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Category Archives: NLRA

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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

NLRB Rights Poster Rule Gets Torn Down Again, This Time By Fourth Circuit

Posted in NLRA, NLRB, Non-Union employers, Rights Poster, Rulemaking, Uncategorized

Of the many actions by the NLRB during the last few years, one of the most contentious has been its attempt to require all private employers falling under its jurisdiction to post a notice informing employees of their rights to unionize.  The notion of posting such a notice was considered bad enough, but when the NLRB… Continue Reading

NLRB Upholds One Election, Overturns Another In Pair Of Decisions

Posted in NLRA, NLRB, Objectionable Conduct, Representation Elections, Uncategorized

The very real questions about the NLRB’s decision-making authority may have finally slowed the agency down.  We have come to expect over the last few years, a relentless expansion of NLRB authority and reach, especially given the December timeframe when all sorts of surprises seem to come out of the agency.  So, it is somewhat noteworthy… Continue Reading

Employer Merely Granted Employee’s Wish To Be Terminated, NLRB Div. Of Advice Rules

Posted in Advice, Facebook, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Social Media, Social Media Policies

Social media permeates society.  It was inevitable that the increased use of smart phones and various communications platforms such as Facebook and Twitter would clash with the workplace.  We have noted several instances where the NLRB has alleged that employer action in response to social media posts is unlawful, as well as its seemingly endless review… Continue Reading

DC Court of Appeals Invalidates NLRB Rights Poster Holding Regulation Violates NLRA

Posted in NLRA, NLRB, Non-Union employers, Rights Poster, Rulemaking, Section 8(a)(1), Unfair Labor Practices

A federal appeals court today rebuffed the NLRB’s attempt to require all employers under its jurisdiction to post in a “conspicuous” place in the workplace a poster that informs employees of their rights under the National Labor Relations Act.   The NLRB’s rule has been controversial from the start as it didn’t just require the posting… Continue Reading

General Counsel’s Division of Advice Issues Helpful Guidance on Confidentiality Rules in Workplace Investigations

Posted in Confidentiality, Investigations, NLRA, NLRB, Witness statements

As we reported here, in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the NLRB reviewed an employer’s blanket policy of requiring witnesses to maintain confidentiality during workplace investigations.  The Board found that such a policy chilled the right of employees to engage in the protected concerted activity… Continue Reading

NLRB: Employer Responsible For Backpay Of Union Representative Allegedly Injured During Workplace Assault

Posted in General Counsel, NLRA, NLRB, Section 8(a)(1), Uncategorized, Unfair Labor Practices

The NLRB has ruled that an employer is liable to lost wages for a union representative who allegedly suffered injuries after being pushed down a flight of stairs at a work site.  The case is Norquay Construction, Inc., 359 NLRB No. 93 (April 16, 2013).  The facts involved a construction project.  The general contractor was non-union but… Continue Reading

NLRB Pulls Back A Little More On Policy Frenzy, Finds Code Of Conduct Does Not Violate The Act

Posted in Advice, At-Will, Employer policies, General Counsel, Handbook, Mandatory submissions, NLRA, NLRB, Section 7, Social Media Policies, Uncategorized

As we have seen repeatedly in the last year, the NLRB has taken it upon itself to police employer policies often finding a phrase or two to be a violation of the Act.  In recent months we have seen the NLRB seemingly pullback on this trend, taking a much closer look at the context of… Continue Reading

Update: NLRB Seeks U.S. Supreme Court Review Of Recess Appointments

Posted in Duty to furnish information, NLRA, NLRB, Recess appointments, Rulemaking, Witness statements

The NLRB announced today that the agency would seek U.S. Supreme Court review of the D.C. Circuit decision in Noel Canning, which ruled that the President’s recess appointments made last year (and perhaps in the years prior) were unconstitutional.  The decision of the appeals court has cast a great deal of uncertainty over past and current… Continue Reading

Ambush Election Rules Fall Into Noel Canning Abyss As Court Puts Hold On Decision

Posted in NLRA, NLRB, Recess appointments, Representation Elections, Rulemaking

The fallout from Noel Canning has been felt far and wide.  The DC Circuit Court’s January 25, 2013 decision certainly put all NLRB decisions made since January 4, 2012 (the date Members Block and Griffin received their recess appointments) in jeopardy.  All cases on appeal to the DC Circuit involving panels which included Block and Griffin have… Continue Reading

NLRB Overrules Another Longstanding Precedent: Witness Statements No Longer Exempt From Disclosure

Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(a)(5), Uncategorized, Witness statements

The precedents are falling fast.  Last week the NLRB overruled the five decade old Bethlehem Steel decision, and now another longstanding precedent has fallen.  The NLRB issued a decision overruling Anheuser-Busch, Inc., 237 NLRB 982 (1978), the case that held that witness statements obtained during an employer investigation of workplace misconduct are exempt from disclosure… Continue Reading

Holiday Season Extravaganza: NLRB Issues Flurry Of Law Changing Decisions

Posted in Arbitration, Collective Bargaining, Duty to furnish information, Duty to provide information, Facebook, General Counsel, NLRA, NLRB, Pre-arbitration Discovery, Protected activity, Section 7, Section 8(a)(1), Section 8(a)(5), Uncategorized

Last week the NLRB issued several significant decisions.   In the press release announcing the decisions, the agency noted that most were actually issued “the week of December 10, but were issued this week following editing and formatting which is typical for the final decisions in a Member’s term.”  This is a reference to Member Hayes’… Continue Reading