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 National Labor Relations Board (NLRB) General Counsel's Office recently released an advice memorandum in Tasker Healthcare Group, providing guidance on whether an employee's discussions via Facebook message with current and former co-workers about an employer were protected and concerted under the National Labor Relations Act (NLRA).   

The National Labor Relations Board (NLRB) General Counsel's Office recently released an advice memorandum in American Water Service Company, Inc., providing guidance on whether an employer engaged in unlawful direct dealing when it settled a former employee's workers' compensation claim without attempting to notify the employee's union of the pending settlement and, as a condition to the settlement, required the employee to sign a release agreement that impacted the union's pending grievance over her discharge.

In New York Party Shuttle, LLC, the National Labor Relations Board (NLRB) held that an employer violated the National Labor Relations Act (NLRA) when it terminated an employee who complained about his working conditions and discussed his past union experience in a Facebook posting and e-mails.

In Harrell v. American Red Cross, the US Court of Appeals for the Seventh Circuit ruled that a district court should have ordered rescission of all of an employer's unilateral changes to bargaining unit employees' terms and conditions of employment after finding that the union was entitled to temporary injunctive relief under Section 10(j) of the National Labor Relations Act (NLRA).

The National Labor Relations Board (NLRB) recently released an advice memorandum dated January 29, 2013 stating that an employer's rule categorically prohibiting employees from disclosing information about employee investigations is unlawfully overbroad under the NLRB's decision in Banner Health.

The Office of the General Counsel of the National Labor Relations Board (NLRB) has issued an internal guidance memorandum discussing the retroactive modification of pending NLRB orders to include the tax remedies provided in the NLRB's recent decision in Latino Express, Inc. 

In JAG Healthcare, Inc., the National Labor Relations Board (NLRB) held that an acquiring nursing home operator that told employees there would not be a union when it took control of nursing home operations violated the National Labor Relations Act (NLRA) and forfeited its rights under NLRB v. Burns Security Services to set the initial terms and conditions of employment unilaterally. The NLRB also applied its pre-Register Guard standard for evaluating whether a solicitation and distribution policy discriminates against union activity.

The National Labor Relations Board (NLRB) released an advice memorandum clarifying when language in an employer's standards of conduct policy does not impermissibly restrict its employees' rights under Section 7 of the National Labor Relations Act (NLRA).

The US Court of Appeals for the Fourth Circuit in NLRB v. Daycon Products, Co. remanded a wage reduction case to the National Labor Relations Board (NLRB) to consider whether an employer had a sound arguable basis for interpreting a collective bargaining agreement (CBA) to allow it to make unilateral wage reductions.

In Chamber of Commerce of the United States of America and Coalition for a Democratic Workplace v. NLRB, the US Court of Appeals for the District of Columbia Circuit ruled on its own motion to postpone oral argument and hold in abeyance the case reviewing the National Labor Relations Board's (NLRB) election rules. The court relied on its judgment in Noel Canning v. NLRB, where it found that President Obama's January 4, 2012 recess appointments to the NLRB were invalid, and vacated a challenged NLRB decision for lack of a three-member quorum.

The National Labor Relations Board's (NLRB) Acting General Counsel announced procedures for the reimbursement of excess income taxes paid because of lump-sum backpay awards and the reporting of backpay allocation to the Social Security Administration. The memorandum implements the new procedures required as a result of the NLRB's decision in Latino Express, Inc.

In DirecTV U.S. DirecTV Holdings LLC, the National Labor Relations Board (NLRB) held that an employee committed unfair labor practices when it promulgated certain policies restricting employee communications and terminated an employee, purportedly for insubordination, following his vocal support for union representation.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses Sweeney v. Daniels, in which a union challenged Indiana's right-to-work law in federal court. The US District Court for the Northern District of Indiana held that the law does not violate the contracts or ex post facto clauses of the US Constitution. The District Court also held that Section 3 of the law does not create an exception for building industries, but instead reaffirms Section 8 of the law, which prohibits union security clauses.

The Department of Labor (DOL) has announced that its final rule implementing Executive Order 13495 will be effective on January 18, 2013. The Executive Order requires contractors and subcontractors offered a federal service contract on or after the effective date to offer employees employed under a predecessor contract a right of first refusal of employment.

In American Baptist Homes of the West, the National Labor Relations Board (NLRB) overturned its 1978 decision in Anheuser-Busch, which categorically exempted employee witness statements from the types of information that an employer must provide at the request of the union representing its employees to satisfy its collective bargaining obligations under the National Labor Relations Act (NLRA).

