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NLRB General Counsel Memo Highlights Possible Pro-Union Changes in the Law

On March 5, 2014 by Schnader in Labor and Employment

By Michael J. Wietrzychowski

From time-to-time, the NLRB’s General Counsel issues memoranda to NLRB field offices regarding cases that the General Counsel believes require serious legal review by the NLRB’s Division of Advice. These memoranda often signal the possibility that the NLRB may deviate from current legal precedent regarding these issues. On February 25, the General Counsel issued a memorandum that highlighted some of the following cases and issues that require such submission:

  • Circumstances under which a clear corporate successor is obligated to bargain with a union before setting initial terms of employment.
  • Allegations that an employer’s permanent replacement of economic strikers was done with an unlawful motive.
  • Employees’ right to use an employer’s e-mail system for union activities.
  • The employer’s duty to furnish financial information in bargaining where the employer asserts an “inability to pay” or where the employer has made more specific financial assertions and refuses to provide information in support of those assertions.
  • Denial of Weingarten rights to non-union employees.
  • Refusal to furnish information related to a relocation or other decision subject to a Dubuque Packing analysis.
  • Partial lockouts by the employer.
  • “At-will” provisions in employer handbooks that are not resolved by NLRB Advice memoranda.
  • The legality of any aspect of a “neutrality” or card check agreement or other pre-recognition agreement that is not answered by the Board’s decision in Dana Corp.
  • Rights of contractor employees who work on another employer’s property to have access to the premises to communicate with co-workers or the public, where the issues are not resolved by the Board’s decision in New York New York Hotel and Casino.
  • Mandatory arbitration agreements containing a class action prohibition that are not resolved by D.R. Horton or subsequent Advice memoranda.
  • Beck issues regarding the chargeability of job targeting program expenses, the chargeability of legislative expenses, and the chargeability of organizing expenses in complex cases.

We will be posting updates regarding these matters as they wind their way through the Board.  In the meantime, there are some actions that you can take now to ensure that you are currently in compliance:

  1. Review your policies and practices, including handbooks, to ensure that they do not run afoul of current NLRB law. Non-complying policies and handbooks, even if not enforced, can give rise to an unfair labor practice charge. Common areas of NLRB violation include policies addressing confidential information, use of and dissemination through social media of employee speech, policies against disruptive conduct, and non-solicitation policies and practices.
  2. Train your managers on the “do’s and don’ts” of communication involving a union, union organizing activities, and employee speech and communication. This also extends to non-union employees, as they also have protectable rights under the law.
  3. Review your practices for any unequal treatment. For example, if your company’s policy prohibits the use of its email system or computers for non-business matters, and it turns out that employees are using email and computers for non-business matters, then the employer may be limited to stop such use if used for union organizing activities.
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