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Labor Relations Update

Category Archives: Section 8(a)(1)

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

Posted in General Counsel, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices

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

Posted in NLRA, NLRB, Protected activity, Section 8(a)(1), Unfair Labor Practices

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

Non-Compete Agreement A Mandatory Subject of Bargaining, NLRB Rules

Posted in Collective Bargaining, Confidentiality, Employer policies, NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices

The first day of employment is often chaotic.  New employees must learn their way around the jobsite, meet (and remember the names of) many new people and otherwise familiarize themselves with working at a new job.  Oh, and there’s the paperwork.  Seemingly endless mounds of paperwork.  New employees are asked to sign a multitude of documents… Continue Reading

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

Posted in Collective Bargaining, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices

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

Posted in Arbitration, Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized

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

Posted in General Counsel, Investigations, Mandatory submissions, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

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

Search Of Company Vehicle Not Employee Interview Triggering Weingarten Rights, NLRB Division of Advice

Posted in Advice, Investigations, Investigations, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

The scope of a union-represented employee’s right to have a union representative present during an investigatory interview is one of the more interesting areas of labor law.  Even though most people who practice labor relations know the basics of the so-called Weingarten rights, the same types of questions continue to arise because there are an… 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

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: 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

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

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

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

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

Posted in General Counsel, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices

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

Court of Appeals Reverses NLRB Finding Of No Impasse

Posted in Collective Bargaining, NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices

Sometimes in negotiations the parties just cannot agree on certain items.  Such a deadlock under certain circumstances can have legal consequences under the concept of “impasse,” one of the more shadowy, hard to define issues in labor law.  A true legal impasse over an important issue can allow one party to temporarily suspend negotiations, and in… Continue Reading

NLRB Developments Post-Election – What The Future May Hold In Labor Relations

Posted in At-Will, Bargaining units, Employer policies, Facebook, General Counsel, Handbook, NLRA, NLRB, Off-duty Access, Section 7, Section 8(a)(1), Social Media Policies

Now that the election is over, one of the main questions being asked is, what next?  We recently held a Webinar entitled “The Latest at the NLRB and Post-Election Developments” to address this question.  It seems clear that with Congress still divided that there likely will not be much in the way of legislative change.  The pressing issues… Continue Reading

NLRB Division, Some “At-Will” Clauses Ok

Posted in Advice, At-Will, Employer policies, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices

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

Posted in Employer policies, Facebook, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Social Media, Unfair Labor Practices

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

NLRB: Employer’s Harassment Investigation Lawful, But Not Resulting Discipline

Posted in Decertification elections, Handbook, Leaving work without permission, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices

As the end of its fiscal year approaches (September 30), the NLRB pushes more decisions out than it has in the last several weeks.  Not a whole lot are of note, honestly.  There seems to be an uptick of default judgments being issued,-findings of violations of the NLRA without a formal hearing,–but it is difficult… Continue Reading

Post-Labor Day Evaluation Shows….Very Little Activity At NLRB

Posted in Handbook, NLRA, NLRB, Section 8(a)(1), Unfair Labor Practices

What a difference a year makes.  Last year, we saw a blizzard of change coming from the NLRB.  One could forecast what was going to happen due to the proactive nature of the agency’s public expression of its intentions, as well as its solicitation of viewpoints.  It seemed every month brought some new, big change… Continue Reading

Dues Checkoff Clear In Revocation Requirements, Says NLRB (By Default)

Posted in Employer policies, General Counsel, Handbook, NLRA, NLRB, Section 8(a)(1), Section 8(a)(2), Section 8(b)(1)(A), Unfair Labor Practices

The looming presidential election seems to have slowed the NLRB down, despite the fact the Board is currently at a full complement of five members.  As of July 24, it will be down to four, as Member Flynn’s resignation will become effective at that time. The Board cases being decided these days largely involve mundane matters,… Continue Reading

Independence Day Incrementalism: NLRB (Again) Expands On Precedent By Ruling Employer Off-Duty Access Rule Unlawful

Posted in General Counsel, Handbook, NLRA, NLRB, Off-duty Access, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices

Last year the NLRB’s order of the day was sweeping change.  That brought us the employee rights poster, the ambush election rules, and micro unions.  The Board today is not acting in such a bold manner, and instead is seeking gradual change through a policy of incrementalism.  We saw recently how the current Board expanded… Continue Reading

Directing Employees To Hand Out Leaflets A Violation, NLRB Rules

Posted in Section 7, Section 8(a)(1)

Employers, particularly outward facing ones, can find external union protest activity in front of the business to be annoying.  The NLRB recently ruled that the employer cannot enlist employees to assist in countering such efforts.  In Fresh & Easy Neighborhood Market, Inc., 358 NLRB No. 65 (June 25, 2012).pdf, the employer, an operator of grocery… Continue Reading