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…
From Justice Kagan’s observation that a decision in favor of the plaintiff could affect millions of public sector workers to Justice Alito’s surprise at seeing a union brief include an argument that the Constitution originally did not grant public employees free speech rights, the U.S. Supreme Court was full of impassioned discourse during Monday’s…
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…
As anticipated, the nationwide trend of enacting “right-to-work” (RTW) legislation has continued to grow – in the past few years alone, Indiana, Michigan, Wisconsin, West Virginia, and Kentucky have joined the growing list of RTW states. In these states, and the approximately twenty others that have adopted RTW legislation, employers are prohibited from requiring employees…
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.”
The NLRB today announced it is requesting Information from interested parties regarding whether or not the 2014 Election Rules should be retained in any fashion or at all. No doubt this is a heads up that these rules are going to have a short life span with the Agency. This will be a very public…
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.
Peter Robb, the new General Counsel for the NLRB, issued GC Memo 18-02 on December 1, 2017 that puts the Regional Offices on notice that any “significant legal issues” are to be submitted to Advice. Significant legal issues are defined to “include cases over the last 8 years that overruled precedent and involved one or…
In SouthCoast Hospital Group, Inc. the NLRB originally found that the Hospital violated 8(a)(1) and (3) of the Act by maintaining and enforcing a hiring/transfer policy (HR 4.06) in which the Hospital gave preference to unrepresented employees over represented employees when filling positions at its non-union facilities. The Hospital, in responding to these allegations…
The U.S. Solicitor General changing positions, the NLRB issuing a follow-up letter to oral arguments and the grave observation that a ruling for employees would invalidate agreements covering 25 million employees all reflect the contentious nature of the consolidated cases before the Supreme Court challenging the ability of an employee and employer to agree to limit resolution of legal claims to individual arbitration.
