Total Articles: 12
Ogletree Deakins • July 06, 2016
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.
Jackson Lewis P.C. • March 28, 2016
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.
Franczek Radelet P.C • July 06, 2015
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.”
Ogletree Deakins • July 01, 2015
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.
Vedder Price • April 01, 2014
On December 3, 2013, the U.S. Court of Appeals for the Fifth Circuit handed down its decision in D.R. Horton v. National Labor Relations Board, reversing the finding of the National Labor Relations Board (NLRB). The Board held that D.R. Horton's employee arbitration agreement, entered into as a condition of employment, violated the National Labor Relations Act. The agreement required employees to voluntarily waive all rights to trial before a judge or jury on claims arising from the employment relationship. Claims were to be resolved exclusively through final and binding arbitration. It also prohibited an arbitrator from treating employee claims or the arbitration as a class or collective action, and from awarding relief on a class or group basis. The agreement left employment disputes to individual?resolution.
Ogletree Deakins • February 10, 2014
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.
Fisher Phillips • September 04, 2012
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."
Ogletree Deakins • August 06, 2012
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.
Franczek Radelet P.C • April 04, 2012
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.
Franczek Radelet P.C • November 08, 2011
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 Boardâ€™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.
Franczek Radelet P.C • August 25, 2011
Over the past 12 months, the National Labor Relations Board has considered whether certain union activities directed at a â€œsecondary employerâ€â€”an employer doing business with the â€œprimary employerâ€ with which the union has a disputeâ€”violated the National Labor Relations Act (NLRA). Section 8(b)(4)(ii)(B) of the NLRA generally prohibits â€œsecondary activitiesâ€ 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 â€œbannering,â€ a union practice of displaying a large banner outside of a secondary employerâ€™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.
Ogletree Deakins • January 17, 2011
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).