Scabby the Rat is a familiar sight in disputes between unions and employers. Scabby, a giant inflatable rat with red eyes, fangs, and claws, is often placed outside the places of business of employers with whom a union has a labor dispute (the “primary” employer).  Recently, the NLRB again addressed the issue of whether such union protests can be directed against a “secondary” neutral employer who does business with the primary employer but who is not party to the underlying labor dispute.
Continue Reading Scabby the Rat, Coming to a Business Near You? It’s Possible.

On June 1, 2021, the U.S. Court of Appeals for the D.C. Circuit overturned a NLRB determination that a manager’s incorrect blaming of a union for discrepancies in an employee’s paid-leave time constituted an unfair labor practice. The pivotal issue was whether the manager’s statements had a reasonable tendency to interfere with employees’ labor rights. As discussed below, the D.C. Circuit rejected the NLRB’s determination that the manager’s statements had a reasonable tendency to interfere with employees’ labor rights, reasoning that the manager’s misstatements were lawful expressions of the employer’s opinions.
Continue Reading D.C. Circuit Clarifies Boundaries of Protected Employer Expressions

During the 2020 legislative session, Virginia passed several important employment bills. Perhaps none is more consequential than H.B. 582. Effective as of May 21, 2021, it permits the governing bodies of Virginia cities, towns, counties, and school boards to adopt a local resolution or ordinance authorizing collective bargaining and recognizing labor unions.
Continue Reading Are You Ready? Preparing for the New Frontier of Public Bargaining in Virginia

In Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019),  the NLRB adopted a new framework for determining a union’s representative status once an employer has made a lawful anticipatory withdrawal of recognition based on disaffection evidence that the union has lost its majority status. Specifically, under Johnson Controls, a union seeking to demonstrate that it has reacquired majority status must do so in a secret ballot election conducted by the Board, rather than in an unfair labor practice proceeding. 
Continue Reading NLRB Adopts New Framework in Cases of Employer Withdrawal of Union Recognition

The Board’s recent decision in Merck, Sharp, & Dohme Corp., 367 NLRB No. 122 (May 7, 2019)  highlights the differences that can arise as a result of the collective bargaining process in the terms and conditions of employment for employers with a divided workforce of non-union and union-represented employees.  In Merck, the Board majority reversed the Administrative Law Judge’s ruling that the employer had violated Section 8(a)(3) and (1) by offering a new, one-time paid holiday, “Appreciation Day” to all of its non-union employees to the exclusion of its union-represented employees. 
Continue Reading NLRB Rules That Employer’s Exclusion of Union Employees From Paid Holiday Granted to Non-Union Employees is Lawful

As we reported last December, the NLRB, in The Boeing Company, 365 NLRB No. 154 (2017), reversed its workplace rule standard under Lutheran Heritage. On June 6, 2018, NLRB General Counsel Peter Robb issued a guidance memorandum which sheds additional light on the Board’s new balancing test and three-category approach.
Continue Reading NLRB Issues Guidance Memorandum for Workplace Rules

We have reported on several Board decisions issued by a new Republican majority in the final days of 2017, but questions remain as to what issues the Board will address next to scale back on Obama-era precedent.  In recent weeks, Republican Board Members have provided some hints in a pair of footnotes in two unpublished decisions.  
Continue Reading NLRB Members Drop Hints in Footnotes Regarding Potential Issues the Board will Revisit

It’s been a little over a year since the Real Estate Board of New York filed its opposition in New York’s Supreme Court to the City of New York’s Local Law 50, which prohibits owners of large Manhattan hotels from converting rooms to residential condominium units. Despite REBNY’s complaint being dismissed due to lack of standing to sue, the industry group isn’t backing down and filed a notice of appeal on Sept. 26. The moratorium is set to expire in eight months, but there is a strong suspicion that it will be extended.
Continue Reading Condon’t! New York Hotels Remain Forbidden From Offering Units as Condos

Yesterday, a federal court issued a preliminary injunction temporarily preventing the DOL from implementing and enforcing its recent Persuader Rule pertaining to outside consultants’ (including lawyers) reporting obligations in the labor relations context.
Continue Reading DOL’s Controversial Persuader Rule Preliminarily Enjoined

In Purple Communications, Inc., a divided National Labor Relations Board held that employees have the right to use their employers’ email systems for statutorily protected communications, including self-organization and other terms and conditions of employment, during non-working time.
Continue Reading NLRB Reverses Register Guard; Grants Workers Right To Use Employer Email System For Section 7 Purposes