In Alan Ritchey, Inc., the National Labor Relations Board (NLRB) held that an employer violated the National Labor Relations Act (NLRA) by applying pre-existing disciplinary rules, for which some discretion was required, on bargaining unit employees without giving notice and an opportunity to bargain about each disciplinary action. The employer and union had no collective bargaining agreement (CBA) or an interim grievance procedure at the time of the disciplinary actions.

In Hispanics United of Buffalo, Inc., the National Labor Relations Board (NLRB) held that an employer unlawfully terminated five employees for their Facebook posts and comments about a co-worker's criticism of their work, because the Facebook posts and comments were protected concerted activity under the National Labor Relations Act (NLRA).

The National Mediation Board (NMB) issued a final rule amending its existing regulations pertaining to representation elections, run-off elections and rulemaking. The changes, which are effective December 21, 2012, were made in response to amendments to the Railway Labor Act (RLA) in the FAA Modernization and Reform Act of 2012.

In WKYC-TV, Inc., the National Labor Relations Board (NLRB) held that an employer's obligation under a collective bargaining agreement (CBA) provision to deduct union dues from employees' wages (commonly called "dues checkoff") continues after the CBA that includes that provision expires.

In Ampersand Publishing LLC v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that editorial policies are not "terms and conditions" of employment in which employees have a legitimate interest. Therefore employees were not protected from discharge under the National Labor Relations Act (NLRA) for engaging in concerted activity including union organizing to affect these policies.

In Medco Health Solutions of Las Vegas, Inc. v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that an employer did not violate the National Labor Relations Act (NLRA) by prohibiting an employee from wearing a shirt with a written message that mocked an employer-sponsored employee recognition program.

This Law Firm Publication by Jackson Lewis LLP discusses the Workplace Fairness and Equity Act, a right-to-work law enacted in Michigan on December 11, 2012. Like other right-to-work laws, the law prohibits union security clauses in collective bargaining agreements. This means that employees will not be required to join a union or pay union dues as a condition of employment. The law applies to collective bargaining agreements that take effect or are extended or renewed after the effective date of the law, which will probably be April 1, 2013. It affects both public and private employers in Michigan.

The US Court of Appeals for the District of Columbia ruled in KLB Industries v. NLRB that an employer's claim of competitive disadvantage, invoked during the collective bargaining process to justify wage cuts for employees, triggered an obligation to respond to a union's request for specific information to verify that claim.

The US Court of Appeals for the DC Circuit issued a decision in SFO Good-Nite Inn, LLC v. NLRB upholding  the National Labor Relations Board (NLRB)'s application of Hearst Corp., which found an unrebuttable presumption that a decertification petition is tainted by an employer's instigating it, rather than the union disaffection causality test in Master Slack Corp.

In IronTiger Logistics, Inc., the National Labor Relations Board (NLRB) held that an employer violated Section 8(a)(5) of the National Labor Relations Act (NLRA) by failing to timely respond in any manner to a union's request for presumptively relevant information relating to bargaining unit employees. The fact that the information requested was ultimately found to be irrelevant was immaterial. 

In Cofire Paving Corp., the National Labor Relations Board (NLRB) held when an employer's employees elect a new union and the former union's pension and annuity plans under a previously expired collective bargaining agreement (CBA) are no longer available to them, to maintain the status quo, the employer must set aside contributions at the rates set by the former union's expired CBA for the benefit of the employees until a new agreement is reached.

In J.A. Croson Co. and Federal Security, Inc., the National Labor Relations Board (NLRB) held that employers' state court lawsuits against employees, an employer and a union were unfair labor practices (ULPs) under the National Labor Relations Act (NLRA) because the lawsuits were preempted, in one case retroactively, by the NLRA and therefore interfered with employees' rights under Section 7 of the NLRA.  

In Vision of Elk River, Inc., the National Labor Relations Board (NLRB) held that an employer unlawfully terminated five employees as part of a lawful reduction in force because of their union activities even though those activities occurred two years before their terminations.

In Karl Knauz Motors, Inc., the National Labor Relations Board (NLRB) upheld the termination of an employee for Facebook comments that were not protected under Section 7 of the National Labor Relations Act (NLRA). The NLRB also held that an employer's rule requiring employees to treat others with courtesy and to refrain from using language that is disrespectful or harmful to the employer's image and reputation unlawfully restricted Section 7 activity.

