Unions

This Note provides an outline of document disclosure obligations from collective bargaining relationships set by the National Labor Relations Act (NLRA) and enforced by the National Labor Relations Board (NLRB). Labor law in the private sector is primarily governed by federal law including the NLRA and the Railway Labor Act (RLA), and this resource focuses on the NLRA. This Note includes references to NLRB precedent issued after January 4, 2012 by recess appointees to the NLRB. In Noel Canning v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the recess appointments to the NLRB were invalid, calling into question whether the NLRB's decisions since January 4, 2012 are enforceable. Despite the DC Circuit's holding, the NLRB continues to issue decisions by the recess appointees, seek enforcement of those decisions and rely on the recess appointees' decisions as governing law. PLC Labor & Employment will continue to monitor developments and update this resource to reflect applicable law.

This Practice Note outlines special obligations for private sector employers that discipline and discharge employees in a unionized workplace. These obligations flow from the National Labor Relations Act (NLRA) as enforced by the National Labor Relations Board (NLRB), and collective bargaining under the NLRA. Labor law in the private sector is primarily governed by federal law, including the NLRA and the Railway Labor Act (RLA), and this resource only covers the NLRA. This Note includes references to NLRB precedent issued after January 4, 2012 by recess appointees to the NLRB. In Noel Canning v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the recess appointments to the NLRB were invalid, calling into question whether any of the NLRB's decisions since January 4, 2012 are enforceable. Despite the DC Circuit's holding, the NLRB continues to issue decisions by the recess appointees, seek enforcement of those decisions and rely on the recess appointees' decisions as governing law (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). PLC Labor & Employment will continue to monitor developments and update this resource to reflect applicable law.

A Note describing employee rights and prohibited unfair labor practices under the National Labor Relations Act. Labor law is primarily governed by federal law, and this resource only covers federal law.

This Note provides an overview of labor arbitration procedings and the law surrounding labor arbitration for employers covered by the National Labor Relations Act (NLRA) as enforced by the National Labor Relations Board (NLRB). Labor law in the private sector is primarily governed by federal law including the NLRA and the Labor Management Relations Act (LMRA) and this resource only covers federal law.

A Note describing types of labor union organizing campaigns and how employers can respond to union campaigns, including permissible and impermissible conduct under the National Labor Relations Act (NLRA). Labor law is primarily governed by federal law and this resource only covers federal law.

A statement for employers to use to express their philosophy on employee relations and unions. This statement complies with Section 8(c) of the National Labor Relations Act (NLRA) and largely tracks published statements by the employer in Noah's New York Bagels, Inc. (324 N.L.R.B. 266 (1997)) that the National Labor Relations Board (NLRB) has approved as lawful Section 8(c) speech in General Counsel Guidance Memoranda. This Standard Document applies only to private workplaces. It is based on federal law. This Standard Document has integrated notes with important explanations and drafting tips.

Guidelines to educate and instruct supervisors how to respond in compliance with the National Labor Relations Act (NLRA) to union picketing at a company's premises or worksite. This Standard Document applies only to private workplaces but may be useful for public sector employers with private sector contractors, suppliers or tenants. State or local law may impose additional or different requirements, but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.

A letter informing neutral unions that represent a company's employees that the company has either set up a reserve gate system to effectively confine a union's picketing of that employer on the premises it owns or manages to designated areas, set a reserve time that the targeted employer will be at the premises or both.  This Standard Document applies only to private workplaces but may be useful for public sector employers with private sector contractors, suppliers or tenants. It is based on interpretations of the National Labor Relations Act (NLRA). State or local law may impose additional or different requirements, but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.

A letter informing a union that a company has either set up a reserve gate system to effectively confine a union's picketing of that employer on the premises it owns or manages to designated areas, set a reserve time that the targeted employer will be at the premises, or both.  This Standard Document applies only to private workplaces but may be useful for public sector employers with private sector contractors, suppliers or tenants. It is based on interpretations of the National Labor Relations Act. State or local law may impose additional or different requirements, but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.

A form to be signed by a unionized employee acknowledging receipt, review and understanding of the contents of an employee handbook. It should generally be included at the end of a handbook provided to a unionized workforce. This Standard Document applies only to private workplaces. It is based on federal law. State or local law may impose additional or different requirements but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.

A form acknowledging a unionized employee's receipt, review and understanding of a stand-alone employment policy. This Standard Document applies only to private workplaces. It is based on federal law. State or local law may impose additional or different requirements but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.

