Labor & Employment

Labor Management Relations

Management & Labor Report Blog

Management & Labor Report is a blog that focuses on trends and developments in labor law. The primary focus is cases before the National Labor Relations Board (NLRB) and the federal courts that have the potential for setting new precedents or modifying existing precedent. Authored by attorneys in Fox Rothschild’s Labor Management Relations practice group, the blog provides insights and analysis of decisions that could potentially have an impact beyond the parties involved. Topics covered include collective bargaining, the relationship and interactions between an employer and union, union elections and other workplace conduct as it applies to both union and non-union settings.

Recent Blog Posts

  • Undergraduate Resident Advisors May Possibly Unionize…For Now Undergraduate resident advisors usually wield a lot of power over university residence halls and those who occupy them. You likely know this already if you were ever a college freshman living in the dorms and received a write-up or warning from your RA. But, for those who do not know, RAs – who are often only slightly older than the college students they oversee – are essentially there to supervise their peers living in dorms and make sure nothing (too)... More
  • The NLRB Returns to BFI By a brief Order announced on February 26, 2018, the NLRB overturned its precedent on joint employer for the second time in a span of almost two months. Specifically, the Board vacated the decision Hy-Brand Contractors Ltd., 365 NLRB No. 156 (2017), which, in turn, had overruled the joint employer standard announced in Browning Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”). By vacating Hy-Brand, the Board has returned to a joint employer standard based not only on “direct” control... More
  • Strike and You’re Out…of the Country Sometimes, using only one word can make all the difference between a lawful and unlawful statement. Washington University in Saint Louis learned this lesson the hard way when in late October 2017 Associate General Counsel for the NLRB’s Division of Advice Jayme L. Sophir instructed Region 14 to issue complaint, absent settlement, against the University. The Advice Memorandum, released to the public on February 15, 2018, found the University violated Section 8(a)(1) of the Act by threatening foreign graduate students with... More
  • Columbia University: Employee or Not Employee – That is the Question? Graduate students at most private universities have been allowed to unionize since the 2016 decision of the NLRB in Columbia University.  This decision was controversial because the employee status of graduate students has flip-flopped over time, depending on whether members appointed by Democratic or Republican Presidents controlled the Board.  Since 2016, the makeup of the Board has shifted from a Democratic majority to Republican control.  While Democratic appointees generally support the notion that graduate students should be considered employees, Republican... More
  • “Better Late than Never” Does Not Apply When Conducting a Union Election On February 2, 2018, a split three-member Board panel held that a prior election won by a union must be vacated and, accordingly, ordered a second election as it found merit to the employer’s objection arguing that the tardiness of the Board Agent conducting the election potentially disenfranchised a dispositive number of eligible voters. In February 2017, employees at Bronx Lobster Place LLC voted in favor of unionization by a narrow margin of 14-12. There were 4 eligible voters that did... More
  • Second Times the Charm? The NLRB Permitted Another Chance to Analyze Restaurant’s Work Rules On January 29, 2018, the DC Circuit remanded a 2016 NLRB decision – Grill Concepts Servs., Inc., 364 NLRB No. 36 (2016) – back to the Board for reconsideration of several employee handbook violations found unlawful under the now-replaced Lutheran Heritage standard in light of the Board’s new standard recognized in Boeing Co., 365 NLRB No. 154 (2017). As explained in a previous Alert, the prior standard considered work rules unlawful if employees would “reasonably construe” them to interfere with union or other protected concerted... More
  • Farewell to Micro-Units In PCC Structurals, Inc., the NLRB overruled its 2011 Specialty Healthcare decision, which allowed for unions to organize employees in so-called “micro-units.”  Now, the Board has returned to its traditional, multi-factor “community of interest” test. The term “micro-unit” refers to a segment of employees that have been separated from a larger group of employees who share similar interests (based on compensation, hours, benefits, supervision, training and skills, interchange with other employees, etc.).  These “micro-units” have been criticized for creating unnecessary distinctions... More
  • Employers Rejoice: The Board Will Soon Have a Republican Majority Again On January 12, 2018, President Trump nominated Morgan Lewis & Bockius partner John Ring to fill the last vacancy on the five-member Board and, if confirmed by the Senate, this will once again give Republicans a 3-2 majority on the panel after the departure of former Board Chairman Philip A. Miscimarra in December 2017. Mr. Ring, a career management-side attorney, will bring decades of skill and experience to the Board, and will help to restore balance to the NLRB after... More
  • Return to the Pre-BFI Joint Employer Standard and Moving Forward Hy-Brand Industrial Contractors – the recent Board case overturning Browning Ferris Industries and restoring the previous joint employer standard – was perhaps the most important decision among the many decided prior to former Board Chairman Miscimarra stepping down in late 2017; but the decision may not be as significant for all. As explained in an earlier Alert, the Republican-controlled Board returned to the pre-BFI standard in place for decades and once again found that joint employer status depends on whether entities have “direct and immediate”... More
  • Trump NLRB Gives Employers a Little More Leeway in Maintaining Work Rules The National Labor Relations Board has ruled that an employer does not necessarily violate the National Labor Relations Act by maintaining a facially neutral work rule, policy or handbook provision that could be reasonably construed to interfere with union or other protected concerted activity protected under Section 7. The 3-2 decision in The Boeing Company, handed down on Dec. 14, overrules Lutheran Heritage Village-Livonia, in which the NLRB declined to consider the employer’s justification for a facially neutral rule or the extent... More