The NLRB Finally Cancels Pre-Disciplinary Bargaining

By Patrick Scully In a long-awaited move, the National Labor Relations Board (“NLRB” or “Board”) overruled the Obama Board’s decision in Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016) (“Total Security“), and concluded that an employer does not have to bargain individual disciplinary decisions with a newly certified labor organization. As the […]

NLRB Finalizes Improvements to Election Rules

By Patrick R. Scully and James S. Korte On March 31, 2020, the National Labor Relations Board (“NLRB” or “Board”) finalized amendments to its election rules, improving current processes in favor of greater employee choice. New Blocking Charge Policy:  Instead of delaying or canceling a representation election when a union files a “blocking” unfair labor practice charge, the […]

EEOC Weighs In On NLRB Protections For Offensive Statements

By James Korte Recently, the National Labor Relations Board (“NLRB”) invited the public to file amicus briefs regarding the treatment of “profane outbursts and offensive statements of a racial or sexual nature.” Gen. Motors LLC & Charles Robinson, 368 NLRB No. 68 (Sept. 5, 2019). The Equal Employment Opportunity Commission (“EEOC”) accepted the invitation.                […]

The NLRB Has You Covered…By The Contract

By Patrick Scully In another stunning and sweeping decision, The National Labor Relations Board (“NLRB” or “Board”) has overturned the “clear and unmistakable” waiver test and concluded that employers may make unilateral changes to terms and conditions of employment “covered” by an existing collective bargaining agreement.  For decades, employers had negotiated lengthy “management rights clauses” […]

NLRB Enhances Its View of Property Rights

By Patrick Scully The National Labor Relations Board (“NLRB” or “Board”) has settled a long-brewing controversy over what constitutes “discrimination” with respect to non-employee access to employer property.  Twenty years ago, the Board held in Sandusky Mall, 329 NLRB 618 (1999), that an employer discriminates against non-employee union representatives if it bars them from its […]

NLRB Drums Out Musicians and “New York New York”

By Patrick Scully The National Labor Relations Board (“NLRB” or “Board”) has reversed one of the Obama Board’s most fiercely debated decisions and held that a property owner may lawfully prohibit the employees of a contractor or licensee from leafletting on its private property.  In February, 2017 San Antonio Symphony employees who were members of […]

NLRB Serves Up An Epic Ruling For Employers

By Patrick Scully In its first significant decision applying the Supreme Court’s holding in Epic Systems v. NLRB, 584 U.S. ____, 138 S.Ct. 1612 (2018), the National Labor Relations Board (“NLRB” or “Board”) ruled that a restaurant owner lawfully compelled its employees to sign a revised mandatory arbitration agreement.  The employer, an operator of Latin-themed […]

NLRB Says Organizer Access to Public Spaces is Not on the Menu

By John Alan Doran Over thirty-five years ago, the NLRB held that an employer may not prohibit a union organizer’s access to an employer’s privately owned, but publicly accessible areas, such as an employer’s public restaurant or cafeteria, unless the organizer engages in “disruptive” conduct.  A long line of subsequent Board decisions confirmed this rule.  […]

NLRB Reins In Prior Expansive View Protected Concerted Activity

By John Alan Doran “So, two guys walk into a bathroom…”  No, seriously, this case is about two co-workers who walked into a bathroom.  While in the bathroom, Employee A complained to Employee B that a former client had been dropped back in his lap, and that the former client should have been sent to […]