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Total Articles: 24

Labor Board: Unions Waived Right to Bargain Over Changes to Retiree Medical Benefits

The National Labor Relations Board (NLRB) has held that an employer did not violate the National Labor Relations Act (NLRA) when it unilaterally changed retirees’ medical benefits without first negotiating with the unions that represented its employees. E.I. Du Pont De Nemours and Co., 368 NLRB No. 48 (Sept. 4, 2019).

Third Thursdays with Ruthie: Negotiating Union Security and Dues Checkoff Provisions

Union security and dues checkoff are both important subjects that come up during collective bargaining. In this episode of the Third Thursdays podcast, Ruthie Goodboe discusses the impact of union security and dues checkoff provisions, recent developments, and practical strategies for negotiating these clauses during collective bargaining.

NLRB Finds Employer Cannot Unilaterally Implement E-Verify

The National Labor Relations Board (NLRB) found, in Ruprecht Co., 366 NLRB No. 179 (Aug. 27, 2018), an employer cannot unilaterally implement E-Verify if its employees are represented by a union; rather, it must give the union notice and opportunity to bargain about its implementation.

New Orleans Charter School Operator Ordered to Bargain with Union

The Fifth Circuit Court of Appeals recently held that a New Orleans charter school was not a “political subdivision” exempt from the National Labor Relations Act (NLRA). The NLRA does not apply to States and their political subdivisions. In this case, the charter school challenged the National Labor Relations Board’s (NLRB) finding that its operator, Voices for International Business and Education, Inc., was not a political subdivision of Louisiana and thus was not exempt from the NLRA. The

E-Verify Subject to Collective Bargaining

While I-9 compliance is important, companies cannot forget about other labor and employment laws. In May 2018, a meatpacking company in Illinois was caught between ICE and the National Labor Relations Board.

NLRB GC: Employer Can Unilaterally Implement Decisions Made Before Union Election Victory

An employer lawfully unilaterally implemented a stricter tardiness and absentee policy even though a union had recently won an election to represent its workers, according to a memorandum released by the National Labor Relations Board General Counsel’s Division of Advice. Cott Beverages, Inc., No. 16-CA-206068 (Div. of Advice, Apr. 26, 2018, released May 15, 2018).

What’s Past is Prologue—NLRB Restores the Common Sense Meaning of Past Practice

In Raytheon Network Centric Systems, 365 NLRB No. 161 (December 15, 2017), the National Labor Relations Board (NLRB) jumped back into the quagmire of past practice, dynamic status quo, and impasse to create firmer ground for employers. Since first decided in 2010 and throughout the appeals process, unions used the Board’s Du Pont case, most recently reissued in 2016, E.I. Du Pont de Nemours, 364 NLRB No. 113 (Du Pont III), to leverage companies into difficult post-expiration disputes over “changes” to the terms and conditions of employment. Last week, the Board returned to a common sense approach to past practice during contract negotiations.

Federal Court: NLRB Correct That Successor Employer Must Bargain with Existing Union under Labor Law

In the first test of the National Labor Relations Board’s 2011 “successor bar” rule, the federal appeals court in Boston has upheld the NLRB’s decision that the union is protected from decertification after a change of ownership at the unionized company for at least six months. National Labor Relations Board v. Lily Transp. Corp., No. 15-2398 (1st Cir. Mar. 31, 2017).

You Said It, Now We’re Going to Hold You to It! Hospitals Estopped From Asserting Disqualification Argument

In theory, it is not an unfair labor practice to refuse to negotiate with a union engaged in competition with the employer—unless, of course, the employer gave the union other reasons for refusing to negotiate

Notice and Opportunity to Bargain: What Newly Organized Employers Must Do Before Imposing Discipline

Notwithstanding Member Miscamarra’s detailed dissent showing the majority’s flawed reasoning and departure from long-standing precedent, the National Labor Relations Board (NLRB) recently imposed new bargaining obligations on recently organized employers that changes current law. In Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (August 26, 2016), the NLRB ruled that an employer in first contract bargaining with a recently certified or recognized union must provide “notice and the opportunity to bargain” to the union prior to imposing discretionary discipline on individual employees unless the parties otherwise have agreed to a disciplinary process. This new obligation will apply prospectively. . This decision effectively reaffirms the NLRB’s earlier decision in Alan Ritchey, Inc., 359 NLRB 40 (2012), which had been invalidated by the Supreme Court’s decision in National Labor Relations Board v. Noel Canning, 134 S.Ct. 2250 (2014).

