Labor Relations Update

Category Archives: Protected activity

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NLRB Settlements Can Be Tricky, Especially If You Don’t Inform The Agency

The last few decisions issued by the NLRB have addressed a wide spectrum of rather unique situations.  Just in the last several days we saw decisions involving a combative registered nurse and a human resources representative threatening unionization.  So, perhaps, one of the Board’s most recent decisions is not all that unusual….it simply involves a case … Continue Reading

HR Generalist’s Threat To Bring In Union Not Protected, NLRB Rules

One of the most interesting things about labor relations is the unusual situations human resources professionals have to deal with on a day to day basis.  If you are at a cocktail party with a human resources professional, ask them what the most unusual thing they’ve ever encountered on the job and chances are you’ll … Continue Reading

Union Adherent’s Antics Not Protected By Act, NLRB Rules

The NLRB recently issued a rare decision completely dismissing all allegations against an employer; rarer still because it was unanimous.  In Brooke Glen Behavioral Hospital, 365 NLRB No. 79 (May 15, 2017) the NLRB was confronted with a situation where an employee-union adherent engaged in behavior ultimately found to be inappropriate and unprotected. The employer, a … Continue Reading

Employer’s Interview Of Employees During Defense Of Unfair Labor Practice Violates Act, NLRB Rules

We already know that when it comes to the NLRB there already are several actions an employer can take that violate the NLRA, even though such actions would be perfectly acceptable under any other employment law.  And sometimes the actions are deemed unlawful even when they are not directly related to the NLRA.  Thus, we’ve … Continue Reading

Split D.C. Circuit Panel Upholds NLRB: DirecTV Violated NLRA By Terminating Technicians For Statements Made During A News Interview

In a 2-1 ruling in DirecTV Inc. v. National Labor Relations Board, the U.S. Court of Appeals for the D.C. Circuit affirmed the NLRB’s ruling that DirecTV must reinstate technicians who were terminated for complaining about a company pay policy during a television interview, finding that the employees’ conduct constituted protected, concerted activity and was … Continue Reading

Recent NLRB Decision A Reminder That NLRA Can Protect Actions Of A Single Employee

So far, it has been a long quiet Summer with little NLRB activity, – with the exception of the recent ruling that temporary agency employees can be part of a bargaining unit with the principal employer’s employees, of course.  More change may be coming, though.  The end of the NLRB’s fiscal year is September 30 and … Continue Reading

NLRB Refuses to Approve Withdrawal of Charges Despite Settlement of Class Action Case

We know that, among many other common employer policies, the NLRB considers many mandatory arbitration agreements to be unlawful, particularly where they prohibit class or collective actions.  See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014).  Unlike a more run of the mill handbook violation where the government seeks removal or modification of the policy, an … Continue Reading

Union Represented Employee Not Entitled To Co-Worker Witness During Investigatory Interview, NLRB Rules

The last few months at the NLRB have been relatively quiet, save of course for the ambush election rules which went into effect on April 15; the true impact of these rules has yet to be revealed.  Many of the recent Board cases involve correcting decisions that were  invalidated by the Supreme Court in its Noel Canning recess appointment decision. … 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

Ebola and Potential Labor Relations Issues

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

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

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 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

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

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

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

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

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

Holiday Season Extravaganza: NLRB Issues Flurry Of Law Changing Decisions

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

Court of Appeals Rules Employee Efforts To Take Over Editorial Control At Newspaper Unprotected By NLRA

An issue we have discussed previously is whether all employee action that is “concerted” is also protected by the NLRA.  We have seen that maliciously false statements made to third parties are unprotected.  But what about when employees disagree with managerial control of the operations?  How far can they press their claims?  When it comes to … Continue Reading

NLRB Division, Some “At-Will” Clauses Ok

The Board’s excruciatingly close scrutiny of employer policies continues as the agency looks for opportunities to expand its juridiction by rooting out all evil lurking in handbooks and other written employment policies.  The NLRB has taken the position that certain “at-will” language in handbooks, language that in various forms exists in virtually every private employer’s handbook in … Continue Reading

Update: NLRB Upholds Termination For Facebook Posting, But Nails Employer For Unrelated Handbook Policy

The NLRB has received a lot of attention for its actions the last couple years.  One of the storms was caused by the agency’s attention to employer actions based on employee Facebook postings.  More to the point, employers were not too thrilled with some things being posted by employees on the internet for the multitudes to see, … Continue Reading
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