This Standard Clause can be included in a collective bargaining agreement (CBA) to set out an arbitration procedure for unions and employers to use to resolve disputes about application and interpretation of CBAs that could not be resolved in their grievance procedure. It is based on the National Labor Relations Act (NLRA), but may be used by private sector employers governed by another federal law or public sector employers. This Standard Clause has integrated drafting notes with important explanations and negotiating tips.

This Standard Clause can be included in a collective bargaining agreement (CBA) to specify when the terms of a CBA are effective and may specify the parties contractual obligations to provide notice of an intent to modify or terminate the CBA. It is based on the National Labor Relations Act (NLRA). This Standard Clause has integrated drafting notes with important explanations and negotiating tips.

This Standard Clause can be included in a collective bargaining agreement (CBA) to set out rights reserved to an employer unless limited by other terms of the CBA. It is based on the National Labor Relations Act (NLRA), but may be used by private sector employers governed by another federal law or public sector employers. This Standard Clause has integrated drafting notes with important explanations and negotiating tips.

This Standard Clause can be included in a collective bargaining agreement (CBA) to prohibit discrimination in employment opportunities under a CBA. It is based on the National Labor Relations Act (NLRA), but may be used by private sector employers governed by another federal law or public sector employers. This Standard Clause has integrated drafting notes with important explanations and negotiating tips.

This Standard Clause can be included in a collective bargaining agreement (CBA) to close bargaining for the term of the CBA in which it is included and deem all subjects not included in the CBA as raised and bargained to conclusion as if they were included in the CBA. It is based on the National Labor Relations Act (NLRA), but may be used by private sector employers governed by another federal law or public sector employers. This Standard Clause has integrated drafting notes with important explanations and negotiating tips.

This Standard Clause provides sample language to disclaim an intent by an employer to unilaterally supplant or amend employment terms or conditions that are set out in a union collective bargaining agreement (CBA) in violation of Section 8(a)(5) of the National Labor Relations Act (NLRA). It may be incorporated into a stand-alone employment policy or in an employment policy in an employee handbook that is applicable to unionized employees. This Standard Clause has an integrated drafting note with important explanations and drafting tips. For a similar disclaimer to be incorporated into an employee handbook, see Standard Clause, Employee Handbook Disclaimer for Unionized Employees Covered by a Collective Bargaining Agreement.

An analysis and companion flowchart outlining the processes used by the National Labor Relations Board (NLRB) to determine whether a union can represent workers in collective bargaining under the National Labor Relations Act (NLRA). Click here for the companion flowchart. The flowchart's text boxes contains links to appropriate sections of the analysis. 

A Checklist of issues for employers to consider when determining whether they may lawfully discipline or terminate a unionized or nonunionized employee for objectionable social media postings. Factors include whether the postings constitute protected concerted activity under the National Labor Relations Act (NLRA), as well as consideration of state laws protecting lawful off-duty conduct. The Checklist is jurisdiction-neutral. This Checklist references NLRB precedent issued after January 4, 2012 by recess appointees to the NLRB. In Noel Canning v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the recess appointments to the NLRB were invalid, calling into question whether any of the NLRB's decisions since January 4, 2012 are enforceable. Despite the DC Circuit's holding, the NLRB continues to issue decisions by the recess appointees, seek enforcement of those decisions and rely on the recess appointees' decisions as governing law (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). PLC Labor & Employment will continue to monitor developments and update this resource to reflect applicable law.

A Chart setting out the limits and discretionary standards of the National Labor Relations Board's (NLRB) jurisdiction over certain employers, labor disputes and employment practices, and workers. These limits and standards are set by the National Labor Relations Act (NLRA), federal regulations and federal court and NLRB precedent.

A Checklist to assist employers prepare for the National Labor Relations Board's (NLRB) amended regulations and procedures regarding union representation elections under the National Labor Relations Act (NLRA). This Checklist outlines proposed changes to the NLRB's union election process and steps for employers to prepare their organization's message to employees about unions and ensure that they can present appropriate issues for the NLRB's review. On May 14, 2012, the US District Court for the District of Columbia enjoined the NLRB from applying its new election amendments because of a lack of quorum for the five member panel (Board), which oversees the NLRB's union representation election process, when the Board voted on the amendments. This development does not prevent a full quorum of the Board from properly voting for and implementing the amendments (see Legal Update, NLRB Union Election Rule Held Invalid for Lack of Quorum). 

