On April 2, 2019, in a 3-1 decision split along party lines, the Trump administration’s National Labor Relations Board (Board) appointees significantly narrowed the circumstances under which a successor employer will be construed as a perfectly clear successor and forced to forfeit its right to set initial employment terms. The decision, Ridgewood Health Care Center Inc., and Ridgewood Health Services, Inc., overrules precedent which had established that a successor employer which uses discriminatory hiring practices to target less than all of the bargaining unit’s employees and deprives the union of majority status is a perfectly clear employer.  The decision allows a successor employer to retain its right to unilaterally set the initial terms of employment despite its discriminatory actions that directly affect less than all of the predecessor employees.

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The National Labor Relations Board has long recognized Weingarten rights—the rights to request assistance from union representatives during investigatory interviews by employers. Historically, the Board has limited the types of individuals that can serve in this union representative’s role to union officers that are not legal professionals. However, in the Board’s recent decision in Pacific

Unions commonly utilize clarification petitions to invoke accretion principles and try to bypass election procedures. However, the National Labor Relations Board’s recent decision in Recology Hay Road and Teamsters Local 315 illustrates how employers can avoid employee accretion into existing bargaining units by emphasizing the lack of interchange between bargaining unit employees and the non-bargaining unit employees at issue. Interchange occurs when employees alternate or transfer between positions.

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Those involved in the world of healthcare cannot escape the ongoing debate regarding staffing levels at healthcare facilities. Main Coast Memorial Hospital recently became an unwitting focal point for this discussion.  A number of internal communications between the nurses’ union and the Hospital over staffing resulted in a series of editorials in the local newspaper. 

An analysis of the NLRB General Counsel’s Memorandum

Introduction

On June 6, 2018, the National Labor Relations Board’s (“NLRB”) General Counsel (“GC”) released a memorandum providing guidance on the NLRB’s recent decision in The Boeing Company, 365 NLRB No. 154. When responding to unfair practice charges involving employer handbook rules, the memo provides employers with an easy to follow roadmap to evaluate the legality of employer handbook language and rules.


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Last week, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded a pro-employee Board decision concerning an employee who had been discharged based on the “disparaging content” of the testimony he made before state legislators.

Back in October 2012, a bargaining unit employee of Oncor Electric Delivery Company (Bobby Reed) testified before

The National Labor Relations Board found that a union committed an unfair labor practice by repeatedly blocking ingress and egress to a hotel for periods of one to four minutes. The opinion provides details about the union’s picketing efforts as a part of an organizing campaign. The blockage occurred during at least ten separate occasions

On December 14, 2017, the National Labor Relations Board (the “NLRB” or the “Board”) overruled Obama-era precedent involving two highly controversial decisions governing employee handbooks and joint employment standards.

Earlier this year, President Trump appointed two Republicans to the five-member NLRB resulting in a 3-2 Republican majority for the first time in a decade.  As anticipated, the new “Trump Board” is beginning to dismantle a series of decisions that many believed to unfairly favor unions.

New Standard Governing Employee Handbooks

In a split 3-2 decision, the Board majority in  . overturned its 2004 Lutheran Heritage standard, which had been used in recent years to render countless employer policies and rules unlawful.  The former standard provided that a policy or rule is unlawful if employees could “reasonably construe” the language to bar them from exercising their rights under the NLRA, such as discussing terms and conditions of employment.  For the past several years, the Lutheran Heritage standard has been heavily criticized for failing to take into account legitimate business justifications associated with employer policies, rules and handbook provisions in addition to yielding unpredictable and sometimes contradictory results.  For example, the standard has deemed unlawful policies that require employees to “work harmoniously” or conduct themselves in a “positive and professional manner.”


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It is not unusual on construction sites, where you have a variety of different employers present, that disputes erupt that impact the entire work site. Sometimes this can result in a number of different forms of employee protest and this decision by an Administrative Law Judge, which issued on December 8, 2017, provides a good framework for analyzing what is lawful versus unlawful conduct by an employer in responding to such activity.

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