Labor Relations Update

Category Archives: NLRA

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No Limits: Board Finds Hotel Improperly Limited Bargaining Subjects

By Joshua Fox and Megan Childs on Posted in NLRA, NLRB, Section 7, Section 8(a)(5)
On December 16, 2022, the National Labor Relations Board (“NLRB” or “Board”) issued its decision in Troutbeck Company, LLC d/b/a Brooklyn 181 Hospitality, LLC, among the latest in an eventful string of rulings over the last two weeks.  In a 2-1 decision (Chairman McFerran and Member Prouty in the Majority, with Member Ring dissenting), the … Continue Reading

NLRB Nixes Reopening Remedy after Remand from D.C. Circuit

By Joshua Fox and Megan Childs on Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(3)
In a 2-1 decision (Members Kaplan and Ring in the Majority, with Member Prouty dissenting), the National Labor Relations Board (“NLRB” or “Board”) revisited its 2020 decision in RAV Truck & Trailer Repairs, Inc., 369 NLRB No. 36, reversing the decision in part.  Notably, the Board reversed its earlier order requiring the Company to reopen … Continue Reading

“Fight On”; NLRB’s Regional Office Pursuing Unfair Labor Practice Charges on Behalf of College Athletes against USC, Pac-12, and NCAA

By Paul Salvatore, Adam Lupion, Joshua Fox and Alexander J. Blutman on Posted in Collective Bargaining, General Counsel, Joint Employer, NLRA, NLRB, Protected activity, Section 7, Unfair Labor Practices
On December 15, 2022, the Regional Director of the Los Angeles Region of the National Labor Relations Board (“NLRB” or “Board”) found “merit” in the unfair labor practice charges filed by football and men’s and women’s basketball players against the University of Southern California (“USC”), the Pac-12 Conference, and the NCAA. The charges raise the … Continue Reading

It’s Up To You New York, New York; NLRB Reinstates Worker-Friendly Standard for Access to Third-Party Property

By Steven Porzio, Joshua Fox and Hannah Morris on Posted in NLRA, NLRB, Off-duty Access, Protected activity, Section 7, Solicitation
The National Labor Relations Board (“NLRB” or “Board”) capped off an extremely busy week, by issuing another precedent-reversing decision, on the last day of Republican Member John Ring’s 5-year term.  In Bexar County II, 372 NLRB No. 28, the Board revised the standard and thus limited the circumstances property owners can limit access to off-duty … Continue Reading

Johnnie’s on the Spot; Board Reaffirms Standards for Employer Interrogations of Employees in Preparation for NLRB Proceedings

By Joshua Fox, Steven Porzio and Alexander J. Blutman on Posted in Investigations, NLRA, NLRB, Section 7, Unfair Labor Practices, Witness statements, Workplace Investigations
On the eve of the last day of Member Ring’s term, and in the third in a string of significant rulings by the National Labor Relations Board (“NLRB” or “Board”) (which we reported on here and here)—with potentially more to come—the Board, in Sunbelt Rentals, Inc., 372 NLRB No. 24 (2022), affirmed the standards applicable … Continue Reading

Special Delivery: NLRB Returns to Obama-Era Standard to Limit Employer Ability to Change a Proposed Bargaining Unit

By Michael Lebowich, Joshua Fox and Dixie Morrison on Posted in Bargaining units, NLRA, NLRB, NLRB Election Rules, Section 7, Specialty Healthcare
The National Labor Relations Board continues its December precedent merry-go-round with a return to the Specialty Healthcare, 357 NLRB 934 (2011) (“Specialty Healthcare”) standards for bargaining unit determinations.  In American Steel Construction, 372 NLRB No. 23, the Board overturned PCC Structurals, Inc., 365 NLRB No. 160 (2017) (“PCC Structurals”) (which had, itself, restored traditional community-of-interest … Continue Reading

A Direct Hit: NLRB Expands Make-Whole Remedies to Cover All “Direct or Foreseeable” Financial Harm

By Michael Lebowich, Joshua Fox and Hannah Morris on Posted in NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(5), Unfair Labor Practices
In a decision, Thryv, Inc., 372 NLRB No. 22, that was foreshadowed by recent invitations for briefs and prosecutorial conduct by NLRB General Counsel Jennifer Abruzzo (see our prior posts here and here), the National Labor Relations Board (“NLRB” or “Board”) issued a significant ruling on December 13, 2022, that the standard make-whole remedy for … Continue Reading

