Labor Relations Update
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NLRB General Counsel Issues Guidance on Deferral to Grievance Arbitration and Settlements

Following the decision of the National Labor Relations Board in Babcock & Wilcox Construction Co., 361 NLRB No. 132 (December 14, 2014), the NLRB General Counsel has issued Memorandum GC 15-02 (February 10, 2015), which provides guidance to the NLRB regional offices and to the general public regarding the application of that decision in pending … Continue Reading

NLRB Issues Final Election Rules Revision

As anticipated, the National Labor Relations Board today made public its final revised election rules.  The new rules will become effective 120 days following their publication in the Federal Register.  The publication date is scheduled to be Monday, December 15, 2014, one day before the expiration of the term of Member Schiffer. There are really … Continue Reading

NLRB Reverses Course, Gives Employees Certain Rights to Use Employer’s Email

In a decision that reverses existing case law on employee use of  employer email, the National Labor Relations Board (with two members filing separate dissents) has decided that under certain circumstances employees do have the right to use and employer’s email to engage in protected communications under the National Labor Relations Act. Purple Communications, Inc., … Continue Reading

NLRB Says On-Line Planning For Insubordination Is Not Protected Concerted Activity

 In Richmond District Neighborhood Center, Case 20-CA-091748 (Oct. 28, 2014), the Board upheld an Administrative Law Judge’s ruling that a conversation between two employees, who were involved with student programming at the neighborhood center, was not protected under the NLRA.  During the course of their Facebook exchange, which included obscenity-laced statements regarding how they would … Continue Reading

NLRB Imposes Extraordinary, Tough Remedies for Egregious and Pervasive Violations

In a landmark decision, the National Labor Relation Board has imposed an array of extraordinary remedies against an employer for what the NLRB described as “egregious and pervasive violations” of the National Labor Relations Act.  Pacific Beach Hotel, 361 NLRB No. 65 (2014). As the basis for its imposition of the remedies, the NLRB stated: … Continue Reading

NLRB Refines Its Test for Independent Contractor Status

The National Labor Relations Board, with one member dissenting, has issued a decision in which it “refines” the test it uses for determining whether it will find individuals performing services for an employer to be employees, who are covered by the National Labor Relations Act, or independent contractors, who are not.  The case is FedEx … Continue Reading

¿Cómo Se Dice: “Lost in Translation”?

Labor law is filled with many technical rules, the meaning of which can sometimes can be lost in translation.  The recent NLRB decision in Labriola Baking Co., 361 N.L.R.B. No. 41 (2014), is a case in point. During a campaign before a decertification election, an employer’s representative stated in a speech to the employees:  “If you … Continue Reading

Reading the NLRB Signs at the Triple Play Sports Bar

In Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31. (August 22, 2014), the National Labor Relations Board ruled that an employee “liking” a status on Facebook is engaging in protected concerted activities under the NLRA.   Employees were unlawfully terminated for ranting about the employer’s tax-withholding error, which resulted in … Continue Reading

NLRB Divides Sharply on Employee Concerted Activity for “Mutual Aid or Protection”

In a complex, twenty-eight page opinion, a sharply divided NLRB has ruled that when an individual employee seeks assistance from fellow employees with respect to a violation under Title VII (or other workplace laws), the action is not only concerted but also presumptively for the purpose of mutual aid or protection, and thereby also covered … Continue Reading

NLRB Work Rule Decisions Continue to be a Mixed Bag

As the NLRB continues to wade through the pool of issues arising from social media policies and other workplace rules, an Administrative Law Judge’s recent decision in Cellco Partnership d/b/a Verizon Wireless (July 25, 2014) illustrates the growing number of problems employers face in developing corporate policies and the variability of NLRB decisions. In this … Continue Reading

Department Store Units Decided Under Specialty Healthcare

This week the NLRB decided two cases involving union organizing in large department stores. In each case an NLRB regional director applied the Board’s Specialty Healthcare test to determine whether the bargaining unit requested by the union was appropriate. In Specialty Healthcare, the Board held that a unit will be presumptively appropriate for collective bargaining … Continue Reading

Bubba Gump Shrimp’s Social Media Policy Passes Muster, ALJ Says

In Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014), an NLRB Administrative Law Judge (ALJ) found a social media rule concerning its wholly owned subsidiary, Bubba Gump Shrimp Co. Restaurants, Inc., to not violate the NLRA.   The General Counsel had alleged that the following policy infringed on employee’s rights because, purportedly, it would tend to … Continue Reading

Old Fashioned Protected Concerted Activity Stirred Up With A Twist

A recent NLRB ALJ decision illustrates the old and the new under the National Labor Relations Act (“Act”).  The case is Gates & Sons Barbeque of Missouri, Inc. and Workers’ Organizing Committee, Kansas City, No. 14-CA-110229 (June 17, 2014). In this case, the employer operated a successful chain of barbeque restaurants.  One of the benefits … Continue Reading

NLRB Administrative Law Judge Rulings on Work Rules and Social Media Policies Continue to Perplex

NLRB Work Rules and Social Media Policies Continue to Perplex The NLRB may be getting #SocialMedia, but confusion concerning employer work rules and social media policies became obvious yet again in Professional Electrical Contractors of Connecticut (June 4, 2014).  In this decision, ALJ Raymond Green wrote that “a legitimate conflict of principles . . . will require … Continue Reading

NLRB Gets #SocialMedia: Board and ALJ Rulings Recap

‘April rulings bring May muddling’ might be a better way to tweet recent social media decisions at the National Labor Relations Board (NLRB) given the Board’s ruling in Durham School Services (April 25, 2014) and an Administrative Law Judge’s (ALJ) opinion in Kroger Co. of Michigan (April 21, 2014).  Together, these two decisions show that the … Continue Reading

Employer Email Policies on Chopping Block as General Counsel Seeks to Overrule Register Guard and Board Calls for Amicus Briefs

In a development of importance to both union and non-union employers, the NLRB General Counsel has asked the NLRB to overrule its 2007 decision in Register Guard, 351 NLRB 1110 (2007).  In Register Guard, the Board had held that employers could bar employee use of the employer’s email for non-business purposes, including union or other … Continue Reading

Is Deferral to Labor Arbitration Awards in Jeopardy?

The National Labor Relations Board has issued a press release announcing its intention to revisit precedent created under a pair of Board decisions nearly 59 and 30 years old, respectively.  The precedent involves under what circumstances the NLRB will defer to decisions of labor arbitrators in cases where there are pending NLRB unfair labor practice charges … Continue Reading

They’re Ba-ack: NLRB to Re-Propose Election Regulations

As expected, the NLRB has announced that it is again proposing regulations to amend its representation case election procedures.  A copy of the Notice of Proposed Rulemaking submitted to the Federal Register for publication can be viewed here.  The proposed regulations appear identical to those the Board attempted to promulgate in 2011. At that time the Board … Continue Reading

NLRB ALJ Says That Under D.R. Horton, Actions Speak As Loudly as Words

A few weeks ago, we posted about the Fifth Circuit’s decision in the D.R. Horton case and the NLRB’s doctrine of non-acquiescence.   As you will recall, in D.R. Horton, the NLRB held that an employer violates the right of employees to engage in concerted activity by maintaining an arbitration program which prohibits employees from pursuing … Continue Reading

Noel Canning Oral Argument: Justices Express Skepticism

My experience is that oral arguments, while often interesting, rarely open much of a window into exactly how a court will actually decide the case.  Today’s Supreme Court argument in NLRB v. Noel Canning may be an exception.  Nearly all of the Justices had questions which suggested skepticism over the validity of the President’s January 4, … Continue Reading
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