As we have previously reported, courts and the National Labor Relations Board (“NLRB”) have released a number of recent decisions favoring the enforceability of arbitration agreements in the employment context. It is now settled law that class-action waivers in arbitration agreements do not violate the National Labor Relations Act or infringe on employees’ Section 7 rights under the Act.  In a recent decision, the NLRB extended this holding to allow employers to implement arbitration programs—including those with class-action waivers—in direct response to litigation by its employees.


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On September 20, 2019, the NLRB issued a notice of proposed rulemaking to exclude undergraduate and graduate students who perform paid work for private colleges and universities in connection with their studies from the definition of employee under the National Labor Relations Act.  The proposed rule would prevent undergraduate and graduate teaching assistants from unionizing or collectively organizing.
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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.

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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. 
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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. 
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On May 13, 2019, in Outokumpo Stainless USA, LLC v. N.L.R.B., No. 17-15498 (11th Cir.), the Court of Appeals for the Eleventh Circuit enforced an NLRB order finding that stainless steel producer Outokumpo’s posting of a side letter along with a NLRB settlement notice “constituted non-compliance with the terms of the Settlement Agreement” and that “default judgment was thus proper under the plain terms to which the Company had previously agreed.” 
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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.
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