLRB Revises its Election Regulations to the Benefit of Employers