A Checklist to help employers prepare to arbitrate labor disputes typically under the terms of a collective bargaining agreement (CBA). This Checklist is primarily intended for employers covered by the National Labor Relations Act (NLRA), which covers most private sector employers. This Checklist may also be useful to non-covered employers.

This Chart sets out various routine subjects often raised in collective bargaining negotiations that the National Labor Relations Board (NLRB) and the US Supreme Court have assigned to three categories. Under the National Labor Relations Act (NLRA), the category to which a subject is assigned (mandatory, permissive or illegal) determines what position a party may take, and what obligations a party has, in bargaining about the subject.

A Checklist describing the process for a union becoming the exclusive bargaining representative for a group of employees. The resource outlines the timeline and procedures involved in the union representation process that employers should understand to best respond to union organizing efforts.

This Article discusses the US Court of Appeals for the District of Columbia Circuit's holding in National Association of Manufacturers v. NLRB that invalidated the National Labor Relations Board's (NLRB) rule requiring private employers to post notices explaining employees' rights under the National Labor Relations Act (NLRA).

Since the US Supreme Court's 2011 decision in AT&T Mobility LLC v. Concepcion, courts have taken a variety of approaches to enforcing employment arbitration agreements. This article analyzes the state of post-Concepcion case law in California and in other parts of the country.

On November 16, 2012, Practical Law Company, the National Labor Relations Board (NLRB) and Epstein Becker & Green, P.C. presented Employment Practices Facing NLRB Scrutiny, a 75-minute webinar on the latest NLRB initiatives and developments. NLRB Acting General Counsel Lafe E. Solomon and Steven M. Swirsky of Epstein Becker & Green, P.C. discussed class action waivers in employment arbitration agreements, at-will employment statements, maintaining confidentiality during internal investigations and prohibiting employees from posting reputation-damaging comments on social media. You can access the recorded webinar here (registration required to view recorded webinar). Click here to download the webinar slides.  

An Article summarizing employee's rights under the National Labor Relations Act (NLRA) and enforced by the National Labor Relations Board (NLRB), and identifying common personnel policies that often implicate those rights. This Article offers practical advice for implementing NLRA-compliant policies.

Multinational companies are increasingly finding that a failure to manage employment liability risks on a global basis can lead to losses ranging from court awards or penalties to diminishment of corporate and brand image. This step-by-step guide provides a template for establishing global employment best practice standards and policies.

The US Court of Appeals for the Third Circuit held in NLRB v. New Vista Nursing & Rehabilitation that President Obama's March 27, 2010 recess appoinment of National Labor Relations Board (NLRB) Member Craig Becker was invalid, and vacated a challenged NLRB decision for lacking a full, three-member panel of the NLRB when the decision was made.

In National Association of Manufacturers v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the National Labor Relations Board's (NLRB) rule requiring private employers to post a notice explaining employees' rights under the National Labor Relations Act (NLRA) was invalid.

The National Labor Relations Board (NLRB) found in Target Corp. that an employer's information security or confidentiality policy and its solicitation and distribution policy violated the National Labor Relations Act (NLRA) by being overbroad. It also held that the employer's parking lot policy requiring, for safety purposes, that employees report unknown loiterers to management was lawful.

In Design Technology Group LLC dba Bettie Page Clothing, the National Labor Relations Board (NLRB) found that employees' complaints about their supervisor on Facebook were protected concerted activity for which the employer unlawfully terminated the employees. The NLRB rejected a defense that the Facebook posts constituted entrapment.

In Norquay Construction, Inc., the National Labor Relations Board (NLRB) held that a construction company committed an unfair labor practice (ULP) under Section 8(a)(1) of the National Labor Relations Act (NLRA) when one of its managers inflicted physical harm on a non-employee union agent whom he was ejecting from the premises. The NLRB imposed tort-like remedies for the physical harm.

The National Labor Relations Board (NLRB) recently released guidance from last year regarding NLRB prosecutorial views about the lawfulness of discipline related to employee posts on social media.

In SDBC Holdings, Inc. v. NLRB, the US Court of Appeals for the Second Circuit held that SDBC Holdings, Inc. acted lawfully when it refused to provide a union representing some of its employees with a copy of the company's 2007 audited financial statement that the union sought during collective bargaining.

The US Court of Appeals for the Fifth Circuit in NLRB v. Arkema, Inc. denied the National Labor Relation Board's (NLRB) petition for enforcement of an order invalidating a decertification election on the grounds that an employee's pro-union threats were not protected by the NLRA and that an employer's mass employee letter prohibiting pro-union harassment could not reasonably be read to prohibit protected conduct.

