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Total Articles: 14

Department of Labor Provides Guidance on Retirement Plan Obligations When Employees Return From Military Service

The Department of Labor recently issued a fact sheet intended to help employers understand their retirement plan obligations under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). The law provides that eligible employees that return to employment following qualified military service must be treated as though their military service was not a break in service for purposes of participation, vesting and benefit accrual under their employer’s retirement plan.[1]

NLRB Issues Reprieve for Unionized Employers Seeking to Make Unilateral Changes

Many employers loathe the prospect of unionization due to the potential of a union hampering such employer’s ability to make operational changes to adapt to business demands. Many employers signatory to a collective bargaining agreement experience firsthand the restrictions of antiquated contract language that prohibit unilateral operational changes.

NLRB Members Intend to Revisit Applicability of ‘Contract Coverage’ Standard in Unilateral Change Cases

How the NLRB analyzes defenses to unilateral change unfair labor practice charges may be in for a substantial revision.

NLRB Strikes Healthcare Facility Conduct Rules

The National Labor Relations Board (NLRB) has provided clear signals that the unique, patient-centric environments of general hospital and medical centers—and even surgical services and perianesthesia departments—will not justify any departure from its sweeping decisions striking policies, procedures, and codes of conduct under Section 8(a)(1) of the National Labor Relations Act (NLRA). An employer violates Section 8(a)(1) of the NLRA if it maintains work rules that tend to chill employees’ exercise of their Section 7 right to engage in protected, concerted activity. Even if a rule does not explicitly restrict protected activities, it will violate Section 8(a)(1) if an employee would reasonably construe the rule to prohibit Section 7 activity.

Employer’s Careful Drafting of Warning Document Causes Court of Appeals to Overturn NLRB Violation Finding

The United States Court of Appeals for the District of Columbia Circuit has refused to enforce a National Labor Relations Board order that a company violated the National Labor Relations Act by warning a union steward not to make “frivolous” information requests in the future. Dover Energy, Inc. v. NLRB, No. 14-1197 (D.C. Cir. Mar. 22, 2016). The Court grounded its decision on the language of the disciplinary document, highlighting the importance of meticulous drafting of disciplinary documents where the NLRA may be in play.

NLRB Reverses Precedent; Allows Unions Easy Access to Employee Witness Statements

For nearly 40 years, the National Labor Relations Board has followed a bright-line rule pursuant to which an employer is privileged to withhold witness statements from unions. In its 1978 Anheuser-Busch Inc. decision, the Board held that an employer’s general duty under federal labor law to provide information to a union “does not encompass the duty to furnish witness statements themselves.” Late last month, however, in American Baptist Homes of the West, d/b/a Piedmont Gardens, the Board reversed itself and ruled that, going forward, it will apply a balancing test to union requests for witness statements and will require disclosure upon request unless the employer can establish “legitimate and substantial confidentiality interests.”

In Fresenius, the NLRB Admits It Was Wrong . . . Sort Of!

On June 24, 2015, the National Labor Relations Board (NLRB) issued a new decision involving allegations that an employer had unlawfully discharged an employee who had scrawled sexually-oriented obscenities and threatening statements on the face of union literature. In Fresenius USA Manufacturing, Inc., NLRB Case 02-CA-039518, the Board dismissed a complaint that the employer had violated Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act (NLRA) by firing the employee whose statements were directed at female employees who the offending employee feared would vote against the union in a decertification election. According to the complaint, the company initiated an investigation after receiving complaints by female employees and the discharged employee lied about his actions during a subsequent investigatory interview.

Is the NLRB’s Obsession with “Default Language” in Informal Settlement Agreements Waning?

The 2011 decision of the former Acting General Counsel of the National Labor Relations Board (NLRB) to mandate inclusion of “default language” in every informal unfair labor practice settlement agreement (General Counsel Memo 11-04, January 12, 2011) placed employers and their counsel in an untenable position: go to hearing on garden variety unfair labor practice (ULP) charges or accept the ambiguous and potentially onerous consequences spelled out in the “Performance” section of the Board’s form settlement agreement, which accompanies the settlement notice posting. The uncertainty created by the “default language” initiative compels savvy labor counsel to think outside the box to protect and balance clients’ short and long term interests.