The National Labor Relations Board (NLRB) held in G4S Regulated Security Solutions that two security lieutenants at a Florida nuclear power plant were not supervisors under the National Labor Relations Act (NLRA), and therefore their employer may have violated the NLRA by discharging them.

In NLRB v. Gimrock Construction, Inc., the US Court of Appeals for the Eleventh Circuit held that the National Labor Relations Board (NLRB) could not expand or particularize a general order to bargain in good faith previously imposed by the Eleventh Circuit on an employer. The NLRB lacks the power to modify an order over which a court has exclusive jurisdiction or that the court has enforced in a final judgment.     

The US Court of Appeals for the Tenth Circuit ruled in Communication Workers of America v. Avaya, Inc. that a district court improperly presumed that a union, which had a collective bargaining agreement (CBA) and a neutrality agreement with the employer, was entitled to arbitrate a dispute about the managerial status of employees it intented to organize. The Tenth Circuit held that the court should have applied a more searching judicial review to determine the dispute was not arbitrable.

In Sheet Metal Workers Local No. 2 v. Silgan Containers Manufacturing Corp., the US Court of Appeals for the Eighth Circuit held that a union can compel arbitration under the arbitration provision in its collective bargaining agreement (CBA) of a grievance challenging the discharge of a now deceased grievant.

In Dresser-Rand Co., the National Labor Relations Board (NLRB) found, in part, that unfair labor practices an employer committed after ending a lockout supported an inference that the employer was unlawfully motivated by anti-union animus in deciding to lock out union employees.

In Banner Estrella Medical Center, the National Labor Relations Board (NLRB) held that an employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by asking employees who make complaints not to discuss ongoing investigations with co-workers.    

In Martin v. Spring Break '83 Productions, L.L.C., the US Court of Appeals for the Fifth Circuit held that an employer and a labor union could enter a private unsupervised settlement agreement releasing union-represented employees' substantive claims under the Fair Labor Standards Act (FLSA). The settlement was permissible because there was a bona fide dispute over hours worked, and the union addressed, rather than waived, the employees' substantive FLSA claims in the settlement. 

In Sodexo America LLC, the National Labor Relations Board (NLRB) ruled that a hospital's policy that permitted off-duty employees to enter the hospital to conduct hospital-related business violated the National Labor Relations Act (NLRA), reaffirming precedent that only blanket bans on off-duty employee access to interior working areas are presumptively valid.

The National Labor Relations Board (NLRB) held in Kennametal, Inc. that a union had waived its right to bargain over an employer's decision to implement a safety checklist requirement for its employees in its collective bargaining agreement (CBA), but not the employer's change in discipline for safety violations. The NLRB also found that the employer violated the National Labor Relations Act (NLRA) by failing to provide the union with requested information about the effects of the safety checklist requirements, since the union gave the employer notice that it had a legitimate basis for requesting the information.

On June 22, 2012, a divided National Labor Relations Board (NLRB) released an Order and a Notice and Invitation to File Briefs in the consolidated cases of New York University and Polytechnic Institute of New York University, to aid the NLRB while it reconsiders Brown University. The NLRB invited amicus briefs on the question of whether it should modify or overrule the holding that graduate student assistants are not statutory employees under Section 2(3) of the National Labor Relations Act (NLRA) because they have a primarily educational, not economic, relationship with their university.

The US Court of Appeals for the District of Columbia Circuit ruled in E.I. Du Pont De Nemours & Co. v. NLRB that the National Labor Relations Board (NLRB) lacked a reasonable justification for departing from precedent permitting an employer to make unilateral changes to employee benefits during contract negotiations with a union where those changes were consistent with past practice without violating the National Labor Relations Act (NLRA).

This Law Firm Publication by Jackson Lewis LLP discusses a California Court of Appeal's decision in Iskanian v. CLS Transportation upholding a class action waiver in an arbitration agreement and distinguishing the National Labor Relations Board's (NLRB) decision in D.R. Horton. The court followed AT&T Mobility LLC v. Concepcion, noting Concepcion made no exception for employment-related disputes in reiterating the general rule that arbitration agreements must be enforced according to their terms. The court also held the arbitration agreement barred the plaintiff from bringing claims under the California Private Attorney General Act (PAGA).