The US Court of Appeals for the Second Circuit ruled in NLRB v. Special Touch Home Care Services, Inc. that striking health care employees, who failed to report to work at patients' homes after notifying the employer that they would report to work rather than participate in a strike for which their union provided notice, created a reasonably foreseeable risk of imminent danger. That risk excused the employer's failing to reinstate them immediately.

The National Labor Relations Board (NLRB) has released further guidance to employers regarding NLRB prosecutorial views about lawfulness of discipline related to employee posts on social media and employment policies that concern employees' use of social media.

In Brusco Tug and Barge, the National Labor Relations Board (NLRB) held that tugboat mates were not supervisors within the meaning of Section 2(11) of the National Labor Relations Act (NLRA) on the basis that they either assigned or responsibly directed other employees.

The US Court of Appeals for the District of Columbia Circuit ruled in Noel Canning v. NLRB that President Obama's January 4, 2012 recess appointments to the National Labor Relations Board (NLRB) were invalid, and vacated a challenged NLRB decision for lack of a three-member quorum.

In Rochester Gas & Elec. Corp. v. NLRB, the US Court of Appeals for the Second Circuit held that a provision of a collective bargaining agreement allowing an employer to make changes in its employee work practices and control the use of company property did not clearly and unmistakably allow that employer to avoid effects bargaining with the union or waive the union's right to bargain about the effects of discontinuing a policy of permitting employees to take company vehicles home at night.

Lafe E. Solomon, the Acting General Counsel of the National Labor Relations Board (NLRB), modified existing policy to allow NLRB settlements to include front pay, which is payment to an employee as compensation in lieu of reinstatement. The new policy eliminates the requirement that front pay settlement terms be set forth in non-NLRB side letters, which the NLRB can less easily enforce.

In Sabo, Inc., the National Labor Relations Board (NLRB) held that an employer unlawfully terminated an employee because she had a conversation with another employee about job security, which was protected concerted activity under the National Labor Relations Act (NLRA).

In Chicago Mathematics & Science Academy Charter School, Inc., the National Labor Relations Board (NLRB) held for the first time that a public charter school is an employer covered by the National Labor Relations Act (NLRA). The school falls within the jurisdiction of the NLRB primarily because it is not a political subdivision of state of Illinois.

In Latino Express, Inc., the National Labor Relations Board (NLRB) held that it will now require respondents that owe backpay to submit documentation to the Social Security Administration (SSA) so that an award is allocated to the year the income would have been earned and to reimburse backpay recipients for certain excess income taxes they may owe.

This Law Firm Publication by Ford & Harrison LLP discusses Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8, in which the California Supreme Court reversed a Court of Appeals decision and declared constitutional two state laws restricting the ability of employers to enjoin conduct on their property relating to a labor dispute.

In Supply Technologies, LLC, the National Labor Relations Board (NLRB) held that an employer's mandatory arbitration policy governing employment disputes for nonunion workers would be reasonably construed to interfere with employees' Section 7 rights in spite of a disclaimer allowing employees to bring and participate in government actions.

In Ashland Facility Operations v. NLRB, the US Court of Appeals for the Fourth Circuit joined the US Courts of Appeals for the Ninth and Eleventh Circuits in holding that the National Labor Relations Board (NLRB)'s test for invalidating election results as tainted by inflammatory appeals to racial prejudice does not apply when the appeals are made by a third party, rather than a party to the contested election.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the two bills signed by Michigan Governor Rick Snyder that give private and public sector employees the right to either join a union and pay dues or refrain from doing so. The laws prohibit any term or condition of employment that requires employees to join a union or pay union dues or fees, known as union security clauses, and make it illegal for anyone to use force, intimidation or unlawful threats to influence an employee's decision about joining a union. Although the laws will likely go into effect April 1, 2013, only collective bargaining agreements that expire or are amended after the effective date are prohibited from containing union security language. The laws cover all private and public sector employees except police, firefighters and other public safety employee groups.

An advice memorandum from the General Counsel's Office's of the National Labor Relations Board (NLRB) found that an employer with a union-represented workforce violated Section 8(a)(5) of the National Labor Relations Act (NLRA) by unilaterally enrolling in E-Verify.

