Labor Relations Update

Tag Archives: Section 7

NLRB’s Attempt To Incrementally Expand Weingarten Rights Rebuffed By Federal Appeals Court

The NLRB suffered a setback this week when its interpretation of Weingarten rights was rebuffed by the D.C. Court of Appeals.  This is the same court that recently declared the agency was acting more as an “advocate than adjudicator” in a case involving access to an employer’s premises. Weingarten, which derives its name from the United … Continue Reading

Employer’s Asking Employee “How Things Are Going?,” Prelude to Unlawful Solicitation of Grievances, Board Majority Rules

We are on the verge of the Board majority changing for the first time in approximately a decade. The President’s two appointees, if confirmed, will bring the Board up to a full five members.  After the new members are seated we likely will see big changes to the law.  In the meantime, the Board continues to … Continue Reading

NLRB GC’s Attempt At Summary Judgment In Handbook Case Rejected By NLRB Majority

The change in a presidential administration always brings changes to government agencies, including the NLRB, as new appointments are made reflecting the policy preferences of the administration.  The NLRB is not immune to this change and it has been historical practice for the president to appoint three members from the party of the administration and … Continue Reading

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

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

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

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

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 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: 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

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

NLRB, Union Violated Act When Steward Invoked Company Handbook To Stop Member Complaints

In the last couple of years, we have seen close scrutiny of employer handbooks by the NLRB.  If the agency deems a policy, or a portion of a policy, to be something employees might reasonably construe to inhibit protected activities, it is found to be unlawful.  These types of cases are vexing. if only because … Continue Reading

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

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

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

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

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

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

Social Media In Perspective: Labor and Employment Law Developments

Following on the success of our March webinar, “Labor Relations Update: Live,” Ronald Meisburg and Katharine Parker will be presenting a webinar on Wednesday, June 13th, entitled “Social Media in Perspective – Labor and Employment Law Developments.”  Ronald is a frequent author of this blog and the co-head of Proskauer’s Labor-Management Relations Group.  Katharine is … Continue Reading

Handing Employers A Significant Victory, Federal District Court Strikes Down NLRB Rights Poster Requirement

Mid-April is normally a gloomy time as people prepare to file tax returns.  There is some cause for celebration, though, as a federal district judge in South Carolina today (Friday the 13th of all days), issued a ruling striking down in its entirety as unlawful the NLRB’s requirement that employers post the so-called employee rights notice … Continue Reading

Court Strikes Down Portions Of NLRB Notice Posting Rules

A federal judge in the District of Columbia handed employers a significant partial victory in the ongoing skirmish over the NLRB’s attempts to require all employers under its jurisdiction to post a notice of employee rights.  As we have noted previously, the NLRB postponed the original November 14, 2011 compliance date, only to postpone it … Continue Reading

NLRB: All Employers Must Post Notice Informing Employees Of Rights Under NLRA

Concluding that “many employees protected by the NLRA are unaware of their rights under the statute,” the NLRB today issued a Final Rule today on Notification of Employee Rights under the National Labor Relations Act.pdf.  As of November 14, 2011, all employers falling under NLRB jurisdiction will be required to post a notice the content … Continue Reading

The Lull Before The Storm: Blizzard Of NLRB Activity Coming

The mid-point of Summer has passed.  Although the NLRB has not issued a major decision in several weeks, the agency has not been slacking off this Summer.  In a typical year, August and September are the busiest months for the NLRB, because the federal government’s fiscal year ends September 30.  During the final weeks of the … Continue Reading

NLRB Sues Arizona Over Secret Ballot Legislation

The NLRB made good on its January 13, 2011.pdf threat to sue individual states that enact legislation that it believes are solely within its province.  In a complaint filed against the State of Arizona.pdf today, the NLRB asserts that voter enacted Arizona Constitutional Amendment Article 2 § 37 is preempted by the National Labor Relations Act, and … Continue Reading

NLRB: Employees Dressed In Prison Garb May Visit Customer Homes

These days, one can start almost any conversation about an NLRB decision with the words, “Under vigorous dissent by Member Hayes. . .”  The NLRB’s recent decision in AT&T Connecticut, 356 NLRB No. 118 (March 24, 2011).pdf is no exception.  In AT&T Connecticut the NLRB ruled that the employer violated the NLRA when it suspended … Continue Reading
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