Almost overnight, COVID-19 has radically altered the American workplace.  Employers and employees alike have been forced to adapt to unique issues related to employee health, compensation, leave, and in unfortunate circumstances, furlough or lay-off.
Such change may be accompanied by grievances, concerns, and fears.  And in some instances, employees will desire to communicate those anxieties to the greater public at large. 
Continue Reading Navigating Employee Media Communications in the Age of COVID-19: A Recent NLRB Decision Provides Useful Guidance

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

In Country Wide Financial Corporation, 369 NLRB No. 12 (2020), the National Labor Relations Board ruled that an mandatory arbitration agreement violated the National Labor Relations Act because it restricted an employees’ ability to file and pursue unfair labor practice charges before the Board.
Continue Reading The NLRB Rules Mandatory Arbitration Agreement As Overbroad

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

A recent decision by the National Labor Relations Board is another in a string of decisions where the Trump-appointed Board has attempted to rebalance a property owner’s rights with the rights under Section 7 of the National Labor Relations Act of those individuals who work on the property. In Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019), the Board overruled its previous precedent and held that a property owner may prohibit Section 7 activity by off-duty employees of a licensee or contractor performing work on the property owner’s premises.

Continue Reading Labor Board Continues Trend of Protecting Property Rights

In Cordúa Restaurants, Inc., 368 NLRB No. 43 (2019), the National Labor Relations Board issued its first major decision following the Supreme Court’s 2018 ruling in Epic Systems, addressing a number of issues of first impression and providing guidance on the permissible scope and implementation of class action waivers.  
Continue Reading The NLRB Issues Major Class Action Waiver/Mandatory Arbitration Ruling

The National Labor Relations Board has issued the first part of its planned series of revisions to labor union election procedures.  The revisions arrive five years after the Obama-era Board’s controversial 2014 changes that created the so-called “ambush election” procedures.  
Continue Reading NLRB Issues First of Its Proposed Changes to Union Election Rules

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

Many workplace policies and employee handbooks contain restrictions on employees speaking to the media.  Through these policies, employers often seek to limit what organizational information is disclosed to third parties, and to exercise at least some control over statements that may be attributed to the company.  Such restrictions, though, may be found to violate employees’ rights under the National Labor Relations Act due to overbreadth when not drafted carefully.
Continue Reading Media Gag Policies May Violate the NLRA