In Erie Brush & Manufacturing Corp. v. NLRB, the US Court of Appeals for the District of Columbia Circuit overturned the National Labor Relations Board (NLRB)'s decision finding the employer had unlawfully refused to bargain with the union. The DC Circuit held the parties were at a lawful impasse over a critical issue, which relieved the employer's duty to bargain and did not taint the employee disaffection petition that the employer relied on when it withdrew recognition of the union.

Two advice memoranda from the General Counsel's Office of the National Labor Relations Board (NLRB) found that at-will employment policies did not violate the National Labor Relations Act (NLRA). In Rocha Transportation and Mimi's Café, the General Counsel's Office found that employees could not reasonably construe the at-will employment language to restrict their Section 7 rights.

In Finley Hospital, the National Labor Relations Board (NLRB) held an employer violated the National Labor Relations Act (NLRA) by unilaterally discontinuing pay raises after the collective bargaining agreement (CBA) providing them "for the duration" of the agreement ended and by failing to provide a reasonable accommodation for requested information that raised patient confidentiality concerns.

In Marriott International, Inc., the National Labor Relations Board (NLRB) held that the employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by maintaining four challenged workplace rules, namely an access rule and its revision prohibiting off-duty employee access to interior areas of the hotel or to hotel property without managerial approval and a use rule and its revision prohibiting employee use of various guest and resident owner facilities without managerial approval.

In General Die Casters, Inc., the National Labor Relations Board (NLRB) held that an employer committed unfair labor practices (ULPs) when, among other things, it circulated a memorandum restating the definition of destruction of company property in an employee handbook, unilaterally withheld of merit wage increases for unit employees and interrogated an employee regarding an unfair labor practice investigation under implied threat of retaliation and in the context of other unlawful practices.

In Lakeland Health Care Associates, LLC v. NLRB, the US Court of Appeals for the Eleventh Circuit overturned a decision by the National Labor Relations Board (NLRB) finding licensed practical nurses (LPNs) were not supervisors under the National Labor Relations Act (NLRA). The court held the NLRB's findings on the LPNs' supervisory status were not supported by substantial evidence.

In Massey Energy Co., the National Labor Relations Board (NLRB) found a parent company liable for a subsidiary's failure to hire its predecessor's union-represented employees and bargain collectively with their union both as a direct participant in the violation and under a "single employer" theory of liability, although the latter issue was not pled, tried before an NLRB administrative law judge (ALJ) or preserved in the appeal of the ALJ's decision.

The National Labor Relations Board (NLRB) held in Fresenius USA Manufacturing, Inc. that while an employer properly investigated the offensive statements an employee made in relation to a union decertification campaign, the employer violated the National Labor Relations Act (NLRA) by suspending and discharging the employee for making those statements.

In Embarq Corp., the National Labor Relations Board (NLRB) held that a management rights clause did not authorize Embarq to eliminate a work classification and discharge the employees in the classification. The union had not waived its right to bargain over the decision. Member Hayes dissented, stating, among other things, that the appropriate standard for determining whether the employer failed to bargain should be the "contract coverage" standard adopted by several Circuit Courts of Appeals, rather than the "clear and unmistakable waiver" standard relied on by the NLRB.

In Costco Wholesale Corp., the National Labor Relations Board (NLRB) held that Costco's electronic posting policy, which prohibits electronically posted statements that "damage the Company, defame any individual or damage any person's reputation," violates the National Labor Relations Act (NLRA) because it could deter employees from engaging in Section 7 protected communications critical of Costco. 

In Laborers District Council of Minnesota and North Dakota v. NLRB, the US Court of Appeals for the Eighth Circuit upheld a National Labor Relations Board (NLRB) ruling that a union unlawfully intended to compel a nonunion company to enter into a union contract when it refused to enter into a Section 8(f) collective bargaining agreement with one of the company's intended subcontractors.

On July 31, 2012, the National Labor Relations Board (NLRB) invited amicus briefs on the question of whether respondents found to have violated the National Labor Relations Act (NLRA) and owing backpay should be required to take certain steps to minimize the tax burden on recipients of backpay awards. The invitation to file briefs is contained in a decision in Latino Express, Inc.

This Law Firm Publication by Jackson Lewis LLP discusses the California Court of Appeal's decision in Nelsen v. Legacy Partners Residential, Inc., ruling that an employee must arbitrate her individual wage and hour claims against her employer where an arbitration agreement between the parties was not unconscionable or in violation of public policy. Notably, the court rejected the employee’s argument that the agreement was unenforceable because it violated federal public policy under the National Labor Relations Board's (NLRB) decision in D.R. Horton. The court found that the issues in D.R. Horton were outside the expertise of the NLRB, that the holding had been rejected by at least two other federal courts, and that there was no evidence that the plaintiff in Nelsen was covered by the National Labor Relations Act (NLRA).

