Labor Relations Update

Category Archives: Protected activity

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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: 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

Employer’s Poll of Workforce Not Unlawful Mass Interrogation, NLRB Rules

By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1)
When it comes to an unfair practice allegation asserting an employer’s statement is unlawful, words matter.  And, so does context.  Under NLRB case law, the actual employer statements are evaluated as well as the overall context the words were uttered to determine whether there exists coercion.  Recently, the NLRB addressed an unusual case where an … Continue Reading

Congress Passes Labor-Friendly “PRO Act”

By Mark Theodore, Joshua Fox and Jordan Simon on Posted in NLRA, NLRB, Protected activity, Section 7
On Thursday, February 6, 2020 the U.S. House of Representatives passed the Protecting the Right to Organize Act, also known as the “PRO Act”.  The legislation (which can be viewed here), passed mostly along party lines, would provide sweeping changes to the NLRA that would enhance greatly the ability of unions to organize employees and … Continue Reading

Busy Board Returns to Rule Permitting Workplace Confidentiality Restrictions during an Employer’s Investigation

By Mark Theodore, Joshua Fox and Dominique Kilmartin on Posted in Confidentiality, Employer policies, Investigations, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Witness statements, Workplace Investigations
As anticipated, in one of the last decisions before the end of Member McFerran’s term, the NLRB issued another important opinion.  Reverting back to precedent that preceded a 2015 decision, the Board, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), held that an employer’s confidentiality restrictions for information relating to … Continue Reading

Unpaid Interns are Not Statutory Employees, NLRB Concludes

By Mark Theodore, Joshua Fox and Samantha Shear on Posted in NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1)
The National Labor Relations Board recently held that a group of employees who were advocating on behalf of unpaid interns were not engaged in protected activity because the interns were not “employees” as that term is defined in Section 2(3) of the National Labor Relations Act.  In so doing, the Board reaffirmed its longstanding precedent … Continue Reading

NLRB Rules Employer’s Handbook Statement That Benefit Available To “Non-Union Employees” Violates Act

By Mark Theodore on Posted in Employer policies, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized
During the last decade, a number of NLRB decisions faulted employers for written policies that were considered to be overbroad in violation of the National Labor Relations Act.  These rulings sprang largely from the NLRB’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), where the Board set forth a standard for evaluating the lawfulness of employer policies that … Continue Reading

Employee’s Complaint About Low Tippers Not Protected Concerted Activity, NLRB Majority Rules

By Mark Theodore on Posted in NLRA, NLRB, Protected activity, Section 7, Uncategorized, Unfair Labor Practices
The right of employees to band together for purposes of bringing grievances to their employer is at the very core of the National Labor Relations Act, as embodied in Section 7. This right is called protected concerted activity.  In order to determine whether an employee is, in fact, engaged in protected concerted activity, it is necessary to … Continue Reading

Decertification Petition Was Improperly Dismissed, NLRB Rules

By Mark Theodore on Posted in Decertification elections, NLRA, NLRB, Protected activity, Representation Elections, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices
Recently, we explored how the NLRB’s rules for determining the timeliness of a representation can be confusing.  Another area of complexity comes from whether a decertification petition will be processed in the face of unfair labor practice charges filed by the incumbent union.  This implicates the Board’s “blocking policy,” which is a set of guidelines designed to address … Continue Reading

NLRB Rejects “Constructive Denial of Transfer” and “Threat” Theories of Unfair Labor Practice Liability

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized, Unfair Labor Practices
As we hurtle toward Labor Day, and the probable onslaught of decisions, and as NLRB Member Pearce’s tenure ends on August 27, the Board has been issuing a steady stream of cases.  Many of these appear to be garden variety type cases, with a smattering of cases now dismissing the theory of a class action waiver … Continue Reading

Thorough Employer Investigation Helps Establish Employer’s “Honest Belief” of Employees’ Picket Line Misconduct

By Mark Theodore on Posted in Collective Bargaining, General Counsel, Investigations, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Strikes, Uncategorized, Unfair Labor Practices
The Board is now operating at a full complement and is issuing decisions on a fairly regular basis.  Nothing earth shattering in terms of law (which is kind of a relief) but there are some interesting issues worth discussing.  A frequent topic of discussion here is the often blurry line between what constitutes “protected” versus … Continue Reading

Impulse Control? NLRB Finds Employee’s Misconduct To Be Deliberate and “Predetermined” and Not Protected

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized, Unfair Labor Practices
The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development, remember that this agency had scores of decisions overturned for lacking a proper quorum only to wait, quietly, and … Continue Reading

