New York Labor And Employment Law Report

New York Labor And Employment Law Report

Category Archives: Labor Relations

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NLRB Again Imposes Duty to Bargain Over Discipline Even Before Agreement on a Contract

Posted in Discharge and Discipline, Labor Relations, National Labor Relations Board
On August 26, 2016, the National Labor Relations Board issued a decision in Total Security Management Illinois 1, LLC, in which it held that an employer who is engaged in negotiations for an initial collective bargaining agreement with a recently certified union must provide the union with notice and an opportunity to bargain prior to imposing discipline… Continue Reading

The NLRB’s Browning-Ferris Decision Significantly Lowers the Standard For Who Is a Joint Employer Under the NLRA

Posted in Labor Relations, National Labor Relations Board
In Browning-Ferris Industries of California, Inc., the National Labor Relations Board (“NLRB” or “Board”), in a 3-2 decision, expanded who may be considered a joint employer under the National Labor Relations Act (“NLRA” or the “Act”).  The Board’s decision significantly lowers the threshold for joint employer status, making it more likely that entities such as… Continue Reading

NLRB Revisits and Overturns Longstanding Precedent Regarding Disclosure of Witness Statements

Posted in Labor Relations, National Labor Relations Board
As we reported in an earlier blog post, the National Labor Relations Board issued the American Baptist Homes of the West (“Piedmont Gardens”) decision in December 2012, overturning more than 30 years of precedent shielding witness statements from disclosure.  In June 2014, however, the Supreme Court handed down the Noel Canning decision, in which it found that President Obama’s… Continue Reading

NLRB General Counsel Issues Guidance Memorandum on Employee Handbook Rules

Posted in Labor Relations, National Labor Relations Board
The General Counsel for the National Labor Relations Board (“NLRB”) recently published a guidance memorandum that provides specific examples of lawful and unlawful employee handbook rules in the areas of confidentiality, professionalism and employee conduct, use of company logos, copyrights and trademarks, conflicts of interest, photography and recording, and interaction with the media and other third… Continue Reading

NLRB Overrules 2007 Decision and Holds That Employees Have a Right to Use Their Employer’s E-Mail System for Union Organizing

Posted in Labor Relations, National Labor Relations Board, Union Organizing
On December 11, 2014, the National Labor Relations Board (“Board”) issued a 3-2 decision (with Board Members Philip Miscimarra and Harry Johnson dissenting) in Purple Communications, Inc., holding that employees have a presumptive right to use their employer’s e-mail system during non-working time to communicate regarding union organizing and to engage in other protected concerted… Continue Reading

The NLRB Holds That Certain Activity on Facebook is Not Protected

Posted in Labor Relations, National Labor Relations Board
The exact limits of employee protected speech on social media are still finding definition, but a recent National Labor Relations Board decision identifies at least one limit:  premeditated insubordination.  In Richmond District Neighborhood Center, the Board held that two employees who discussed their plans on Facebook to engage in insubordinate activity on the job did not engage in protected activity,… Continue Reading

NLRB ALJ Rules That An Interim Grievance Procedure Does Not Require An Arbitration Option

Posted in Labor Relations, National Labor Relations Board
In a decision issued last week, an Administrative Law Judge (“ALJ”) for the National Labor Relations Board (“NLRB”) ruled that an interim grievance procedure between an employer and a newly-certified union did not have to include an arbitration option in order to relieve the employer of the obligation to provide the union with notice and… Continue Reading

NLRB Regional Director Finds College Football Players Qualify as Employees and Can Unionize

Posted in Labor Relations, National Labor Relations Board, Union Organizing
In a stunning and potential landmark decision, a Regional Director of the National Labor Relations Board has found that football players receiving grant-in-aid scholarships from Northwestern University (the “University”) are “employees” under the National Labor Relations Act.  In his decision released Wednesday afternoon, the Regional Director determined that “players receiving scholarships to perform football-related services for… Continue Reading