The US Court of Appeals for the District of Columbia Circuit ruled in Chevron Mining, Inc. v. NLRB that a collective bargaining agreement (CBA) gave a union the right to engage in memorial period work stoppages for any purpose. The court enforced the National Labor Relations Board's (NLRB) decision and order holding that the employer, which reserved the right to amend employee bonus plan for employees, committed an unfair labor practice (ULP) in violation of the National Labor Relations Act (NLRA) by exercising that right in retaliation for the union's protected memorial period work stoppages.

On June 26, 2012, the National Labor Relations Board (NLRB) held in Mercy Health Partners that meeting directly with unionized employees to inform them of a decision to relocate, presenting them with three relocation options and attaching conditions of acceptance without seeking the approval of the union was unlawful direct dealing in violation of the National Labor Relations Act (NLRA). This decision distinguishes Capital Ford, in which unilateral employer announcements were held not to be direct dealing because they merely notified employees of predetermined courses of action.

In Tesco PLC, the National Labor Relations Board (NLRB) held an employer violated the National Labor Relations Act (NLRA) by requiring employees to distribute flyers to customers apologizing for prior union handbilling at the employer's store.

On June 26, 2012, the National Labor Relations Board (NLRB) issued a supplemental decision in Virginia Mason Hospital, holding that a union waived its right to bargain over a hospital's flu prevention policy when it agreed to a broad management rights clause. The NLRB held in its initial decision that the flu prevention policy was a mandatory issue of bargaining that the core-purpose exception could not be applied to excuse the employer's failure to bargain but remanded the case to an NLRB administrative law judge to consider the hospital's other defenses.  

The National Mediation Board (NMB) published a proposed rule clarifying that changes to its run-off election rules and extending the comment period to August 6, 2012. The new proposed rule clarifies a May 15, 2012, notice of proposed rulemaking to state that the NMB will hold run-off elections only when three or more options receive valid votes in the initial election.

The General Counsel of the National Labor Relations Board (NLRB) released a third report on employees' use of social media, focusing on employers' social media policies.

On May 15, 2012, the National Mediation Board (NMB) published a notice of proposed rulemaking to amend rules for handling union elections under the Railway Labor Act required by the FAA Modernization and Reform Act of 2012. Comments on the proposed rulemaking must be received before July 17, 2012.

The US District Court for the Northern District of California recently upheld an arbitration agreement containing a class action waiver, holding that AT&T Mobility LLC v. Concepcion, which articulates a strong federal policy of enforcing arbitration agreements, controls. The court distinguished D.R. Horton, Inc., finding the National Labor Relations Act (NLRA) does not bar enforcement of agreements to arbitrate non-NLRA claims on an individual basis.

On May 4, 2012, the Office of the General Counsel of the National Labor Relations Board (NLRB) issued a guidance memorandum explaining that, under the NLRB's recent decision in Flaum Appetizing Corp., employers may not reverify emploment status of employees who are reinstated.    

On April 26, 2012, the National Labor Relations Board (NLRB) issued a guidance on how regional offices are to implement new representation case procedures. The procedures take effect on April 30, 2012.

On April 17, 2012, the National Labor Relations Board (NLRB) announced that it was indefinitely postponing the effective date of its rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA) because of an injunction by the US Court of Appeals for the District of Columbia Circuit.

In Shelter Distribution, Inc. v. General Drivers, Warehousemen & Helpers Local Union No. 89, the US Court of Appeals for the Sixth Circuit held that it is not a violation of public policy for a union to indemnify an employer through a provision in a collective bargaining agreement (CBA) for contingent withdrawal liability under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) to a multiemployer pension plan covered under the Employee Retirement Income Security Act of 1974 (ERISA).

In National Association of Manufacturers v. NLRB, the US District Court for the District of Columbia held that the National Labor Relations Board (NLRB) did not exceed its authority under the National Labor Relations Act (NLRA) when it issued a rule that requires employers to post notices apprising employees of various rights under the NLRA. However, the court held that the NLRB exceeded its authority by including provisions in the rule that make a failure to post the notice an unfair labor practice (ULP) and by extending the statute of limitations indefinitely for filing ULP charges against employers that fail to post the notice.