Handbook Wars – Common Sense Returns NLRB Overhauls Standard for Legality of Work Rules

By Mark Theodore and Joshua Fox on Posted in Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 8(a)(1)
We have noted many times over the years how the NLRB’s zeal to review employer policies, or more correctly, fragments of employer policies, for lawfulness has led to nettlesome issues that rarely, if ever, involve actual employees.  The results have been absurd and have raised an entire cottage industry of attacks on language by unions … Continue Reading

NLRB GC Boldly Defines Direction of Board Prosecution in New GC Memo

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Uncategorized, Unfair Labor Practices
The new NLRB General Counsel Peter Robb has been fast at work.  A short two weeks after being sworn in on November 17, 2017, the new General Counsel issued a memorandum making clear his intention to re-examine much of the legal precedent that was changed during the last 8 years,–and to undo many other initiatives … Continue Reading

Pair of NLRB ALJ Decisions Find Unions Violated NLRA

By Mark Theodore on Posted in NLRA, NLRB, Protected activity, Right To Work Laws, Section 7, Section 8(b)(1)(A), Uncategorized
It is mid-November, and the Board is at a full complement, and even has a new General Counsel.  While we haven’t seen anything significant (or really, anything at all) come out of the newly constituted Board we know the new members are feverishly working on getting some decisions out.  The full complement of the Board will last only a few … Continue Reading

The Devil Is In the Details: New Board Members Likely To Change Law In Nuanced Ways

By Mark Theodore on Posted in Duty to furnish information, Duty to provide information, Employer policies, General Counsel, Investigations, NLRA, NLRB, Protected activity, Section 8(a)(1), Specialty Healthcare, Uncategorized, Unfair Labor Practices, Witness statements
The end of September in most years sees a spate of new NLRB decisions, sometimes dozens, issued on or about September 30, to coincide with the end of the agency’s fiscal year.  Not so this past September 30 because of the recent changeover from a majority of Democrat Board Members to a majority of Republican … Continue Reading

NLRB’s Enforcement of Secondary Boycott Restrictions Does Not Place Union Agent in Involuntary Servitude Nor Does It Encroach on Union’s Religious Freedom

By Mark Theodore on Posted in Duty to provide information, General Counsel, NLRA, NLRB, Protected activity, Uncategorized, Unfair Labor Practices
Labor Day is upon us.  It is fitting, therefore, to enter the weekend with another case that exemplifies the bizarre world of labor relations.  Like the case of the human resource manager who turned on his employer, or the nurse who felt her union activity protected her in screaming confrontations, we continue to see new … Continue Reading

Divided NLRB Rules Employer Policy Protecting Customer Information Is Lawful

By Mark Theodore on Posted in Confidentiality, Employer policies, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized
Employers can prohibit the use by employees of the names, social security numbers and credit card numbers of customers in furtherance of organizational activities.  If this seems like it should have been a foregone conclusion, a recent case from the NLRB shows how the agency’s continued parsing of employer policies could easily have turned this notion on its … Continue Reading

NLRB’s Acted More Like “Advocate Than Adjudicator” In Issuing Decision, DC Court of Appeals Concludes

By Mark Theodore on Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized, Unfair Labor Practices
When bargaining over an agreement, it is common to hear union representatives ask “why do we need such elaborate language in an agreement?  We are always reasonable.”  To which, the company usually responds, “We think you’re nifty but the next person holding your job may not be as reasonable; better to have it in writing … Continue Reading

Two Employees, Social Media, An Unlawful Policy. . .What Could Possibly Go Wrong?

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices
The advent of social media resulted in a feverish effort by the NLRB to keep up with new technology.  In reality, the legal standard for evaluating whether conduct is protected concerted activity did not change.  Rather, all the excitement was over the fact employees were being punished for things they said on social media, which was … Continue Reading

Attack Falsely Alleging Sandwich Maker Engaged In Unhealthy Practices Not Protected Activity Concludes Appeals Court, Overruling NLRB

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Non-Union employers, Protected activity, Section 8(a)(1), Uncategorized
Labor disputes are passionate affairs.  Workplace grievances elicit all sorts of strident behavior. When the dispute involves a group of employees, the effect can become magnified.  The exact point at which the stridency of an employee’s behavior becomes unprotected is not always apparent, and like so much else in labor relations, the line changes with the Board’s … Continue Reading

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

By Mark Theodore on Posted in Email, General Counsel, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices
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

By Mark Theodore on Posted in Employer policies, General Counsel, NLRA, NLRB, Non-Union employers, Protected activity, Section 8(a)(1), Uncategorized
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
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