Addressing union organizing in the workplace has bedeviled employers since the adoption of the National Labor Relations Act. The National Labor Relations Board has historically permitted employers to ban employees from soliciting co-workers during working time. No solicitation policies have been narrowed and refined over the years, as demonstrated by the Board’s holding in Essex International, Inc., 211 N.L.R.B. 749 (1974). Essex distinguished between policies that prohibit solicitation during “working time” (permissible) and those that prohibit solicitation during “working hours” (invalid).

In Wynn Las Vegas, LLC, 369 NLRB No. 91 issued last week, the NLRB broadened the definition of solicitation to include urging a co-worker to vote “yes.” The Wynn Las Vegas decision reverted to the Board’s traditional interpretation and acknowledged the NLRB’s failure to obtain court approval for its narrower meaning.


Continue Reading NLRB Broadens Definition of “Solicitation,” Expanding Conduct That May Be Deemed Unprotected

The NLRB recently determined that merely discrediting an employer’s justification for a union activist’s termination (a pretext finding) could be insufficient to demonstrate the termination was unlawful. Electrolux Home Products, 368 NLRB No. 34 (2019). This outcome was preordained by the NLRB’s decision in Wright Line, 251 NLRB 1083 (1980) and was reinforced as an acceptable legal analysis by the Supreme Court in a decision under Title VII, St. Mary’s Honor Center v. Hicks, 509 US 502 (1993). The logic of the rule found its voice in ABF Freight Systems v. NLRB, 510 US 317 (1994) in which the Court determined it was permissible for the NLRB to order the reinstatement of an employee even after the employee lied under oath during the NLRB hearing, as to do otherwise, would “distract the Board” with collateral credibility disputes.

Continue Reading NLRB Holds Pretext Finding Standing Alone Insufficient

Mark Twain famously said: “Reports of my demise have been greatly exaggerated.” So it is true with reports that employers can breathe easier with the new Trump National Labor Relations Board.

The recent decision in Circus Circus Casinos Inc. is a stark reminder that even as the mid-term elections in the Trump presidency approach, the

Employers facing potential withdrawal liability when closing facilities or withdrawing from underfunded multiemployer pension plans received some welcome news last month. In a noteworthy decision, a federal district court rejected a commonly used formula to calculate withdrawal liability. In the decision in The New York Times Company v. Newspaper and Mail Deliverers’-Publishers’ Pension Fund, et al., Nos. 17-CV-6178-RWS, 17-CV-6290-RWS (S.D.N.Y. Mar. 26, 2018), the court held that use of the so-called Segal Blend method of valuing a plan’s unfunded vested benefits to calculate withdrawal liability was a “mistake” and without statutory support under ERISA.

Continue Reading Actuary’s Assumptions Regarding Withdrawal Liability Rejected

Embracing mediation as a way to avoid litigation is not a sure-fire solution as one employer recently learned. See Unite Here Local 30 v. Volume Services, Inc., No. 16-55528 (9th Cir. January 26, 2018). Mediation is often employed as an alternative method of dispute resolution for its perceived advantages over traditional lawsuits (e.g. it can be quicker, less expensive and less formal than a court-driven process). For these reasons and others, many labor unions and employers frequently choose mediation as an alternative to arbitration.

Continue Reading Mediation Agreement In CBA Leads To Litigation