On February 14, 2012, President Obama signed into law the FAA Modernization and Reform Act of 2012. This legislation includes measures amending the Railway Labor Act (RLA) to change the showing of interest requirements for triggering union elections in the railroad and airline industries and to increase oversight of the National Mediation Board's (NMB) operations and regulatory activity.

In NLRB v. Jackson Hospital Corp., the US Court of Appeals for the Sixth Circuit affirmed a National Labor Relations Board (NLRB) backpay and reinstatement award against an employer that committed various unfair labor practices (ULP) in violation of the National Labor Relations Act (NLRA). The NLRB awarded reinstatement and backpay for periods spanning more than nine years despite the former employee's intervening felony conviction, resignation from a subsequent employer and extended medical incapacitation that exceeded both statutorily required medical leave and the longest medical leave that the employer had historically granted to any of its employees.

In Beary Landscaping, Inc. v. Costigan, the United States Court of Appeals for the Seventh Circuit held that the Illinois Department of Labor (IDOL) did not violate the plaintiff contractors' due process rights by using a local collective bargaining agreement's (CBA) wage rates as a proxy for the prevailing wage rates when setting the minimum wage the plaintiffs must pay to employees working on publicly financed construction and demolition projects.

In LaVoice v. UBS Financial Services, Inc., the US District Court for the Southern District of New York granted a motion to compel arbitration of the plaintiff's Fair Labor Standards Act (FLSA) and state wage and hour claims despite a class and collective action waiver. The court found AT&T Mobility v. Concepcion, precluded LaVoice's argument that the FLSA creates an unwaivable right to collective actions. Notably, the court rejected the argument that D.R. Horton, Inc. supported a contrary reading of AT&T Mobility.

The National Labor Relations Board (NLRB) held in Domsey Trading Corp. that it was appropriate to hold a company's principal owner personally liable for backpay due where the owner had transferred money from the sale of a corporate asset to his personal account purportedly after the corporation ceased doing business. Member Hayes dissented.

The National Labor Relations Board (NLRB) held that a motion for a temporary restraining order (TRO) within an otherwise non-frivolous case can be the basis of unfair labor practice (ULP) charges for retaliatory litigation. In Milum Textile Services Co., a decision dated December 30, 2011, the NLRB found that Milum's filing and maintenance of the motion violated Section 8(a)(1) of the National Labor Relations Act (NLRA). In this decision, the NLRB continues to change its retaliatory lawsuit analysis.

In Flaum Appetizing Corp. the National Labor Relations Board (NLRB) determined that employers found to have discriminated against employees that engaged in concerted activity protected under the National Labor Relations Act (NLRA) must plead specifically and be prepared to offer evidence that a discriminatee is not authorized to work in the US, to challenge a back pay or reinstatement award under Hoffman Plastic Compounds, Inc. v. NLRB. In its decision dated December 30, 2011, the NLRB constructed procedural barriers for employers wishing to avail themselves of that Supreme Court precedent, which held that the NLRB is prohibited from awarding backpay to an undocumented worker who violates the Immigration Reform and Control Act (IRCA). The NLRB struck an employer's Hoffman-related affirmative defense in NLRB compliance proceedings and denied the employer an evidentiary hearing to confirm that discriminatees were not eligible for backpay based on their immigration status. Member Hayes dissented.

The National Labor Relations Board (NLRB) recently held that requiring employees, as a condition of employment, to sign an arbitration agreement prohibiting them from filing collective or class actions for employment-related claims violates the National Labor Relations Act (NLRA). In its January 3, 2012 decision in D.R. Horton, Inc., the NLRB also held that its decision does not conflict with the Federal Arbitration Act (FAA) and distinguished AT&T Mobility v. Concepcion.

In a decision dated December 30, 2011, the National Labor Relations Board (NLRB) decided in Omaha World-Herald that a union, under the terms of its collective bargaining agreement (CBA) with the company, waived its right to object to the employer's changes to its pension plan. Separately, the NLRB found that union had not waived its right to bargain over subsequent changes to the employer's 401(k) plan after the expiration of the CBA.

The National Labor Relations Board (NLRB) held that musicians are employees rather than independent contractors of a symphony orchestra. In its December 27, 2011 decision in Lancaster Symphony Orchestra, the NLRB found the musicians to be employees using the common law agency test, because the employer controlled all manner of performance and scheduling after the musicians agreed to play. Member Hayes dissented.