Newly Organized Employer Must Bargain Over Discretionary Employee Discipline Pre-First Contract, NLRB Rules

Prior to entering into a first contract, an employer has a statutory obligation to bargain with the union that represents its employees before imposing discretionary “serious discipline” (such as suspension, demotion, or discharge) on any of those employees, the National Labor Relations Board again has held. Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (Aug. 26, 2016).

NLRB: Failure to Bargain Over Non-Compete Agreement Violated NLRA, But Confidentiality Provision Lawful (Surprise!)

A company’s requirement that new employees represented by a union sign a non-compete and confidentiality agreement (NCCA) as a condition of employment violated the National Labor Relations Act because the NCCA is a mandatory subject of bargaining that could not be unilaterally implemented, the NLRB has held. Minteq International, Inc., 364 NLRB No. 63 (July 29, 2016). However, contrary to its recent inclinations, the Board also found that an individual provisions of the NCCA – concerning confidential information – was lawful.

D.C. Circuit Affirms NLRB’s Order to Employer to Reimburse All of Union's Bargaining Expenses as Remedy for Unfair Labor Practices

In HTH Corporation v. NLRB, the U.S. Court of Appeals for the D.C. Circuit rejected the National Labor Relations Board’s attempt to expand the remedies under the National Labor Relations Act for unfair labor practices to include an award of litigation expenses (attorneys’ fees and costs). In Camelot Terrace, Inc. and Galesburg Terrace, Inc. v. NLRB, decided June 10, 2016, the court again rejected the Board’s award of litigation expenses, relying on its decision in HTH Corp. However, the court affirmed the Board’s order that Camelot Terrace, Inc. and Galesburg Terrace, Inc. (the Companies) reimburse the bargaining expenses incurred by the Service Employees International Union (SEIU) as an appropriate remedial measure for having engaged in bad faith bargaining with the union, addressing the question directly for the first time.

NLRB Requires Employer to Bargain with Union over Unilateral Use of Temp Agency Employees and E-Verify

An Administrative Law Judge of the National Labor Relations Board recently ruled that a meat processing company had violated provisions of the National Labor Relations Act when it utilized a temporary employment agency to fill vacant bargaining unit positions, and enrolled in the E-Verify program without first adequately notifying or bargaining with the local union. The Ruprecht Co., Nos. 13-CA-155048, 13-CA-155049, 13-CA-156198 and 13-CA-158317, JD(NY)-14-16 (May 13, 2016).

Company’s Property Rights Can be Trumped by Safety Concerns, Federal Court Rules

Enforcing a National Labor Relations Board order, the federal appeals court in Chicago has held an employer unlawfully denied a union safety specialist access to its facility to examine the site of a fatal accident (the cause of which had not been determined) involving a bargaining unit employee. Caterpillar Inc. v. NLRB, No. 14-3528 (7th Cir. Oct. 2, 2015).

Appeals Court Upholds Board Finding of Failure to Bargain over Job Relocation

The D.C. Circuit recently enforced the National Labor Relations Board’s January 3, 2012 order holding that an automotive dealership had violated Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act by failing to bargain with the union about the effects of the relocation of a group of mechanics. Dodge of Naperville, Inc. and Burke Automotive Group, Inc., 357 NLRB No. 183 (D.C. Cir. Aug. 4, 2015). The ruling highlights the risks employers face by failing to engage in effects bargaining where required and by unlawfully withdrawing recognition from a union even if such withdrawal is simply “premature.”