Union’s Rejection of Company’s “Final” Proposal Does Not Always Signify Impasse

Posted in Labor Relations, National Labor Relations Board
In collective bargaining, a “final” proposal is often a term of art, used to signal the end of a party’s willingness to move.  However, negotiators frequently will continue to move even after a purportedly final offer.  In the view of the National Labor Relations Board (“NLRB”), “final” does not always really mean final.  Recently, the Fifth Circuit… Continue Reading

Fifth Circuit Court of Appeals Invalidates NLRB’s Ruling That Class Action Waivers Violate the NLRA

Posted in Arbitration, Labor Relations, National Labor Relations Board
In D.R. Horton, Inc., the National Labor Relations Board (“NLRB”) held that a mandatory arbitration agreement between an employer and an employee that included a class action waiver was unlawful under Section 8(a)(1) of the National Labor Relations Act (“NLRA”) because it prohibited the employee from engaging in concerted activity with other employees.  The NLRB’s D.R. Horton ruling, which was… Continue Reading

The NLRB Invalidates Employer’s Confidentiality Rule Prohibiting the Disclosure of Personal Employee Information

Posted in Labor Relations, National Labor Relations Board
Recently, in Quicken Loans, Inc., the National Labor Relations Board (“NLRB”) continued its close scrutiny of employers’ confidentiality rules by affirming an administrative law judge’s decision invalidating a rule prohibiting non-union employees from disclosing personal information about themselves or their co-workers, such as home phone numbers, cell phone numbers, addresses, and email addresses.… Continue Reading

New York Court of Appeals Affirms Appellate Court’s Holding That Retirement Plan Contribution Dispute Was Not Arbitrable

Posted in Arbitration, Labor Relations, Public Employment
In a recent decision of statewide applicability to public employers with unionized members of the Police and Fire Retirement System (“PFRS”), the New York Court of Appeals (“Court”) addressed the issue of whether the City of Yonkers’ refusal to pay or reimburse new employees for their statutorily-required Tier V pension contributions was arbitrable.  In City… Continue Reading

Second Circuit Upholds Employer’s Refusal to Reinstate Home Care Workers Who Struck After Stating They Would Report to Work

Posted in Labor Relations, National Labor Relations Board, Strikes
Citing “unprotected, indefensible conduct” that “created a reasonably foreseeable danger” to patients, the Second Circuit, in NLRB v. Special Touch Home Care Services, Inc., stung the National Labor Relations Board (“NLRB”) by upholding a home care employer’s refusal to reinstate strikers who “misled the employer” by falsely advising that they intended to report to work.… Continue Reading

NLRB Overturns Longstanding Precedent Protecting Witness Statements From Disclosure

Posted in Labor Relations, National Labor Relations Board
For nearly 35 years, employers in pre-arbitration discovery with a union have not been required to disclose witness statements obtained during internal workplace investigations.  However, consistent with its unabashedly pro-union year-end theme of overturning longstanding precedent, the National Labor Relations Board (“NLRB” or "Board") in American Baptist Homes of the West, d/b/a Piedmont Gardens abandoned… Continue Reading

The NLRB Requires Employers to Bargain Over Discretionary Discipline Prior to First Contract

Posted in Discharge and Discipline, Labor Relations, National Labor Relations Board
The National Labor Relations Board (“NLRB”) continues to issue rule-changing decisions that create troubling results for employers.  We recently reported, for example, on the NLRB’s reversal of decades-old precedent when it ruled that a dues checkoff provision survives the expiration of a collective bargaining agreement.  Two days after issuing that decision, the NLRB issued a decision… Continue Reading

The NLRB Reverses 50 Year-Old Precedent and Holds That Dues Checkoff Provisions Survive the Expiration of a Collective Bargaining Agreement

