NLRB Delivers A “Holiday Gift” To Employers: New Union Election Timelines

On December 13, 2019, the National Labor Relations Board (NLRB) issued a final rule revising the Obama-era union election procedures (known as “R-Case” rules). The revision to the procedures will become effective 120 days from its publication in the Federal Register next week.


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Ah, the perils of “reply all.” We’ve all been there – but did you know that doing so can implicate the National Labor Relations Act? This was the case in Mexican Radio Corp. v. NLRB. In August 2015, a restaurant hired a new general manager. Soon after this hire, employees lodged numerous complaints with the restaurant’s director of operations about the general manager’s alleged demeaning treatment of employees, as well as the restaurant’s unsanitary conditions.
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As those of you who pay attention to the National Labor Relations Board know (which should be all employers, since the National Labor Relations Act applies to unionized and non-union employers alike), the issue of social media policies is an area particularly fraught with confusion. In many circumstances, the Board has found such policies – or certain provisions in such policies – to unlawfully restrict employees’ rights under the Act to communicate about the terms and conditions of their employment. Thus, we labor practitioners rabidly follow each pronouncement of the Board or its General Counsel on this issue, trying to ascertain the legal parameters of such policies.
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The National Labor Relations Board has now addressed the use of mandatory arbitration agreements following the U.S. Supreme Court’s 2018 decision in Epic Systems v. Lewis, which upheld the enforceability of arbitration agreements containing waivers of the right to bring class or collective actions over employment-related disputes, rejecting the NLRB’s then-position that such waivers violate the National Labor Relations Act (NLRA), as discussed in our prior E-lert.
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In May of 2013, some Walmart employees boarded buses bound for Bentonville, Arkansas to attend the Company’s annual shareholders meeting. The buses formed a caravan, picking up employees at Walmart locations on the way. The employees handed strike letters to their managers before departing.

The caravan was dubbed the “Ride for Respect.” It was organized by OUR Walmart, a group formed with the assistance of the United Food and Commercial Worker Union (UFCW). Once in Bentonville, the employees held demonstrations, attended the shareholder meeting, and engaged in other activities to publicize their grievances.
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The Fair Labor Standards Act requires employers to pay overtime to non-exempt employees for all hours worked over 40 in a workweek, calculated at one and one-half times their regular rate of pay. The Department of Labor has issued a proposed rule that revises the requirements regarding the regular rate of pay in order to better reflect the modern workplace.
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As a management-side labor and employment firm, we frequently find ourselves on the other side of unions.  Unions are never shy to point out what they view as unfair, or poor terms and conditions of employment, even if their position is not objectively reasonable.  So what happens when the unions themselves are accused of treating their own employees poorly?
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Here’s another in my sometimes series of crazy things that employees (and, in this case, the National Labor Relations Board) do. Although the Board initially thought that employees playing driving games at highway speeds was protected activity (?!!), it has (fortunately for the rest of us drivers) rethought that position after being slapped down by the U.S. Court of Appeals for the D.C. Circuit.
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