New York Labor And Employment Law Report

New York Labor And Employment Law Report

Category Archives: National Labor Relations Board

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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

NLRB Rules that Graduate (and Undergraduate!) Student Assistants are Employees and May Unionize

Posted in National Labor Relations Board
The National Labor Relations Board, in Columbia University, issued a 3-1 decision yesterday holding that graduate, and undergraduate, student assistants are common law employees within the meaning of the National Labor Relations Act and therefore are eligible to organize and bargain collectively under federal labor law.  In so doing, the Board overruled its prior determination in… Continue Reading

NLRB Holds That Unions Can Organize Temp/Contract Workers Together With Host Employer’s Workers

Posted in National Labor Relations Board, Union Organizing
Temporary, contracted-for, or leased employees who are employed by a “supplier,” but are assigned to work at another employer’s premises, currently comprise as much as 5% of American workers, and are among the fastest growing sectors.  Noting this trend, the National Labor Relations Board, in its Miller & Anderson, Inc. decision this week, announced a new standard that… Continue Reading

NLRB’s “Quickie” Election Rule Upheld

Posted in National Labor Relations Board, Union Organizing
Last month, the United States Court of Appeals for the Fifth Circuit affirmed the lower court’s decision upholding the National Labor Relations Board’s “quickie” election rule.  As we previously reported, the final rule, among other things, significantly reduces the time period between the filing of an election petition to the date of the election, narrows… Continue Reading

The NLRB Finds Whole Foods’ No-Recording Policy Unlawful

Posted in National Labor Relations Board
In Whole Foods Market, Inc., the National Labor Relations Board, in a 2-1 decision, held that Whole Foods’ rules prohibiting the recording of conversations in the workplace violated Section 8(a)(1) of the National Labor Relations Act.  The two rules that were found to be unlawful were nearly identical.  Both appeared in the company’s General Information Guide,… Continue Reading

The Employment Expansion Trifecta: The Wage and Hour Division, The National Labor Relations Board, and . . . OSHA?

Posted in National Labor Relations Board, OSHA, Wage and Hour
Perhaps it is the end of racing season in Saratoga, but the federal employment agencies are certainly looking to hit the trifecta against independent contractors, franchisors, parent companies, and similar entities under the guise of expanding the definitions of employer and employment.… 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

The NLRB Unanimously Shuts Down Attempt to Unionize Northwestern’s Scholarship Football Players

Posted in National Labor Relations Board, Union Organizing
In a long-awaited decision issued on August 17, 2015, the five-member National Labor Relations Board (“Board”) unanimously shut down an attempt by Northwestern University’s scholarship football players to become the first group of college athletes to form a labor union.  This Board holding vacates the direction of election issued by an NLRB Regional Director in March… 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 Memorandum on Changes in Representation Case Procedures

Posted in National Labor Relations Board, Union Organizing
On April 6, the National Labor Relations Board (“NLRB”) General Counsel issued a guidance memorandum to explain the changes in the procedures for processing union representation petitions under the NLRB’s final rule on “quickie” elections that was adopted on December 15, 2014.  Although a resolution was passed by Congress to block the NLRB from implementing the quickie election… 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

The National Labor Relations Board Strikes Again — How Managerial Are Your Faculty and How Religious Is Your Institution?

Posted in National Labor Relations Board
In the latest example of dramatic changes to well-developed principles of federal labor law and policy, the National Labor Relations Board (“NLRB” or Board”) issued its long-awaited decision in Pacific Lutheran University last week.  For a description of the Board’s decision and its potential impact on union organizing at colleges and universities, please click here… Continue Reading

Two Bond Webinars Scheduled Regarding Recent NLRB Developments

Posted in National Labor Relations Board, Union Organizing
Recent activity by the National Labor Relations Board has significantly changed the landscape of union organizing campaigns and representation elections.  Attorneys from Bond, Schoeneck & King’s Labor and Employment Department will conduct two free webinars this week to explain these recent developments and their impact on employers.  Each webinar is scheduled for 45 minutes. Ray… Continue Reading

NLRB Issues Final Rule on “Quickie” Elections

Posted in National Labor Relations Board, Union Organizing
On December 15, the National Labor Relations Board’s final rule amending the current procedures for handling union representation elections (which has become known as the “quickie” or “ambush” election rule) was published in the Federal Register.  The final rule will become effective on April 14, 2015. Although Board Chairperson Mark Pearce hailed the new representation election procedures… 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 Holds That Discharge of Employees for Facebook Conversation Was Unlawful

Posted in National Labor Relations Board
On August 22, 2014, the National Labor Relations Board (“NLRB”) issued companion decisions in Three D, LLC d/b/a Triple Play Sports Bar and Grille, holding that the employer violated the National Labor Relations Act (“NLRA”) by terminating two employees for participating in an online discussion on Facebook.  The Triple Play decision is yet another reminder to employers to exercise caution… Continue Reading

Update: The NLRB and Employment-At-Will Policies in 2014

Posted in National Labor Relations Board
We originally addressed this topic on November 9, 2012, discussing the National Labor Relations Board’s scrutiny of employer handbooks containing employment-at-will provisions.  Since these disclaimers are widely used in handbooks – as well as employment applications and offer letters – the NLRB’s sudden focus on such provisions was potentially significant.  Employers drew some comfort from two 2012 Advice… Continue Reading

U.S. Supreme Court Declares President Obama’s NLRB Recess Appointments Unconstitutional

Posted in National Labor Relations Board
On June 26, 2014, the U.S. Supreme Court affirmed the decision issued by the U.S. Court of Appeals for the District of Columbia Circuit that President Obama’s recess appointments to the National Labor Relations Board (“NLRB”) on January 4, 2012, were unconstitutional.  The Supreme Court’s decision in NLRB v. Noel Canning means that the NLRB did… 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 Asserts Jurisdiction Over a Charter School in New York

Posted in National Labor Relations Board, Union Organizing
For the first time in New York State, a Regional Director for the National Labor Relations Board (“NLRB”) has asserted NLRB jurisdiction over a New York charter school, and ordered an election for a unit of approximately 35 teachers at the school.  The decision, Hyde Leadership Charter School Brooklyn, Case No. 29-RM-126444, preempts the New York… 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

National Labor Relations Board Reissues Proposed Rule on “Quickie” Elections

Posted in National Labor Relations Board, Union Organizing
The National Labor Relations Board (“Board”) reissued a proposed rule today that would significantly shorten the timetable for union representation elections.  This same proposed rule (which has become known as the “quickie” or “ambush” election rule) was initially issued by the Board on June 22, 2011.  After the proposed rule was met with strong opposition from employer… 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