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Category Archives: NLRA

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NLRB Imposes Extraordinary, Tough Remedies for Egregious and Pervasive Violations

Posted in NLRA, NLRB, Rights Poster

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

Ebola and Potential Labor Relations Issues

Posted in Collective Bargaining, Healthcare Employers, Non-Union employers, Protected activity, Strikes

The Ebola panic presently sweeping the U.S. raises a host of potential issues for employers.  We recently provided guidance to help employers ensure employee safety while also complying with legal obligations under the Americans with Disabilities Act and similar laws.  In addition, the Occupational Health & Safety Administration (OSHA) recently released a comprehensive summary of… Continue Reading

Reading the NLRB Signs at the Triple Play Sports Bar

Posted in Employer policies, Facebook, Handbook, NLRA, Protected activity, Social Media, Social Media Policies, Uncategorized

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”

Posted in NLRA, Protected activity, Section 7, Uncategorized, Workplace Investigations

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

Department Store Units Decided Under Specialty Healthcare

Posted in Bargaining units, Collective Bargaining, NLRA, NLRB, 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

NLRB Overturns Decert Election Based On Employer’s “Promises” Of 401(k)

Posted in Decertification elections, Employer policies, Handbook, NLRA, NLRB, Section 8(a)(1), Uncategorized

The last few months have seen very little in the way of NLRB decisions.  The recent Supreme Court decision  where the recess appointments to the NLRB were invalidated, likely will further slow down the process of issuing decisions. Still, the NLRB has had a full complement of members for almost a year, and the agency manages to… Continue Reading

Supreme Court Invalidates Recess Appointments To NLRB: Several Labor Board Decisions Now In Doubt

Posted in Collective Bargaining, NLRA, NLRB, Recess appointments, Unfair Labor Practices, Workplace Investigations

In a rare 9-0 decision issued today, the United States Supreme Court invalidated the recess appointments President Obama made to the NLRB on January 4, 2012, while the Senate was in a three day recess.  The decision in National Labor Relations Board v. Noel Canning (USSC June 26, 2014) means that the NLRB was operating without the requisite… Continue Reading

Old Fashioned Protected Concerted Activity Stirred Up With A Twist

Posted in Leaving work without permission, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Strikes, Unfair Labor Practices

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

Posted in Employer policies, NLRA, Social Media, Social Media Policies

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

Posted in General Counsel, NLRA, NLRB, Objectionable Conduct, Protected activity, Social Media, Social Media Policies, Unfair Labor Practices

‘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

Posted in Email, Employer policies, NLRA, NLRB, Protected activity, Solicitation

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

Hail Mary: NLRB Regional Director Holds College Football Players are Employees

Posted in Bargaining units, NLRA, NLRB, Section 7, Uncategorized

On March 26, 2014, Peter Sung Ohr, the Chicago Regional Director of the National Labor Relations Board (“NLRB”) ruled that members of the Northwestern University football team receiving athletic scholarships are employees, and not students, under the National Labor Relations Act, allowing them the opportunity to unionize through an NLRB election. First and Ten: A… Continue Reading

Is Deferral to Labor Arbitration Awards in Jeopardy?

Posted in Arbitration, Deferral, NLRA, NLRB

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

Posted in NLRA, NLRB, Representation Elections, Rulemaking

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

Posted in Arbitration, NLRA, NLRB, Protected activity, Unfair Labor Practices

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

Posted in NLRA, Recess appointments

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

NLRB Prepared (Sort Of) For Government Shutdown

Posted in General Counsel, NLRA, NLRB

The shutdown of the federal government has reached many facets of society, including the NLRB.   The agency for all intents and purposes closed within a day of the lapse in funding, with Board agents throughout the country sending e-mails and letters to parties informing them case handling  had been suspended and directing everyone to the NLRB’s… Continue Reading

NLRB Rules That Union’s Offer To Waive Dues For Six Months To Make Up For Tiny Wage Increase Did Not Interfere With Decertification Election

Posted in Collective Bargaining, Employer policies, Handbook, NLRA, NLRB, Objectionable Conduct, Recess appointments, Representation Elections, Uncategorized

As of July 31, the NLRB has a full complement of Board Members, for the first time in about ten years.  The fact the deal on appointments has been progressing for a few weeks did not prohibit the three member Board of questionable constitutional validity from continuing to render decisions.  The NLRB recently ruled that… Continue Reading

NLRB Advice Memo Pulls Together Principles Applied in Evaluating Employer Work Rules and Social Media Policies

Posted in Employer policies, Protected activity, Social Media, Social Media Policies

A 2012 Advice Memo from the National Labor Relations Board’s (“NLRB”) General Counsel was recently publicly released in response to a Freedom of Information Act request. While the Advice Memo applies the long-standing framework used by the NLRB to evaluate the lawfulness of workplace rules more generally, it is noteworthy because it addresses a number of hot… Continue Reading

NLRB: Employee’s Outburst In Calling Manager “Trouble” Not So Egregious As To Render Conduct Unprotected

Posted in Due Process, Healthcare Employers, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Workplace Investigations

A theme we have followed here with interest is protected concerted activity, and what kinds of conduct might render otherwise protected activity “unprotected.”  We noted, for instance, that the Board recently held that an employee’s use of derogatory gender-based comments  may not not render a protected outburst “unprotected,” even if the EEOC and the myriad State… Continue Reading