When "Let's Keep It Quiet" Is An Unfair Labor Practice

On July 30, 2012, the National Labor Relations Board (NLRB) issued a bad decision for any employer that expects employees to maintain the confidentiality of internal investigations (such as investigations of employee misconduct, allegations of discrimination, and the like). In Banner Health System the Board held that a blanket rule prohibiting employees from discussing an ongoing investigation violated their legal rights, unless "legitimate and substantial justification exists."

Employers must be able to recognize a Weingarten request in order to avoid liability under the NLRA.

Section 8(a)(1) of the National Labor Relations Act (NLRA) makes it illegal for an employer to interfere with or restrain employees from exercising the rights accorded to them under that Act. In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the U.S. Supreme Court held that the NLRA “guarantees an employee’s right to the presence of a union representative at an investigatory interview in which the risk of discipline reasonably inheres.” The protections that resulted from that holding typically are referred to as “Weingarten rights.” On July 25, 2012, the National Labor Relations Board (NLRB) upheld an Administrative Law Judge’s decision that an employer violated an employee’s Weingarten rights when managers ignored the employee’s request to have a union representative present when a meeting -- originally scheduled to impose a verbal warning for prior actions -- became a discussion of the employee’s general behavior and interaction with his supervisor. That issue was one of many addressed by the NLRB in an appeal in which the remaining issues were dismissed or found not to have been a violation of the NLRA.

NLRB Rules in Favor of Ritz-Carlton Hotel On ULP Charge Against Local 1

Prior to the citywide negotiation of the 2009-2013 collective bargaining agreements for the Chicago hotels, the Ritz-Carlton Hotel entered into a "Me Too" Agreement with UNITE HERE Local 1. Pursuant to that agreement, the Ritz-Carlton would adopt most of the terms of the CBA negotiated between Local 1 and the Sheraton Chicago, but would bargain separately with Local 1 over nine specific topics and practice areas where it sought to make changes. When the parties' negotiations commenced, Local 1 refused to bargain over most of the nine issues and took the position that it had only agreed to negotiate related to three of them.

“Bad Haircut” and Unequal Policy Enforcement Lead to Trouble for Employer

In NLRB v. White Oak Manor, the Fourth Circuit Court of Appeals enforced a decision by the National Labor Relations Board finding that an employer violated the National Labor Relations Act when it discharged an employee allegedly for photographing employees at work without permission. The Court agreed with the Board’s findings that the employee was actually discharged because of protected concerted activity and that the employer had not consistently enforced its photography and dress code policies.

Recent NLRB Decision Reinforces that Most “Bannering” Does Not Violate the NLRA

Over the past 12 months, the National Labor Relations Board has considered whether certain union activities directed at a “secondary employer”—an employer doing business with the “primary employer” with which the union has a dispute—violated the National Labor Relations Act (NLRA). Section 8(b)(4)(ii)(B) of the NLRA generally prohibits “secondary activities” that are threatening, coercive, or restraining and are aimed at forcing a secondary employer to stop doing business with another person or company. Since September 2010, the Board has decided in several cases that “bannering,” a union practice of displaying a large banner outside of a secondary employer’s location, does not violate this secondary activity prohibition in the NLRA. This past spring, the Board extended its reasoning to cover other types of bannering as well, such as the display of large inflatable rats or similar balloons. This month, a majority of the Board again reaffirmed the broad, although not unlimited, protection for bannering under the NLRA and First Amendment.

Supervisor has a viable claim under the NLRA when terminated or disciplined for refusing to commit unfair labor practices.

Although supervisors generally are not covered by the National Labor Relations Act (NLRA), which protects “employees” from unfair labor practices, that Act is deemed to have been violated if a supervisor’s discharge results from his refusal to commit an unfair labor practice. Recently, the 6th U.S. Circuit Court of Appeals upheld the dismissal of a supervisor’s federal court complaint on the basis of lack of jurisdiction, holding that because the individual claimed to have been fired for refusing to take action against pro-union employees, the issue could only be properly reviewed by the National Labor Relations Board (NLRB).
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