Management Memo

By Paul Burmeister

The National Labor Relations Board (“NLRB”) has ruled that negotiations between the Hotel Bel-Air and UNITE HERE Local 11 were not at impasse when the employer implemented its last, best final offer, which included severance payments to union employees. Hotel Bel-Air, 358 NLRB 152 (September 27, 2012). The NLRB upheld the ALJ’s order for the employer to bargain with the Union and to rescind all the signed severance agreements containing a waiver of future employment with the Hotel Bel-Air.

The Hotel Bel-Air is a luxury hotel located in Los Angeles. The Hotel ...

Seemingly ignoring the requirements for employers to keep a harassment free workplace and disregarding their right to keep a respectful and orderly environment, last week in Fresenius USA Manufacturing, Inc. the NLRB found that the company committed an unfair labor practice by terminating an employee who admitted to using vulgar and threatening language.

Overturning an administrative law judge’s decision, the NLRB ordered Fresenius to reinstate the pro-union employee who referred to the employees leading a union decertification effort as “Pussies” and ...

It seems with each passing month the National Labor Relations Board or its Acting General Counsel opens yet another new front on its assault on non-union employers.  A trend has emerged which puts labor law in conflict with standard employment practices.  From hire, to control of the workplace and employer property, to the manner post-termination disputes are handled, the NLRB is directing employers to ignore conventional wisdom, and often times other legal mandates, to alter the way they deal with their employees.

Much attention has been given to the NLRB’s more direct pro-union ...

Over the past year the NLRB has issued a series of decisions which, taken together, mark a dramatic shift in the property rights of employers and expand the right of employees seeking to use their employer’s property to organize.

Two decades ago, in Lechmere, Inc. v. NLRB, the U.S. Supreme Court ruled that employers had a right to limit or deny non-employee union organizers access to their property provided the denial was nondiscriminatory and consistent with state law.  For almost four decades, following its decision in Tri-County Medical Center, Inc., the NLRB has maintained that ...

It is Employment Law 101 – employment in the United States is generally at-will.  Equally elementary to HR professionals and employment counsel is the use of a good, strong at-will policy and/or agreement.  So common is the use of at-will policies and agreements that you would be hard pressed to find an employment handbook or an employer that does not make some use of them.

Notwithstanding this universal use, the National Labor Relations Board is poised to target non-union employers which maintain at-will policies or agreements.  Although the NLRB has taken several steps to ease the ...