Labor & Employment

Labor Management Relations

Management & Labor Report Blog

https://laborlaw.foxrothschild.com/

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

  • WATCH THE PENDULUM SWING – NLRB’S ACTING GC ROLLS BACK PREDECESSOR’S GUIDANCE MEMORANDA NLRB Acting General Counsel Peter Ohr is moving swiftly to put his stamp on national labor policy.   Last week, my partner Andrew MacDonald blogged about Ohr’s withdrawal of a complaint that had challenged the use of a neutrality agreement by an employer and a union.  Ohr also rescinded several General Counsel Memoranda issued by his predecessor that, according to Ohr, were “inconsistent” with national labor policy.   While the none of the withdrawn memoranda were particularly critical to employers’ labor relations... More
  • Acting NLRB GC Withdraws Neutrality Agreement Complaint In his first few days on the job, Acting General Counsel of the NLRB Peter Sung Ohr has withdrawn a complaint that had challenged the use of a neutrality agreement by an employer and union.  This early move by the Acting GC indicates the direction that he will take in attempting to change the course of labor law during the Biden Administration. In general, a neutrality agreement contains a promise from the employer to remain neutral during a union organizing drive in... More
  • Radical Change at the NLRB – Employers Beware In an unprecedented action that delighted organized labor but sounded alarm bells for employers, in one of his first acts, President Biden  fired the General Counsel and Deputy General Counsel of the National Labor Relations Board.   On January 25, the White House appointed Peter Sung Ohr to serve as Acting General Counsel.   Mr. Ohr long has served as the Regional Director of the Board’s Chicago office and is perhaps best known for his controversial decision several years ago that scholarship... More
  • Are Union Neutrality Agreements Unlawful? The NLRB’s General Counsel recently issued a memo that demonstrates his hostility toward neutrality agreements.  Generally, neutrality agreements contain a promise from an employer that it will remain neutral in a union organizing campaign.  These agreements often contain other provisions, such as allowing unions access to employer property to address employees and providing unions with employee contact information.  In return, a union often promises employers that employees will not strike. Initially, it is extremely important to note that the General... More
  • Notice Posting Requirements Are – and Remain – Postponed Due to the Coronavirus Pandemic In an early May 2020 decision, the Board declared a temporary pause in charged parties (usually an employer) complying with the NLRB’s standard notice posting remedy in response to the ongoing COVID-19 public health crisis. Thereafter, on May 20, 2020, General Counsel Peter B. Robb issued GC Memo 20-06 and made this temporary change applicable to informal settlement agreements (as a notice posting is typical in such arrangements). A party that is liable for violations of the Act and/or who enters... More
  • New NLRB Case Investigation Guidelines Change How Regions Will Handle Particular Evidence and Witness Testimony On June 17, 2020, National Labor Relations Board General Counsel Peter Robb issued GC Memo 20-08 (“Memo”), providing Regional offices new directives for taking certain witness testimony and accepting audio/video recording evidence in unfair labor practice (“ULP”) investigations. First, the Memo instructs Regions allow a charged party – in most cases an employer – to be present and observe the “substantive communications” with a former supervisor or agent if that individual is now testifying against the charged party about a contested... More
  • Federal Court Affirms NLRB Ruling Limiting a Union’s Right to Employer’s Financial Information On April 29, 2020, the Ninth Circuit Court of Appeals affirmed a National Labor Relations Board decision where an employer was lawfully permitted to refuse a union’s request for financial information because it appropriately clarified its previous “inability to pay” statements and explained that it was only unwilling, not unable, to meet the union’s wage demands.  Normally, when an employer justifies its bargaining position by claiming an inability to pay a union’s demands, the union may request financial documents sufficient... More
  • The NLRB is Resuming Elections on April 6, 2020 Without Providing Guidance on Voter Safety By announcement on April 1, 2020, the NLRB resumed representation elections beginning on April 6, 2020.  Previously, the NLRB had suspended elections until April 3, 2020.  The details on elections will be decided on a case-by-case basis by the Board’s regional directors. Board Chairman John F. Ring provided the following reasons for resuming elections:  “Conducting representation elections is core to the NLRB’s mission, and ensuring elections are carried out safely and effectively is one of our primary responsibilities. Two weeks ago,... More
  • 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