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The NLRB's 2014 Initiatives

The National Labor Relations Board’s (NLRB or Board) General Counsel, Richard Griffin, issued a memorandum (GCM 14-01) in late February to the Board’s Regional Directors highlighting legal issues the Regions are required to submit to the Board’s Division of Advice. The General Counsel’s memorandum allows a glimpse into the crystal ball to see how the NLRB will chart its course for the upcoming year. Although some of the destinations are expected (e.g., a return to the applicability of Weingarten rights to non-union employees), others represent an aggressive policy of furthering the Board’s pro-labor agenda. If the General Counsel succeeds in advancing his agenda, dramatic changes are on the horizon for employers.

UAW Puts Brakes on Objections to Volkswagen Election Just Before Hearing - Avoiding Crash Into First Amendment?

The United Auto Workers Union yesterday served notice of withdrawal of its objections to the National Labor Relations Board election conducted in February at Volkswagen's plant in Chattanooga, Tennessee, which means that the employees' vote to reject UAW representation will stand. More importantly, the withdrawal means that the NLRB will be able to avoid what promised to be some sticky First Amendment issues.

NLRB Considers Radical Changes to Decades-Long Precedent on Deferral to Arbitration

In yet another attempt to expand protection for employees under Section 7 of the National Labor Relations Act, the National Labor Relations Board (NLRB) is considering a new standard for deferral to labor arbitration that, if adopted, would significantly undermine the finality of arbitration in cases involving allegations arising under Sections 8(a)(1) and (3) of the Act. This proposed change follows recent guidelines issued by the General Counsel instructing NLRB regional offices not to defer unfair labor practice charges unless the issues can be resolved through grievance and arbitration within a year of deferral. In combination, these initiatives will likely result in increased litigation of unfair labor practice charges and employers being forced to relitigate grievances that have been denied under the collective bargaining agreement.

NLRB Invalidates Non-Union Workplace Policies Prohibiting Negativity and Gossip

In two recent decisions, the National Labor Relations Board (NLRB) held that non-union employer policies prohibiting negativity in the workplace are unlawful under the National Labor Relations Act (the Act). These decisions follow the NLRB's recent pattern of carefully scrutinizing non-union workplace policies for language that employees could reasonably construe as limiting their right to engage in "concerted activities for their mutual aid and protection."

Handbook’s prohibition on “negative comments” about team members found to have violated the NLRA.

Like many employers, Hills and Dales General Hospital’s employee policies included provisions prohibiting “negative comments” about fellow team members, and precluded engaging in “negativity or gossip.” The policies further included a requirement to represent the hospital within the community “in a positive and professional manner in every opportunity.”

Meet Illinois’ Newest Power Couple: NLRB Region 13 and Illinois DOL Enter Into Formal Cooperation Agreement; NLRB Softens Strict Default Judgment Language, Gives Regions More Discretion

The past few weeks have brought potentially important developments for employers at both the local and national level. First, in Chicago, the Regional Director for Region 13 of the National Labor Relations Board, Peter Sung Ohr, and the Director of the Illinois Department of Labor (DOL), Joseph Costigan, recently signed a Memorandum of Understanding (MOU) to strengthen cooperation and collaboration between the two agencies. Under the MOU, the agencies have agreed to refer charges to each other if they receive information while processing a case that may be within the jurisdiction of the other agency, if the individual consents to the referral. The MOU also provides for cross-training between the two agencies and procedures for sharing information “where appropriate.”

Adjuncts and Athletes: Unions and the Academy

College administrators, coaches, and many of the rest of us were surprised to learn that scholarship football players at Northwestern University are “employees” for purposes of the National Labor Relations Act and thus may vote on representation by the College Athletes Players Association, affiliated with the United Steelworkers. The final chapter on this decision—currently applicable to private institutions and scholarship athletes—won’t be written until the appeals have been exhausted and similar claims have been litigated.

Ogletree Deakins’ Founding Shareholder Homer Deakins Presents Testimony to NLRB on Historic Election Rule Proposal

Over 50 speakers testified, some of them on multiple panels, during the National Labor Relations Board’s two-day public meeting on representation election (“R-Case”) procedures on April 10-11. The oral testimony was part of the notice of proposed rulemaking (NPRM) on the Board’s proposed revisions to its union representation election procedures, which employers refer to as the “ambush” election rules. The comment period for the rule expired on April 7, 2014.

House Committee Advances Bills Seeking to Block NLRB Election Rule

During a Wednesday markup session, the House Committee on Education and the Workforce voted along party lines in favor of sending to the House floor two bills that would effectively prevent the National Labor Relations Board from moving forward with its proposed expedited or “ambush” election rule in its current form. According to Chairman John Kline (R-MN), the two bills “provide an appropriate government response” to the Board’s proposed rule.

Littler Shareholders Maury Baskin and Michael Lotito Testify at NLRB Public Meeting

Nearly 50 speakers have or are slated to testify during the National Labor Relations Board’s 2-day public meeting on the proposed expedited or “ambush” election rule. The Board sought input on approximately 20 different issues stemming from the proposed rule, which would make significant changes to pre- and post- representation election process. Among the speakers were Littler Shareholders Michael Lotito and Maury Baskin, who testified specifically about the proposal’s expedited timing of the pre-election hearing; the requirement that an employer identify all potential bargaining unit issues in its statement of position or forever waive them; the types of matters that should be resolved at the pre-election hearing; and how the rules should address voter lists. A live stream of the public meeting – which is scheduled to run through 4:30 today – can be viewed here.