Supreme Court Set to Decide Whether NLRA Preempts State Law Claims for Property Damage Caused During Strikes

By Michael Lebowich, Joshua Fox and Thomas B. Fiascone on Posted in NLRA
The U.S. Supreme Court’s upcoming term will include review of whether the National Labor Relations Act (the “Act”) preempts state court lawsuits for property damage caused during strikes, which could have significant implications for employers and unions. Factual Background The case – Glacier Northwest Inc. v. International Brotherhood of Teamsters Local Union No. 174 – … Continue Reading

General Counsel Abruzzo Looks to Overturn Board Precedent Again: This Time, Seeking to Broaden Union Access to Public Spaces

By Steven Porzio, Joshua Fox and Caroline Libby on Posted in NLRA, NLRB
In an Advice Memorandum released on May 25, 2022, NLRB General Counsel Jennifer Abruzzo laid out a blueprint for changes she’d like made to Board precedent concerning union representatives’ access to employer property.  At issue is a pair of 2019 rulings by the NLRB in UPMC, 368 NLRB No. 2 (2019) and Kroger Ltd. P’ship, … Continue Reading

BREAKING: Jennifer Abruzzo is Sworn In as General Counsel of the NLRB

By Steven Porzio and Elizabeth Dailey on Posted in Biden Administration Coverage, NLRA, NLRB
After being nominated by President Biden on February 17, 2021, Jennifer Abruzzo was sworn in as General Counsel of the NLRB yesterday by Chairman Lauren McFerran. Abruzzo will serve a four-year term as General Counsel, spearheading the agency’s investigation and prosecution of unfair labor practice cases and supervising the NLRB field offices in the processing … Continue Reading

Ninth Circuit Overturns Board Decision Finding Unlawful Secondary Picketing, Citing Insufficient Evidence of an Intent to Coerce a Neutral Employer

By Paul Salvatore, Steven Porzio and Elizabeth Dailey on Posted in NLRA, Section 8(b)(4)(i)(B)
Last week, the United States Court of Appeals for the Ninth Circuit overturned a decision by the NLRB dismissing a complaint against two joint employers alleging unlawful termination in retaliation for picketing activity. The Court, reversing the Board, found that the employees’ picket was not unlawful secondary activity and therefore did not lose the protection … Continue Reading

Requiring Employees to Maintain the Confidentiality of Arbitration Proceedings Held to be Lawful Under the NLRA…For Now

By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in NLRA
In a recent decision by the NLRB, the Board upheld the lawfulness, in part, of an arbitration agreement that required employees to maintain the confidentiality of the arbitration proceedings, including the discovery process and the hearing. Dish Network, LLC, 370 NLRB No. 97 (March 18, 2021). However, Chairman McFerran’s considerable dissent likely signals that the … Continue Reading

Recent Labor Victories for Adjunct Professors Signal Likely Uptick in Contingent Faculty Organizing

By Paul Salvatore, Steven Porzio and Elizabeth Dailey on Posted in NLRA, NLRB
Recently, adjunct professors at Elon University and Ithaca College won victories before the NLRB and an American Arbitration Association arbitrator, respectively, that further bolster the position that adjunct, or contingent, faculty members are “employees” as defined by the NLRA.  Moreover, it also suggests that there will likely be a surge of new organizing activity amongst … Continue Reading

NLRB Finds Employer Acted Lawfully by Paying Statutory Minimum Christmas Bonus, Rejecting Unilateral Change and CBA Modification Claims

By Mark Theodore, Joshua Fox and Heylee Bernstein on Posted in NLRA, NLRB, Section 8(a)(5)
On January 14, 2021, the NLRB issued a decision in Asociacion de Empleados del Estado Libre Asociado de Puerto Rico, 370 NLRB No. 71. The decision involved the issue of whether a term of employment contained in a collective bargaining agreement continues after the expiration of the contract. This issue has been vexing for employers … Continue Reading

Employer Leaves Lasting Impression…of Unlawful Surveillance

By Mark Theodore, Joshua Fox and Makenzie D. Way on Posted in NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1)
The NLRB rang in the New Year by examining what constitutes an impression of unlawful surveillance. In Dignity Health d/b/a Mercy Gilbert Medical Center, 370 NLRB No. 67 (January 6, 2021), the Board reaffirmed helpful guidance for employers regarding the dos and don’ts in the context of union organizing campaigns. Specifically, the Board held that … Continue Reading

