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Top Five Labor Law Developments for February 2019

National Labor Relations Board (NLRB) Member Mark Gaston Pearce has withdrawn his name from consideration for another term on the Board. Pearce reportedly explained his decision by stating it felt best to “remove myself from the center of a political tug of war.” Pearce’s nomination had stalled in the U.S. Senate, which ended its last term without voting on the re-nomination. Many were surprised when President Donald Trump re-nominated Pearce, who had drawn criticism from business groups for a perceived anti-business bias during his tenure on the Board. Until Trump selects a new Democratic nominee for the five-member Board, the NLRB will continue to have a 3-1 Republican majority.

A memorandum from NLRB General Counsel Peter Robb instructs NLRB regional officials to issue complaints against unions that fail to take certain steps regarding individuals who object to mandatory union membership or union dues. See Memorandum GC-19-04 (released Feb. 22, 2019). Pursuant to U.S. Supreme Court precedent, individuals covered by union contracts have the right to be non-members (see NLRB v. Gen. Motors Corp., 373 U.S. 734 [1963]), and they may ask the union not to spend fees on “non-representational” activities, such as lobbying and political action. See CWA v. Beck, 487 U.S. 735 (1988). The GC Memorandum directs NLRB regional officials to issue complaints against unions accused in unfair labor practice charges of failing: 1) to notify individuals of their rights under Gen. Motors and Beck; 2) to disclose the reduced amount of fees owed by employees opting out of paying full union dues under Beck; 3) to “clearly and unambiguously” notify employees when they may revoke authorizations to deduct dues from paychecks; and 4) to honor employees’ requests to revoke such authorizations annually and after expiration of a collective bargaining agreement.

The NLRB asked an administrative law judge to reconsider whether an employer violated the National Labor Relations Act (NLRA) when it banned employees from having personal cell phones on the employer’s manufacturing floor or at workstations. Cott Beverages, Inc., 367 NLRB No. 97 (Feb. 27, 2019). The employer, a beverage manufacturer, maintained its prohibition against cell phones in order to avoid employees accidentally dropping the devices in the containers used in beverage production. An employee filed an unfair labor practice charge alleging (among other things) that the ban unlawfully prohibited the employee from photography and audio or video recording in the workplace, rights guaranteed under the NLRA. An NLRB administrative law judge found the ban violated the NLRA. However, subsequent to the judge’s decision, the Board adopted a more employer-friendly standard for evaluating the legality of workplace rules. See Boeing Co., 365 NLRB No. 154 (2017). Accordingly, the NLRB remanded the case, instructing the judge to apply the new standard.

The NLRB ruled an employer did not violate the NLRA when it denied a union’s request to provide information that included the name of a worker who tipped off the employer about a possible workplace protest. The employer violated the NLRA, however, by refusing to provide a summary of the information disclosed by the informant, the NLRB said. Michigan Bell Telephone Co., 367 NLRB No. 74 (Jan. 24, 2019, released Feb. 2019). The NLRA grants unions broad rights to request and receive information from employers whose employees they represent. An informant had notified the employer that employees were planning to protest a new overtime policy by holding a “family night” during which employees would refuse to work on a particular evening. After the family night occurred, the employer disciplined employees who had refused to work. After the union filed a grievance, the employer refused the union’s request for the name of the informant, a summary of the information disclosed, and the names of managers who received the information. The union filed an unfair labor practice charge alleging the refusal violated the NLRA. The Board ruled that the employer’s refusal to disclose the informant’s name and the names of managers informed did not violate the Act, because those names were irrelevant to the union’s duty to investigate the family night. The Board also ruled that refusing to disclose the summary of information violated the Act, as that information was necessary to help the union respond to the employer’s actions following family night.

Union-negotiated wage increases were slightly lower in the first few weeks of 2019 compared to the same period in 2018, according to a Bloomberg report. The data, which focused on the manufacturing, non-manufacturing, and state/local government sectors, showed that employees saw average first-year wage increases of 3.1 percent in collective bargaining agreements in the first two months of 2019, compared to 3.2 percent increases for that period in 2018. The data also addressed the impact of one-time payments like bonuses. When accounting for such payments, the first-year wage increases rose to 3.4 percent so far in 2019, compared to 3.3 percent during the same period in 2018.

Jackson Lewis P.C. © 2020National Law Review, Volume IX, Number 70


About this Author

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented management in dozens of counter-organizing drives and participated in countless unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and other federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free....

Chad P. Richter, Jackson Lewis PC, Alternative Dispute Resolution, Attorney

Chad Richter is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C.

Mr. Richter’s practice is divided into three areas: (1) preventive counseling and training; (2) traditional labor law; and (3) workplace litigation. With regard to Mr. Richter’s preventive practice, he routinely provides day-to-day advice and counseling to management on a variety of employment law matters including human resource management, traditional labor relations, employment discrimination, wage and hour, privacy, disability leave management, and reductions in force. Mr....