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

  • The Potential Preemption Problem With Ride-Sharing Driver Unionization With campaigns ongoing across the country aimed at raising the minimum wage at a state and local level, one might wonder, why not apply the same pressure on local governments to create their own labor laws? The battle between Uber and the City of Seattle demonstrates the complexities surrounding any attempt to regulate labor relations on a local level. In 2014, the Seattle City Council passed an Ordinance allowing for ride-sharing drivers, who are classified as independent contractors, to form unions... More
  • Management Bar: an NLRB Administrative Law Judge Has Recently Found Certain Workplace Rules Lawful…Surprised? The Obama Board did not pull any punches when it came to analyzing the lawfulness of workplace rules. Still, as previously blogged about here, a more balanced approach to workplace rules may – hopefully – be on the horizon. On October 19, 2017, the ALJ in Green Apple Supermarket of Jamaica, Inc., issued a decision wherein he found, among other various Section 8(a)(1), (3), and (5) violations, that the employer did not violate Section 8(a)(1) by maintaining and promulgating overly... More
  • The Ninth Circuit Supports the Board’s Revised Deferral Standard Under Babcock & Wilcox The Ninth Circuit, a historically employee-friendly court, recently issued a decision that backs the NLRB’s revised post-arbitral deferral standard laid out in its December 15, 2014 Babcock & Wilcox decision. This Board decision was previously blogged about here. On Tuesday, October 17, 2017, the Court affirmed the Board’s decision to apply its new deferral standard only prospectively and upheld the denial of the petitioner’s unfair labor practice complaint as it was analyzed under the previous more deferential standard. In doing so, the... More
  • Predicting the Supreme Court’s Decision on Class Waivers in Employment Arbitration Agreements Is Somewhat More Accurate than Reading Tea Leaves Earlier this month, the U.S. Supreme Court heard oral arguments on whether employment agreements that require an employee to resolve a dispute with her employer through individual arbitration and waive the option of having the dispute handled collectively is unlawful. In D. R. Horton, 357 NLRB No. 184 (2012), the NLRB first held that arbitration agreements requiring employees to forfeit their right to proceed collectively violate Section 8(a)(1) of the Act. The waiver of the right to proceed collectively is termed... More
  • Senate Narrowly Confirms Final Trump Board Appointee Giving Republicans a Majority for the First Time in Nearly a Decade On Monday, September 25, 2017, the Senate confirmed, in a 49-47 vote, the appointment of longtime management-side attorney William J. Emanuel to the National Labor Relations Board. This confirmation fully staffs the five-member Board and gives Republicans a majority on the panel for the first time since the George W. Bush administration. Mr. Emanuel has represented employers in all facets of traditional labor and his appointment will help bring back a much needed balance to what is supposed to be... More
  • NLRB Rules That Workplace Recording Prohibitions Are Unlawful Now that most, if not all, employees have smartphones with cameras in their pockets at all times, some employers have prohibited recording in the workplace. However, recent decisions by the National Labor Relations Board (“NLRB” or “the Board”) have found that “no recording” policies are illegal under the National Labor Relations Act (“the Act”). In fact, one case was upheld by a federal circuit court of appeals. Whole Foods Mkt. Grp. Inc. v. NLRB, Civ. 16-0002 (2nd Cir., June 1,... More
  • Workplace Civility Rules Aren’t Dead — Just on a Lifeline The National Labor Relations Board (“NLRB” or “Board”) has taken a jaundiced view of employer policies that require respect and civility in the workplace over the past several years. The Board has found such rules generally interfere with employees Section 7 rights and thereby violate Section 8(a)(1) of the National Labor Relations Act (“the Act”). Fortunately, the Fifth Circuit Court of Appeals (“the Court”) takes a more holistic view of civility rules. In T-Mobile USA, Incorporated v NLRB, No. 16-60284... More
  • NLRB Unlikely To Overrule Any Controversial Obama-Era Decisions Until 2018 I hate to sound unduly pessimistic, but any hopes you had of relief from unduly labor-friendly National Labor Relations Board (“the Board”) precedent this year will likely not happen because President Trump will likely not have a business-friendly majority on the five member Board until sometime early next year and a General Counsel willing to bring appropriate cases to overrule more controversial Obama Board precedent. After months of inaction, the President nominated Marvin Kaplan and William Emmanuel to fill the two... More
  • The D.C. Circuit Issues an Ultimately Uneventful Decision on Joint Employer The issue of joint employer has been frequently discussed in the labor & employment law circles, and even the media, since the National Labor Relations Board (“NLRB” or “the Board”) issued its 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015). The issue has had so much attention that a bill, H.R. 3441, has been introduced in the Republican dominated Congress to overturn the decision before the appellate courts rule on the legality of the NLRB’s reinterpretation of the... More
  • Employee Committee or Unlawful “Company Union?” Employers might think it wise to seek input from employees about working conditions, but they must tread carefully to make sure that they do not violate the National Labor Relations Act’s (“NLRA” or “the Act”) prohibition on “company unions.” An Administrative Law Judge (“ALJ”) of the National Labor Relations Board (“NLRB” or “the Board”) found in T-Mobile USA, Inc., 14-CA-170229 (April 3, 2017) that the company violated the NLRA by setting up an “employer dominated organization” at its call centers. In... More