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

  • 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
  • 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