NLRB Reverses 50-Year Precedent and Lessens Standard for a Bargaining Order Without a Secret Ballot Election

The National Labor Relations Board (NLRB) reversed over fifty years of established precedent on August 25, 2023, when it decided to overrule its 1971 decision in Linden Lumber and reinstate a modified version of its 1949 Joy Silk doctrine. The practical impact of the NLRB's decision in Cemex Construction Materials Pacific, LLC is that recourse to a private ballot election to test a union's claim of majority support may decline. This decision also likely will limit the right of employees to a private ballot election free of coercion as they decide whether to support a union as their exclusive bargaining representative. More ›

President Trump's Executive Orders Affecting Federal Labor and Employment Law Signify Continued Employer-Friendly Shifts

There have been a lot of changes lately with public sector employment and unions over the last few months.

Of course, first on everyone's minds is the Janus decision at the United State Supreme Court, which held that laws requiring public-sector employees who are not union members to pay union agency fees violate the First Amendment. We previously unpacked this decision in great detail.

Less well known are a series of executive orders that affect federal employees. While these changes do not directly impact private employers or state-level public employees, the executive orders show a considerable paradigm shift in employment law with this administration. As always, these kinds of moves help demonstrate to employers how the environment has changed or may continue to shift. More ›

The NLRB Rings in the New Year by Unringing a Few Bells

Over the last month, we have seen a number of significant restorations of status quo antes. These have come in the form of reverting to earlier precedent, regulations, or guidance. Without further ado, we present some of the more notable developments: More ›

Management Rights Clause Does Not Give Management Right to Skip Bargaining Over Non-Compete and Confidentiality Agreement D.C. Court of Appeals Says

In Minteq v. NLRA, the United States Court of Appeals for the District of Columbia Circuit held an employer committed an unfair labor practice under Section 8 (a)(5) by failing to notify and bargain with a union over its requirement that new employees sign a non-compete and confidentiality agreement as a condition of employment. More ›

Is Labor Law Putting the Franchise Business Model at Risk?

Over the course of the last year, we have kept you abreast of National Labor Relations Board (NLRB) case law and Department of Labor (DOL) interpretive/enforcement guidance, how these agencies are changing their view of the responsibility of parent corporations for the employment relationship between employees of temporary agencies and franchises, and how these changes have the potential to drastically alter the benefits and risks of utilizing these relationships.

In what could become one of the most enlightening applications yet of this emerging shift, an NLRB hearing before an administrative law judge began last week in involving allegations by workers that McDonald's is responsible as a joint employer for the alleged labor law violations of its franchisees. The franchisors are alleged to have threatened, disciplined, or fired franchise employees who participated in widely-publicized campaigns for collective bargaining and a $15 minimum wage. More ›

Arbitration Clause in Collective Bargaining Agreement Doesn’t Cover Statutory Claims, Court of Appeal Rules

In Mendez v. Mid-Wilshire Health Care Center, the California Court of Appeal for the Second Appellate District held that the arbitration provision in a collective bargaining agreement governing a plaintiff’s employment did not apply to statutory discrimination claims.

Plaintiff, Mendez, was a nurse’s assistant who filed a lawsuit against her employer, Mid-Wilshire, alleging several causes of action, including three statutory causes of action based on the California Fair Employment and Housing Act (FEHA). Mid-Wilshire filed a motion to compel arbitration and stay the action, arguing that all of Mendez’s claims were subject to the grievance and arbitration procedure set forth in the collective bargaining agreement between Mid-Wilshire and the union to which she was a member. More ›

Arbitrator’s Award Given Preclusive Effect in Racial Discrimination Case

In Wade v. Ports America Management Corp., the California Court of Appeal, Second Appellate District held that an arbitration award, pursuant to a collective bargaining agreement, had res judicata effect on a plaintiff’s subsequent common law racial discrimination claim.

Wade, an African-American longshoreman, was laid off in September of 2008, even though he had more seniority than other employees who were retained. The effective collective bargaining agreement (CBA) required union members to submit any grievances related to their employment to binding arbitration. More ›