NLRB Judge Decides Employer Not Required to Agree To Union Security or Dues Checkoff Provisions in Initial Collective Bargaining Agreement

An administrative law judge of the National Labor Relations Board has rejected the contention of the NLRB’s General Counsel that an employer bargained in bad faith by refusing to agree to the union’s “union security” (requiring all employees to join the union) and “dues checkoff” (requiring employees to have their union dues deducted from their paychecks) proposals during bargaining over an initial contract, despite failing to specifically explain to the union why. Apogee Retail, NY, LLC d/b/a Unique Thrift Store, JD (NY)-31-15 (July 30, 2015).

NLRB ALJ Follows Invalidated NLRB Decision on Bargaining about Discipline

Although the National Labor Relations Board’s 2012 decision in Alan Ritchey, Inc., 359 NLRB No. 40 was invalidated by the United Supreme Court in Noel Canning v. NLRB (2014) because of improper Board recess appointments, an NLRB Administrative Law Judge has decided to follow the “principles” contained in Alan Ritchey anyway, concluding that during the period between the union’s certification or recognition and the parties’ first collective bargaining agreement, an employer whose employees are represented by a union must bargain with the union before imposing discretionary discipline. Kitsap Tenant Support Services, Inc., JD(SF)-29-15 (July 28, 2015)

NLRB Upholds Unilateral Changes in Negotiated Employee Benefits

In an era when the National Labor Relations Board seldom finds actions by employers to be reasonable, that agency recently issued two decisions finding that a unilateral change in employee benefits provided under a collective bargaining agreement was consistent with the agreement and therefore lawful. American Electric Power, 362 NLRB No. 92 (2015); Bay Area Healthcare Group dba Corpus Christie Medical Center, 362 NLRB No. 94 (2015).

Second Circuit Reminds NLRB of Difference Between “Inability” to Pay and “Unwillingness” to Pay

An employer that during union contract negotiations denies a union contract demand, based on an “inability to pay” the cost of the demand, must produce its financial records if so requested by the union. The Second Circuit Court reversed the National Labor Relations Board’s (“Board”) recent decision and held that an employer’s statements that increased labor costs could cause its owner to withdraw funding and put the company at a disadvantage, did not constitute a claim of “inability to pay.” SDBC Holdings Inc. f/k/a Stella D’oro Biscuit Co., Inc. v. NLRB. Without a specific claim of “inability” to pay, the employer had no duty to provide the financial statements the union requested.

Second Circuit Reverses NLRB and Clarifies Employer Duty to Provide Financial Information During Bargaining

On March 28, 2013, the United States Court of Appeals for the Second Circuit issued a decision in SDBC Holdings Inc. f/k/a Stella D’oro Biscuit Co., Inc. v. NLRB which held that an employer is not obligated to provide a union with copies of a financial statement, unless, it takes the position during bargaining that it is unable to pay any increased wages. This ruling is highly critical of the reasoning used by the National Labor Relations Board (NLRB). It is an important decision for employers in this circuit on the subject of an employer’s duty to provide financial information and on the subject of impasse and implementation of the final offer.

NLRB Requires Employers to Continue Dues Check Off Following Expiration of CBA

A recent decision of the National Labor Relations Board continues its trend of issuing rulings favorable to unions. The Board, on December 12, 2012, held in WKYC-TV, Inc., 359 NLRB No. 30, that, after a collective bargaining agreement expires, employers must continue to deduct union dues from employee wages and forward those dues to the union.

Thinking About A Different World Under the NLRA

I have been quite busy lately but finally began catching up on some past reading and one of the first things was the most recent edition of the ABA Journal of Labor and Employment Law, Fall 2011, and its first article, Imagine a World Where Employers are Required To Bargain with Minority Unions by Catherine Fisk and Xenia Tashlitsky.

It's Not EFCA, But for Some Cities It Might Be Worse.

Because today, Senate Majority Leader offered the Public Safety Employer-Employee Cooperation Act as an amendment to the Supplemental Appropriations Act that is being considered by the Senate. The amendment (number 4147) could be voted on as early as tomorrow.
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