Management & Labor Report Blog

https://laborlaw.foxrothschild.com/

Andrew is a frequent contributor to Management & Labor Report, a blog that focuses on trends and developments in labor law. Andrew and his co-authors cover 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 Coronavirus and Unionized Employees: Issues Options and Strategies Private sector employers with unionized employees and even non-union employees must be especially careful when addressing certain workforce concerns connected with the coronavirus outbreak.  Below, we will address common issues that may arise in union facilities during this crisis. Analyze the Contract Before Making Changes to the Workforce If there is a current collective bargaining agreement (CBA), it may provide the employer with the authority to make workplace changes, such as reducing schedules or laying off employees, to address the crisis. Even if the... More
  • NLRB Corrects Defect in Withdrawal of Union Recognition Doctrine Employers have been privileged to withdraw recognition of a union when presented with objective evidence that the union has lost majority support of employees, but have faced significant legal risks in doing so under NLRB precedent.  Some of this legal risk has been mitigated by the NLRB’s decision in Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019).  This decision not only clarifies some aspects of the law in this area, but also presents a new framework for addressing the issue... More
  • NLRB Delays Implementation of Election Rule Changes Due to the coronavirus outbreak, the NLRB has delayed its roll out of amendments to the “quickie” election rules, which we discussed in a previous post.  Instead of becoming effective on April 16, 2020, the rule changes will now be effective on May 30, 2020.  The scope of the crisis caused by the coronavirus outbreak may require further delays.  Stay tuned. Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.... More
  • NLRB modifies rule concerning workplace changes For many years, the NLRB has required evidence of a “clear and unmistakable” waiver by unions of the duty to bargain with management over workplace changes.  Now, after prodding from some Courts of Appeals, the NLRB has changed its standard: employer changes to workplace conditions will only require evidence that the change is “covered” by a collective bargaining agreement.  This means that the NLRB will not require hyper-specific language or other types of evidence to find a bargaining waiver on... More
  • NLRB Makes Significant Changes to “Quickie” Election Rule The National Labor Relations Board recently scaled back the 2015 “quickie” election rule, which had sped up the timelines for conducting union elections.  Speeding up the process provided an advantage to unions by setting short deadlines that often ambushed employers, leaving them with limited time to react to the election petition.  The new rule offers welcome relief to employers and adds more time to address pre-election issues. The new rule modifies the 2015 “quickie” election rule in the following significant ways: Pre-Election... More
  • NLRB may revisit the limits of profane employee speech protected by federal labor law While it may come as a surprise, the NLRB has long held that employees are sometimes entitled to use profane language while engaging in labor activities.  In recent years, the Board has found that employee speech was protected where: An employee posted online that his supervisor was a “NASTY MOTHER F**KER don’t know how to talk to people!!!!!! F**k his mother and his entire f**king family!!!!” while also noting an upcoming union election. An employee used racist language while on a picket... More
  • NLRB Rejects Clause Mandating Arbitration of All Disputes The National Labor Relations Board recently invalidated an arbitration agreement that would require employees to arbitrate all “all claims or controversies” with their employer, holding that such a provision would unlawfully restrict employees’ access to the Board to adjudicate labor disputes. The Board’s decision in Prime Healthcare could reverberate widely because the language it declared invalid is particularly common in arbitration agreements. In the ruling, the Board revisited a topic on which it has previously found itself at odds with the U.S. Supreme Court. In... More
  • Scabby the Rat memo signals possible change to NLRB precedent on secondary activity Federal labor law protects neutral (secondary) employers from becoming entangled in labor disputes between another (primary) employer and unions.  For most of the past decade, however, the NLRB has allowed unions to set up various displays – including an inflatable rat (otherwise known as “Scabby”) and an inflatable “fat cat” – near neutral employers’ premises or work sites with relative impunity. A recent memo from the NLRB’s Division of Advice signals a change in position of the Board’s prosecutorial arm.  The... More
  • Uber Drivers are Contractors, Not Employees, According to NLRB’s Chief Lawyer Since the emergence of the “gig economy” in the last decade, courts and government agencies have grappled with the question of whether gig workers should be classified as employees or contractors.  The answer to that question has enormous consequences for employee coverage under various federal and state employment laws, ranging from anti-discrimination statutes like Title VII to wage-and-hour laws like the Fair Labor Standards Act.  Generally, these laws usually only cover employees, and exclude contractors. The National Labor Relations Board, which... More
  • NLRB: Individual Complaints Are Not Protected By Labor Law Employee complaints must be “concerted” to enjoy the protections of federal labor law.  This requirement, contained in the language of the NLRA, stems from the collective nature of rights guaranteed by the NLRA, which ensure protection for union activity or activity that is made for “mutual aid or protection.”  Despite rather clear statutory language, the labor bar has debated the meaning of “concerted” for many decades and the NLRB’s case law has alternated between restricted and expansive definitions over time. In... More