On May 22, 2012, a divided National Labor Relations Board (NLRB) invited amicus briefs in Point Park University on the question of whether university faculty members are managerial employees excluded from the National Labor Relations Act's (NLRA) coverage. The case has a long history starting with a union successfully petitioning for a union election more than eight years ago.

In Chamber of Commerce v. NLRB, the US District Court for the District of Columbia held that the union election rule issued recently by the National Labor Relations Board is invalid because a quorum of the Board's members was not present for the vote on the rule.   

The US Court of Appeals for the Second Circuit recently issued a decision in NLRB v. Starbucks Corp., ruling that Starbucks could prohibit its employees from wearing more than one pro-unionization button on their work clothes.  The Second Circuit reversed the holding of the National Labor Relations Board (NLRB) that Starbucks's policy was an unfair labor practice. 

On May 3, 2012, the US Court of Appeals for the Second Circuit held in HOP Energy, L.L.C. v. Local 553 Pension Fund that an employer that stopped contributing to a multiemployer pension fund after it sold the assets of one of its divisions cannot use the Multiemployer Pension Plan Amendment Act (MPPAA) sale of assets exemption to avoid withdrawal liability under the Employee Retirement Income Security Act of 1974 (ERISA) when the purchaser did not assume substantially the same post-sale obligation to contribute as the seller had pre-sale.

On April 17, 2012, the US Court of Appeals for the DC Circuit issued its decision in New York New York, LLC v. NLRB, upholding the National Labor Relations Board's (NLRB) interpretation of the National Labor Relations Act (NLRA) as permitting onsite contractor's employees to handbill for a union on private property in most circumstances.

On April 17, 2012, the US Court of Appeals for the DC Circuit enjoined the National Labor Relations Board (NLRB) from requiring employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA) by April 30, 2012. The injunction in National Association of Manufacturers v. NLRB maintains the status quo while the court evaluates an appeal about the validity of the NLRB's poster rule. The court's injunction order followed an April 13, 2012 decision in Chamber of Commerce of the United States v. NLRB, where the federal District Court for the District of South Carolina granted summary judgment in favor of the plaintiffs, holding that the NLRB lacks authority under the Administrative Procedure Act to issue the rule. 

In Chapman v. UAW Local 1005, the US Court of Appeals for the Sixth Circuit Court held, en banc, that a union-represented employee must exhaust internal union processes to appeal his union's decision not to file a grievance on his behalf before he can bring a hybrid lawsuit under Section 301 of the Labor Management Relations Act (LMRA) alleging his union breached its duty of fair representation (DFR) and his employer breached the applicable collective bargaining agreement (CBA). The Sixth Circuit expressly overruled its 1999 decision in Williams v. Molpus, which excused employees from exhausting their union's internal appeals processes before suing the union and employer, explaining that the case was based on a misunderstanding of Supreme Court precedent.

In Comau, Inc. v. NLRB, the US Courts of Appeals for the District of Columbia Circuit held that when the National Labor Relations Board (NLRB) evaluates whether an employer lawfully implemented unilateral changes on reaching an impasse in collective bargaining, it must determine whether there is an impasse when the unilateral change was reasonably comprehended by the parties and not necessarily when the change was effective.  

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum provides answers to frequently asked questions about Indiana's new right-to-work law, which went into effect February 1, 2012. It addresses questions such as: What the law does. To whom the law applies. How the law impacts current collective bargaining agreements. For more information on the Indiana right-to-work law, see Legal Update, Ogletree Deakins: Indiana Enacts Right-to-work Law.  

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum discusses the right-to-work bill that became effective once Indiana Governor Mitch Daniels signed it into law on February 1, 2012. The law makes it a Class A misdemeanor to require an individual to become or remain a member of a labor organization, or to pay union fees or dues as a condition of employment, and creates a private right of action for violations. Indiana is the 23rd state to enact a right-to-work law.

The General Counsel of the National Labor Relations Board (NLRB) released a report dated January 24, 2012 that summarizes its guidance in recent unfair labor practice (ULP) cases involving employer responses to employees' use of social media. The report provides guidance on the lawfulness of employer social media policies under the National Labor Relations Act (NLRA).

On January 18, 2012, in Mulhall v. UNITE HERE Local 355, the US Court of Appeals for the Eleventh Circuit held that organizing assistance offered by an employer to a labor union can be a payment of a "thing of value" prohibited by Section 302 of the Labor Management Relations Act (LMRA). 

