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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.

Employers Wise to Review Employee Confidentiality Policies as Fifth Circuit Upholds NLRB’s Invalidation of Overly Broad Provisions

It has been a difficult last few years for the National Labor Relations Board (NLRB). Not only are hundreds of decisions of the agency in limbo due to a Supreme Court challenge involving President Barack Obama’s purported recess appointment of several members of the agency while the U.S. Senate was still convening in regular pro forma session, but several of the agency’s rulings have been invalidated by various Circuit Courts of Appeal. The board recently managed to win one, however, as the U.S. Court of Appeals for the Fifth Circuit upheld a board decision that a company’s employee confidentiality policy was an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). The case serves as a reminder to employers to review their own employee confidentially policies.

Recent Board Cases Reach Different Results in Review of Employer Work Rules

A trio of recent cases highlights the National Labor Relations Board’s current focus on employer work rules and conduct policies. Under Section 8(a)(1) of the National Labor Relations Act, workplace rules that “explicitly restrict” an employee’s exercise of protected concerted activity are unlawful. Even workplace rules that do not explicitly limit employees’ rights may be illegal if employees reasonably would understand the rules to prohibit such activity. The NLRB’s two-member Republican minority and its three-member Democrat majority differ sharply on that point.

NLRB Hearing Tomorrow on Election Rules

As previously discussed here, the NLRB recently announced that it is taking another shot at speeding up union elections.

NLRB Clarifies Lawful Weingarten Representation Activity and Permissibility of Unilaterally Requiring Interviewees to Attest to the Veracity of Investigatory Interview Notes

On March 25, 2014, the National Labor Relations Board affirmed the Administrative Law Judge’s ruling that an employer violated various sections of the National Labor Relations Act by engaging in retaliatory acts against an employee for his conduct in representing a coworker at an investigatory interview, and by unilaterally adopting a requirement that employees certify the veracity of investigative interview notes. Murtis Taylor Human Services Systems, 360 NLRB No. 66 (Mar. 25, 2014).

National Labor Relations Board Invalidates Hospital's Values and Standards of Behavior Policy

The National Labor Relations Board (the Board) recently issued yet another decision invalidating common handbook policies and work rules. This case is the most recent in a long series of cases striking down common rules governing employee conduct. In Hills and Dales General Hospital, 360 NLRB No. 70 (Apr. 1, 2014), the Board held that three provisions in a non-union hospital’s Values and Standards of Behavior Policy (the Policy) were invalid on their face because employees could reasonably construe the provisions to prohibit employees from engaging in protected concerted activities.