Total Articles: 23
Ogletree Deakins • December 26, 2017
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.
Jackson Lewis P.C. • May 01, 2017
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).
Ogletree Deakins • November 07, 2016
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
Ogletree Deakins • September 07, 2016
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).
Jackson Lewis P.C. • September 06, 2016
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).
Jackson Lewis P.C. • August 24, 2016
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.
Littler Mendelson, P.C. • June 30, 2016
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.
Jackson Lewis P.C. • May 22, 2016
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).
Jackson Lewis P.C. • October 26, 2015
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).
Franczek Radelet P.C • September 11, 2015
On August 27, 2015, the National Labor Relations Board overturned 53 years of precedent under Bethlehem Steel, and found that going forward an employer could no longer unilaterally stop deducting union dues from employee paychecks once the union contract had expired. In Lincoln Lutheran of Racine, the Board found that an employer’s obligation to honor a dues deduction or dues checkoff provision survives the expiration or termination of the collective bargaining agreement. As we noted in an earlier alert, the Board previously attempted to overrule Bethlehem Steel with its 2012 decision in WKYC-TV, Inc. That decision was later invalidated by the Supreme Court’s Noel Canning decision, and employers continued to rely on Bethlehem Steel when deciding whether to stop deducting union dues.
Littler Mendelson, P.C. • September 09, 2015
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.”
Jackson Lewis P.C. • August 07, 2015
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).
Jackson Lewis P.C. • August 03, 2015
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)
Littler Mendelson, P.C. • June 12, 2015
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).
Franczek Radelet P.C • February 18, 2015
Last week, in Ozark Auto. Distribs., Inc. v. NLRB, the D.C. Circuit rejected the National Labor Relations Board’s attempt to enforce a bargaining order against an employer who had refused to bargain with a newly certified union. The court found that during the post-election proceedings, the NLRB improperly revoked the employer’s subpoenas which sought documents concerning whether the union could be held responsible for pre-election threats to voters. The court ruled that the NLRB used “flawed” reasoning and failed to adequately balance employees’ confidentiality interests against the company’s need for the requested information.
Franczek Radelet P.C • May 28, 2014
Earlier this month, the Supreme Court agreed to review the Sixth Circuit’s decision in Tackett v. M&G Polymers USA, LLC, 733 F.3d 589 (6th Cir. 2013). The Court will resolve an existing circuit split as to how courts interpret collective bargaining agreements (CBAs) that provide for retiree health insurance benefits. The Court’s answer could have profound financial and accounting consequences for employers who may seek to change retiree health care benefits provided under bargaining agreements.
Brody and Associates, LLC • May 06, 2013
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.
Goldberg Segalla LLP • April 11, 2013
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.
Phelps Dunbar LLP • January 14, 2013
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.
Franczek Radelet P.C • December 21, 2012
Yesterday, the National Labor Relations Board announced a major reversal of policy, invalidating 50 years of precedent on an employer’s obligation to honor dues checkoff arrangements after the expiration of a collective bargaining agreement. This decision is the NLRB’s second major decision in the past three months overturning long-held understandings about employer obligations after the expiration of an agreement.
Ogletree Deakins • March 12, 2012
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.
Franczek Radelet P.C • September 09, 2011
This article analyzes the key rules under federal health care reform which are most likely to impact collective bargaining negotiations in the public sector in the future (or which may already impact current negotiations and labor relations). Part II discusses the law and its enforcement. Part III provides an overview of six key reforms and an explanation of what they mean for public sector employer group health plans. Part IV provides strategies, options, and warnings about how each of these six reforms should be considered in the collective bar- gaining process.
Ogletree Deakins • May 25, 2010
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.