The National Labor Relations Board (NLRB) issued a final rule amending its Rules and Regulations and Statements of Procedures regarding union elections under the National Labor Relations Act (NLRA). These amendments take effect April 30, 2012.

The US Court of Appeals for the DC Circuit held that discretionary wage increases granted by the employer after the annual budget review were not terms and conditions of employment that must be maintained before bargaining with thetis employees' union. In Arc Bridges v. NLRB, the DC Circuit found that because budget evaluations were highly discretionary, the employer did not violate Section 8(a)(3) of the National Labor Relations Act (NLRA) by granting a discretionary bonus for employees during union negotiations.

The US Court of Appeals for the First Circuit ruled that a Providence, Rhode Island ordinance requiring hospitality employers to retain predecessor employees for 90 days was not preempted by the National Labor Relations Act (NLRA).

On November 30, 2011, the three member panel (Board) in charge of setting the National Labor Relations Board's (NLRB) election procedures under the National Labor Relations Act (NLRA) voted to advance portions of a controversial proposed rule to change those procedures. The Board majority plans to approve and publish a final rule incorporating these changes by the end of December 2011.

The National Labor Relations Board (NLRB) has announced that on November 30, 2011, the three member panel (Board) in charge of setting the NLRB's election procedures will vote on unspecified portions of a controversial proposed rule to change those procedures. It is expected that the Board majority will vote in favor of the changes and issue a final rule by the end of December 2011.

On November 4, 2011, in UPS Supply Chain Solutions, Inc., the National Labor Relations Board (NLRB) held that an employer violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA) by adopting a rule prohibiting union solicitation in working areas during working time, discharging an employee for an outburst following a anti-union company presentation and telling employees that it might lose customers that require a nonunion workforce, and in turn, need to eliminate jobs.

The Department of Defense, the General Services Administration and NASA issued a final rule barring reimbursement of government contractors for the cost of activities to persuade employees to exercise, or refrain from exercising, their rights to unionize or engage in collective bargaining.

On October 25, 2011, the Department of Labor (DOL) revised Form LM-30, reducing the categories of people who must file and the types of financial transactions and financial interests that union officers and employees must report. The Form LM-30 is used to determine whether there is a possible confict of interest between an individual's financial interests and that of the union and its members.

The National Labor Relations Board (NLRB) postponed the effective date of its final rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA).

In Specialty Hospital of Washington-Hadley, LLC, the National Labor Review Board (NLRB) held that a successor employer violated the National Labor Relations Act (NLRA) by failing to bargain with an incumbent union, even though the predecessor bargaining unit was inappropriate and the new unit proposed by the union after it disclaimed representing segments of the predecessor unit would also be inappropriate for the successor's acute health care facility.

The US District Court for the Northern District of New York enjoined New York from implementing and enforcing a law that prevents employers who receive funds from the state from using those funds to oppose unionization.

Employers' voluntary recognition of labor unions will bar election petitions by employees or rival unions for a reasonable period (six to twelve months from the parties' first collective bargaining session). In Lamons Gasket Co., the NLRB overruled its 2007 decision in Dana Corp., which allowed employees to decertify a voluntarily recognized union or elect a different union as its collective bargaining representative immediately after the voluntarily recognition.  

The National Labor Relations Board (NLRB) issued a final rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA).

In Carpenters Local 1827 (United Parcel Service), the NLRB held that unions did not engage in unlawful picketing and violate Section 8(b)(4)(ii)(B) of the National Labor Relations Act (NLRA) by displaying large, stationary banners at the business locations of secondary employers.

In Dilling Mechanical Contractors, Inc., the NLRB held that discovery requests seeking the names of union members in a state court litigation by an employer against a union violated the NLRA and suggested it will establish a new standard for evaluating whether filing a lawsuit is an unfair labor practice.

In Daycon Products Co., the NLRB found an employer violated Section 8(a)(5) and (1) and Section 8(d) of the NLRA by unilaterally reducing the contractual wages of eight employees after discovering it had mistakenly paid them inflated wages.

In NLRB v. Leiferman Enterprises, LLC, the Eighth Circuit ruled that the purchaser of a company in receivership qualified as a successor-in-interest under Golden State Bottling Co. v. NLRB, and therefore was liable for unfair labor practices the company committed before the purchase.

Three advice memoranda from the General Counsel's office of the NLRB acknowledge that there are limits to the kinds of employee comments on social media that the National Labor Relations Act (NLRA) protects.