The National Labor Relations Board (NLRB) issued a decision in Dodge of Naperville, Inc. dated January 3, 2012, holding that a company violated the National Labor Relations Act (NLRA) when it withdrew recognition from a union after failing to bargain with the union over the effects of transferring certain represented employees to a new location where they were consolidated into a nonunion workforce. The NLRB required the employer to continue collective bargaining agreement terms and to continue bargaining about the terms and conditions of employment for the unionized workers at the new facility. Member Hayes dissented.

The National Labor Relations Board (NLRB) issued a decision in Saint John's Health Center, dated December 30, 2011, holding that a hospital violated the National Labor Relations Act (NLRA) by maintaining rules barring nurses from wearing certain union ribbons in patient areas and prohibiting off-duty employees from accessing interior areas of the hospital except at select times other than for hospital-sponsored events, even though it permitted access to select interior areas all of the time. Under the Board's decision, only blanket bans on all insignia in patient areas are presumptively valid, although an employer may be entitled to impose a narrow ban in patient areas by showing that special circumstances justify the narrow ban. Similarly, only blanket bans on off-duty employee access to interior working areas are presumptively valid.

In Camelot Terrace, the NLRB required two nursing homes to pay costs and expenses incurred by the their employees' labor union during negotiation and litigation. The NLRB found that both employers, which are owned by the same person, repeatedly acted in bad faith, resulting in many unfair labor practices. The fee-shifting penalty was intended to reimburse the union for the financial losses it incurred during negotiation and litigation.    

The National Labor Relations Board (NLRB) held that the employee of a subcontractor temporarily on a worksite could engage in activity to organize the employees of the property owner on the owner's private property. In Reliant Energy, the NLRB found that the subcontractor's employee was lawfully on the property because of his job, and that there were no work disruptions from the activity. Member Hayes dissented, stating that the majority failed to consider the owner's property rights and improperly broadened access rights for non-employees.

On December 30, 2011, the National Labor Relations Board (NLRB) in Simon DeBartolo Group held that an owner of multiple shopping malls unlawfully prevented employees of its maintenance contractor from distributing union organizational handbills at several of its shopping malls. The contractor's employees effectively had the same rights to handbill on mall property as the mall owner's employees because they "regularly" worked at the malls and the property owner failed to prove that the handbilling "significantly interfered" with its or its tenants' use of the shopping mall.

The National Labor Relations Board (NLRB) is postponing the effective date of its rule requiring employers to inform employees of their rights under the National Labor Relations Act (NLRA) from January 31, 2012 to April 30, 2012.

In Manhattan Center Studios, Inc., the National Labor Relations Board (NLRB) clarified its standard for allowing newly discovered evidence of objectionable election conduct. On remand from the U.S. Court of Appeals for the District of Columbia, the NLRB applied the new standard to deny an employer's purported newly discovered evidence that a supervisor unlawfully encouraged employees to vote for the union. The NLRB also granted summary judgment on an unfair labor practice (ULP) complaint against the employer who challenged the NLRB election results by refusing to bargain with the union.

The National Labor Relations Board (NLRB) granted summary judgment against an employer that defaulted on an informal settlement agreement to resolve a union's pending unfair labor practice (ULP) charges. The NLRB denied the employer's request for a hearing on the ULP charges and precluded the employer from contesting summary judgment based on its assertion that the settlement agreement was signed by a manager, who was not authorized to settle the matter. In Rogan Brothers Sanitation, the Board enforced the agreement, holding that the employer was bound by the terms of the settlement agreement and waived all arguments about the underlying ULP charges and that processing of the charges should be deferred to the parties' grievance arbitration system.

The Seventh Circuit recently held that where one airline merged with another airline and soon after was dissolved, furloughed union members of the dissolved airline should be intergrated into the seniority lists for the surviving entity rather placed at the bottom of them.  In Committee of Concerned Midwest Flight Attendants v. International Brotherhood of Teamsters Airline Division and Teamsters Local 135 the court relied on National Mediation Board (NMB) determinations that the merged airline became part of a single transportation system with the surviving entity under the Railway Labor Act (RLA) and held that the McCaskill-Bond Amendment to the Federal Aviation Act (FAA), which requires merging seniority lists in airline mergers, applies even when the merged entity is quickly dissolved and the surviving entity abandons the dissolved airline's certificate to engage in air transportation.

