This article was originally published on Law360.com.
Three recent decisions arising under the National Labor Relations Act highlight that ambiguity and inattentiveness are the twin banes of labor and employment attorneys. In all three cases, the dispute arose because two personnel policies or approaches overlapped, opening the way for conflicting claims. As these cases demonstrate, letting the National Labor Relations Board decide, “who is on first” can have significant consequences and can trigger an onslaught of litigation. Unfortunately, instead of resolving the uncertainty, these three NLRB decisions merely pushed the dispute into another forum where additional litigation may occur to resolve the underlying issues.
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