NLRB Advice Memorandum: Firing Employees Because of Discussions Related to Tip-Pooling Violates Section 8(a)(1)

By Mark Theodore, Joshua Fox and Heylee Bernstein on Posted in Advice, NLRA, NLRB, Protected activity, Section 8(a)(1)
In an Advice Memorandum released Thursday, the NLRB’s Division of Advice concluded that employees who discussed an employer’s tip-pooling practices engaged in protected concerted activity, such that discharging the employees for this activity violated Section 8(a)(1) of the NLRA. Employees working at a steakhouse in New York City often complained about the restaurant’s tip-pooling system. … Continue Reading

NLRB: Members Of Trade Group Are Not “Employees” Covered By The NLRA

By Mark Theodore, Joshua Fox and Jordan Simon on Posted in NLRA, NLRB, Section 7
On September 11, 2020, a three-member National Labor Relations Board panel unanimously ruled that a trade group representing sign language interpreters did not violate Section 8(a)(1) of the Act by removing its members’ posts on its closed Facebook page.  The posts, made by individual members of the trade group, discussed the interpreters’ work conditions and … Continue Reading

Update: NLRB Final Rule Governing Employee-Status of Student Workers May Issue As Soon As September 2020

By Steven Porzio and Elizabeth Dailey on Posted in NLRA, NLRB, Rulemaking, Section 2(3), Section 7
As we previously reported, the NLRB published a Notice of Proposed Rulemaking (NPRM) in September 2019 regarding the employee-status of student workers at private colleges and universities. Under the proposed rule, the NLRB seeks to establish that undergraduate and graduate students performing services for compensation, including teaching and research, in connection with their studies are … Continue Reading

NLRB GC Issues Guidance Memo Laying Out Changes to Evidence Collection in Unfair Labor Practice Investigations

By Steven Porzio, Joshua Fox and Dominique Kilmartin on Posted in Investigations, Investigations, NLRA, NLRB, Section 7
NLRB General Counsel Peter Robb issued a Memorandum on June 17th setting forth new guidelines for how Regions conduct unfair labor practice investigations—specifically, how Regions secure the testimony of former supervisors and agents, as well as how to handle audio recordings.  The stated goal of the Memo is to “promote transparency and apply fairness” during … Continue Reading

NLRB Establishes Bright-Line Test Denying Jurisdiction over Religious Educational Institutions

By Mark Theodore, Joshua Fox and Eric Novak on Posted in NLRA, NLRB, Section 7
We have seen this movie before.  NLRB precedent established by the Board under the prior Administration conflicted sharply with decisions by the D.C. Circuit reviewing the Board.  Then the current iteration of the Board reverses its own precedent and sides with the D.C. Circuit.  This situation occurred recently with regard to whether the “clear and … Continue Reading

Union’s Efforts to Scare Employees From Participating in Employer Investigations Rebuked by the Board

By Mark Theodore, Joshua Fox and Austin McLeod on Posted in 8(b)(2), Investigations, NLRA, NLRB, Section 8(b)(1)(A)
On June 5, 2020, the NLRB held, in Teamsters Local Union No. 735-S (Bemis Co., Inc.), 369 NLRB No. 97, that union officials’ retaliatory actions against members who participated in an investigation resulting in the discharge of the union president violated the NLRA’s prohibitions against union restraint or coercion (Section 8(b)(1)(A)) and causing employer discrimination … Continue Reading

NLRB: Policy Prohibiting Personal Cell Phones in Work Areas Due to Safety Concerns May Be Lawful under Boeing

By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized
As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases. The Board has struggled for years with the concept that certain commonsense employer business policies can be unlawful. It is difficult to draw bright-line rules … Continue Reading

“Hard” Bargaining Proposals Placed Into Final Offer Evidence Bad Faith Bargaining, NLRB Concludes

By Mark Theodore and Heylee Bernstein on Posted in Section 8(a)(1), Section 8(a)(5)
On May 21, 2020, the NLRB issued a decision in Altura Communication Solutions, LLC. The case asked the Board to consider whether a series of broad proposals made by the employer during collective bargaining amounted to bad faith bargaining and 8(a)(1) and 8(a)(5) violations. The Board noted that while it is not its role to … Continue Reading
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