Recent Blog Posts
- Tie Goes to the Employer: National Labor Relations Board Overrules Past Precedent Regarding Dual-Marked Ballots The National Labor Relations Board (“Board” or “NLRB”) on Wednesday, May 13, 2020, overruled decades of convoluted Board precedent regarding “dual-marked ballots” in union representation elections – establishing a new bright line test. A “dual-marked ballot,” to put it simply, is a ballot that has markings in or around both the “YES” and “NO” box, thus, making it difficult, if not impossible, to tell whether the employee who cast the ballot actually intended to vote for or against union representation.... More
- NLRB Finalizes Three Amendments to Election Procedures, Continuing Rulemaking Agenda On the heels of guidance regarding when the duty to bargain may be suspended or modified during the COVID-19 pandemic, the National Labor Relations Board (“NLRB” or “Board”) finalized rulemaking today that changes three aspects of the Board’s representation election procedures (“Final Rule”).
The Final Rule overhauls the handling of unfair labor practice charges commonly referred to as “blocking charges” when a petition for an election is pending, revamps the Board’s voluntary recognition bar doctrine, and changes the evidentiary requirements for... More
- Shhh – CARES Act Hush Money Loans Require Desperate Employers Not to Oppose Unionization In the chaos of a global health pandemic and what some economists are calling the Great Suppression, Americans have shown amazing solidarity in the battle against the coronavirus (“COVID-19”). Nationwide, citizens are social distancing and staying home while businesses are closing their doors and redeploying their resources to meet emergent demands. However, this collective American commitment has come at a steep economic cost. Millions of Americans suddenly find themselves unemployed or unable to work while previously thriving businesses have been... More
- New NLRB Rule Defining Joint-Employer Status to Take Effect The National Labor Relations Board has announced the issuance of its final rule governing joint-employer status. The new rule, which was first proposed in September 2018 and has been the subject of extensive public comment, will become effective April 27, 2020.
The critical elements for finding a joint-employer relationship under the new rule is the possession and the exercise of substantial direct and immediate control over the terms and conditions of employment of those employed by another employer. The essence of... More
- California Puts a Foot On the Scale to Drive Unionization Higher: AB 1291 Mandates State-Sponsored Assistance in Organizing Cannabis Employees As private sector unionization rates have continued to fall over recent decades, organized labor has increasingly turned to the state and local politicians it supports for assistance in the form of state legislation and local ordinances imposing burdens on employers and aid to unions, while depriving employees of the process and balance intended by the National Labor Relations Act (“NLRA”). These often come in the form of “Labor Peace” requirements which mandate employers enter into agreements with unions that do... More
- NLRB’s General Counsel Signals Major Shift in Neutrality Agreement Between Employers and Unions Seeking to Organize Their Employees The General Counsel for the National Labor Relations Board (“Board” or “NLRB”) has signaled what may be a major resetting of the law on the Board’s position concerning the legality of so called neutrality agreements, in which employers make concessions and accommodations to labor unions seeking to organize and represent their employees. This occurred with the General Counsel’s consideration of an appeal by the National Right to Work Legal Defense Foundation, Inc. (the “Fund”) of a dismissal of an unfair... More
- NLRB Solidifies Boeing and Provides Guidance on Employer Workplace Rules As discussed in previous blog posts and articles, the National Labor Relations Board (NLRB), in Boeing Co., overruled past precedent that had resulted in the invalidation of “commonsense [workplace] rules and requirements that most people would reasonably expect every employer to maintain.” Boeing sought to return the analysis to a more balanced approach in which workplace rules would no longer be struck down simply because such rules could have been more narrowly tailored or just because a hypothetical employee theoretically... More
- NLRB Rebalances Employers’ Rights to Prohibit Union Solicitation on Their Property Last Friday, the National Labor Relations Board (“NLRB”) in UPMC overturned 38-year old precedent and held that employers may lawfully prohibit non-employee union solicitation in public spaces on their property absent evidence of discriminatory enforcement. This ruling may seem like common sense to many as employers have long been permitted to control what types of activities occur on their private property in other contexts. However, for the past four decades, the NLRB has compelled employers to allow non-employee union organizers to... More
- NLRB Proposed Rule Will Redefine Joint-Employer Status –Rule Will Overrule Browning-Ferris and Require “Direct and Immediate Control” The National Labor Relations Board has announced publication of a proposed rule that will establish a new and far narrower standard for determining whether an employer can be held to be the joint-employer of another employer’s employees. The rule described in the Notice of Proposed Rulemaking published in the Federal Register on September 14, 2018, will, once effective essentially discard the Board’s test adopted in Browning-Ferris Industries (“Browning-Ferris”) during the Obama Administration, which substantially reduced the burden to establish that separate employers... More
- Supreme Court Holds Requiring Public Sector Employees to Pay Representation Fees Is Unconstitutional – Violates Government Employees’ First Amendment Rights In its long awaited decision in Mark Janus v. American Federation of State, County and Municipal Employees, the United States Supreme Court clearly and unequivocally held that it is a violation of public employees’ First Amendment rights to require that they pay an “agency fee” to the union that is their collective bargaining representative, to cover their “fair share” of their union representative’s bargaining and contract enforcement expenses. The Janus decision overturns the Court’s own 1977 decision in Abood v. Detroit... More