In Douglas Autotech Corporation, the National Labor Relations Board (NLRB) held that an employer lost its right under Section 8(d) of the National Labor Relations Act (NLRA) to terminate employees for striking illegally by imposing a lockout on them. By locking the workers out after the illegal strike ended, the employer effectively "re-employed" the workers, restoring their rights under the NLRA immunizing them from discipline for the illegal strike. Accordingly, the NLRB held that the employer unlawfully terminated the strikers.

In G & K Services, the NLRB found an employer had implicitly promised employees new benefits if they voted to decertify their union where the employer sent them a letter stating employees at its other facility became eligible for additional health benefits after decertifying the same union.

In Arkema, Inc., the National Labor Relations Board (NLRB) ruled that the employer violated the National Labor Relations Act (NLRA) by disciplining a union supporting employee who made a perceived threat but did not violate the express terms of the employer's harassment policy, while urging a fellow employee to support the union during an upcoming decertification election. The NLRB also held that the employer unlawfully issued a letter prohibiting harassment in the wake of the union supporters actions. The NLRB set aside the results of the election because these violations occurred in the critical period between the petition for the election and the election.

The National Labor Relations Board (NLRB) set its evidentiary standards for evaluating whether an employer brought a lawsuit with an unlawful retaliatory motive. On October 25, 2011, in Allied Mechanical Services, Inc., the NLRB decided that an employer's unsuccessful lawsuit against a union violated the National Labor Relations Act (NLRA) because it was baseless and retaliatory. The Board held that a baseless action alone is not sufficient to prove retaliation; it can however suggest a retaliatory motive.

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum discusses new California employment laws signed by Governor Brown. Under SB 222/AB 210, health insurers must provide maternity coverage for all insureds under individual policies starting no later than July 1, 2012. Under AB 243, farm labor contractors must include the name and address of all growers or other farm labor contractors that used the employer's services on employees' itemized payroll statements. Under SB 126, the Agricultural Labor Relations Board can certify a union as the employees' bargaining agent if it finds employer misconduct would make the chances of a fair new election unlikely. The latter two laws become effective January 1, 2012.

In Local Joint Executive Board of Las Vegas v. National Labor Relations Board, the US Court of Appeals for the Ninth Circuit held that casinos in a right-to-work state violated Section 8(a)(5) of the National Labor Relations Act (NLRA) when they unilaterally stopped deducting union dues from employees' paychecks, without bargaining to agreement or impasse.

In UGL-UNICCO Co., the National Labor Review Board (NLRB) overruled MV Transportation and reinstated the previously rejected successor bar doctrine. The five-member panel (Board) also modified the contract bar doctrine as applied to successor employer collective bargaining. This decision will likely entrench incumbent unions through mergers and acquisitions more than previous law would have allowed.

In Specialty Healthcare and Rehabilitation Center of Mobile, the NLRB changed the law for determining what constitutes an appropriate collective bargaining unit in all industries, except acute healthcare facilities.  

In Virginia Mason Hospital, the NLRB limited the core-purpose exception to obligations to bargain over changes to unionized employees' terms and conditions of employment under its previous ruling in Peerless Publications. The NLRB found that a hospital's flu prevention policy did not fit the Peerless exception.

In Stericycle, Inc., the NLRB overturned existing Board precedent and set out a new rule on when a union may file a lawsuit on behalf of employees without engaging in objectionable conduct that would warrant setting aside a representation election in which the employees vote.

The General Counsel of the NLRB released a report on August 18, 2011 that summarizes its guidance in recent unfair labor practice cases involving employer responses to employees' use of social media. The report clarifies the kind of employee speech protected by the NLRA. 

In The Continental Group, Inc., the NLRB held that although an employer maintained an unlawfully broad no-access policy for off-duty employees, a written warning issued to an employee under that policy was not unlawful under the Double Eagle rule because the employee was not engaging in union or other protected activity.

The NLRB found that the publisher of a Santa Barbara newspaper committed multiple unfair labor practices in violation of the NLRA after newsroom employees engaged in a union organizing campaign and labor protests.

The NLRB recently held in Mezonos Maven Bakery, Inc.  that it lacks authority to award backpay damages to undocumented workers if either the workers or their employer have violated the Immigration Reform and Control Act.  The NLRB relied on the US Supreme Court's ruling in Hoffman Plastic Compounds, Inc. v. NLRB.  

An update on the Sixth Circuit's opinion in Pulte Homes, Inc. v. Laborers' International Union permitting an employer to bring a claim under the federal Computer Fraud and Abuse Act (CFAA) against a union that bombarded the company's e-mail and voicemail systems as part of a labor protest.