Posted in Labor Relations, National Labor Relations Board
The National Labor Relations Board ("NLRB") recently re-examined the issue of whether an employer’s obligation to check off union dues from employees’ wages terminates upon the expiration of a collective bargaining agreement that contains a dues checkoff provision.  This issue was seemingly resolved more than 50 years ago, in the NLRB’s Bethlehem Steel decision.  However,… Continue Reading

NLRB Provides Guidance Regarding Its Position On Employment-At-Will Policies

Posted in Labor Relations, National Labor Relations Board
Earlier this year, many employers were left scratching their heads after a National Labor Relations Board Administrative Law Judge ruled, in American Red Cross Arizona Blood Services Region, that an employer’s handbook acknowledgment, requiring employees to affirm the at-will nature of their employment, violated the National Labor Relations Act.  The language that was found to be unlawful in Red… Continue Reading

NLRB Holds That Employer Committed an Unfair Labor Practice by Failing to Respond in a Timely Manner to Union’s Irrelevant Information Request

Posted in Labor Relations, National Labor Relations Board
On October 23, 2012, the National Labor Relations Board held, in a 2-1 decision, that an employer has an obligation under the National Labor Relations Act to respond in a timely manner to a union information request, even if the requested information is ultimately found to be irrelevant to the union’s performance of its duties as the… Continue Reading

NLRB Holds That Employer’s Discharge of Employee for Facebook Postings Was Lawful, But Finds Employer’s “Courtesy” Rule Unlawful

Posted in Labor Relations, National Labor Relations Board
On September 28, 2012, the National Labor Relations Board handed down its first decision regarding whether an employee’s termination in connection with his postings on Facebook was unlawful.  In its decision, however, the Board dodged the more thorny aspect of the case, which was whether other Facebook postings of the employee that were openly critical… Continue Reading

The NLRB Issues Its First Ruling Impacting Employers’ Social Media Policies

Posted in Labor Relations, National Labor Relations Board
On September 7, the National Labor Relations Board (“Board”) issued its first decision on the lawfulness of an employer’s social media policy under the National Labor Relations Act (“NLRA”).  We have previously reported on three non-binding reports issued by the Board’s Acting General Counsel (“GC”) since August 2011, outlining his views of impermissibly restrictive social… Continue Reading

NLRB Holds That Asking Employees Not to Discuss Ongoing Investigations with Co-Workers Violates the NLRA

Posted in Labor Relations
On July 30, 2012, the National Labor Relations Board (“Board”), in a 2 to 1 decision, held that a hospital violated Section 8(a)(1) of the National Labor Relations Act ("NLRA") by asking employees who make a complaint not to discuss the matter with co-workers while the investigation is pending.  Section 8(a)(1) of the NLRA forbids employers… Continue Reading

U.S. Court of Appeals for the D.C. Circuit Refuses to Enforce National Labor Relations Board Decision and Order Regarding Unilateral Changes

Posted in Labor Relations, National Labor Relations Board
On June 8, 2012, the U.S. Court of Appeals for the D.C. Circuit refused to enforce a decision and order of the National Labor Relations Board ("Board") on the ground that the Board had "departed, without giving a reasoned justification, from its precedent . . . ."  Prior to the Board’s 2010 decision and order… Continue Reading

NLRB’s Acting General Counsel Issues Third Report on Social Media Cases

Posted in Labor Relations, National Labor Relations Board
On May 30, the NLRB’s Acting General Counsel ("GC") issued a third report on social media cases.  We have addressed the NLRB’s treatment of social media cases in several prior blog posts, including a summary of the GC’s second report on social media cases.  The focus of this third report is social media policies, and for the… Continue Reading

U.S. District Court Invalidates “Quickie” Election Rule

Posted in Labor Relations, National Labor Relations Board, Union Organizing
On May 14, 2012, a federal district court judge invalidated new regulations intended to streamline union representation elections, finding that the National Labor Relations Board lacked a proper three-member quorum when it voted on the controversial final rule in December of 2011.  The final rule, which has commonly been referred to as the "ambush" or… Continue Reading