On March 16, 2020, the Board issued its decision in Baylor University Medical Center and Dora S. Camacho reversing the 2018 ALJ decision and holding that Confidentiality and No Participation in Third-Party Claim provisions in a voluntary severance agreement are lawful. The decision overrules Clark Distribution System, Shamrock Foods Co., and Metro Networks to the extent the holdings extend beyond their fact patterns involving employees who were unlawfully dismissed for exercising their rights under the National Labor Relations Act (Act).
NLRB Denies Collective Bargaining Rights to Adjunct Faculty at Religious University
Husch Blackwell issued a client legal alert regarding the U.S. Court of Appeals for the D.C. Circuit’s decision in Duquesne University of the Holy Spirit v. NLRB, which resulted in the denial of collective bargaining rights to adjunct faculty members employed by Duquesne University, a religious university. In summary, the court held that the
NLRB Expands Employers’ Right to Exclude Nonemployee Union Solicitations on Private Property
On September 6, 2019, the NLRB (Board) issued the decision, Kroger Limited Partnership I Mid-Atlantic and United Food and Commercial Workers Union 400 (Kroger decision), which overruled Sandusky Mall Co., and limited the right of nonemployee union agents to access employer property for the purpose of union solicitations. The 3-1 decision, split along
Repeated Strikes in Furtherance of Common Goal Defeats Protected Status for Strikers
Key Points
- Direct evidence of a plan to engage in repeated strikes to achieve a common goal establishes that such strikes are unprotected, intermittent strikes.
- Only in the absence of direct evidence will the Board consider extenuating circumstances to evaluate whether multiple strikes constitute protected activity.
On July 25, 2019, a majority of the NLRB
New Rulemaking at NLRB Focuses on Three Discretionary Bars to Representation Election Petitions
In a notice of proposed rulemaking and request for comments published on August 12, 2019, the NLRB exercised its discretionary rulemaking authority to propose changes to three discretionary election bar policies:
- The blocking charge policy,
- The voluntary election bar policy, and
- For the construction industry only, the contract bar policy.
These policies currently bar, for
NLRB Poised to Exterminate the Cat and Rat, According to NLRB Advice Memo
On May 17, 2019, the Office of the General Counsel (GC) released an advice memorandum dated December 20, 2018 signaling the National Labor Relations Board’s (Board) intent to continue to overturn precedent.
NLRB Authorizes Reduction in Use of Investigative Subpoenas to Expedite Investigations
Memorandum 19-05, issued by the NLRB Division of Operations Management of the Office of the General Counsel in March 2019, gives Regional Directors a new tool to expedite cases when a charged party fails to cooperate with an unfair labor practice (ULP) investigation. Instead of relying on investigative subpoenas to acquire additional information, Regional
NLRB Overrules Precedent and Limits Use of Perfectly Clear Exception in Successorship Law
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.
A Mixed Bag: The NLRB Simultaneously Increases and Limits Employee Rights in Investigatory Meetings
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
The NLRB Pumps the Brakes on Union’s Accretion Efforts
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.