Labor Relations Update

Category Archives: Section 7

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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

“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

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: 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

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

Applying the Boeing Standard, NLRB Upholds Employer’s Policies Restricting Cell Phone Use, Non-Work Email Use and Disclosure of Confidential Information

By Mark Theodore, Joshua Fox and Rachel Therese Gulotta on Posted in Confidentiality, Handbook, NLRA, NLRB, Section 7
Applying the facially neutral work rule test laid out in Boeing (see here), the Board recently reversed an Administrative Law Judge decision, concluding that the employer maintained lawful workplace rules restricting employee use of (i) cell phones in commercial vehicles, (ii) the company email server for purposes not related to work, and (iii) the disclosure … 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

Buttoning Up Rules on Union Insignia – Board Makes It Easier for Employers to Restrict Size and Scope of Union Buttons For Those With Customer Contact Work

By Michael Lebowich, Joshua Fox and Abigail Rosenblum on Posted in Buttons, NLRA, NLRB, Section 7, Section 8(a)(1)
The Board continues churning out precedent-setting decisions as year-end approaches.  Two days before the Christmas holiday, in Wal-Mart Stores, Inc., 368 NLRB No. 146 (Dec. 16, 2019), the NLRB applied its new view on handbook rules—the Boeing test—to Wal-Mart’s policy that employees can only wear “small, non-distracting” union insignia in the workplace, holding that the … 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 Continues to Aid Workers in Ousting Unions

By Mark Theodore and Annabel Pollioni on Posted in Collective Bargaining, Decertification elections, NLRA, NLRB, Section 7, Unfair Labor Practices
The NLRB recently reiterated its position that the agency should not be so quick to dismiss petitions filed by employees seeking to decertify a union. The Board, in a 3-1 decision, held that if a petition for decertification is properly filed prior to the employer entering into an agreement settling unfair labor practice charges in … Continue Reading

Moment of Clarity? NLRB Upholds Info-Sharing and Media Contact Rules, Clarifies Boeing Standard Applicable to Employer Handbook Policies

By Mark Theodore, Joshua Fox and Austin McLeod on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(3)
The NLRB continues to issue decisions on a variety of interesting issues.  On October 10, the Board held, in LA Specialty Produce Co., 368 NLRB No. 93 (Oct. 10, 2019), that an employer’s strong confidentiality protections and limited media availability rules were lawful, and in so doing, clarified the analysis under the newly-issued Boeing standard, … Continue Reading

NLRB Proposes Rule to Settle Once and For All: Student Teaching and Research Assistants Are Not “Employees”

By Paul Salvatore, Steven Porzio and Laura Franks on Posted in NLRA, NLRB, Rulemaking, Section 2(3), Section 7
As anticipated, today the National Labor Relations Board published a Notice of Proposed Rulemaking (“NPRM”) proposing a regulation which would establish that students at private colleges and universities who perform any services related to their studies for compensation, including teaching and research, are not “employees” within the meaning of Section 2(3) of the National Labor … Continue Reading

National Labor Relations Board: Labor Day Roundup

By Mark Theodore, Joshua Fox and Jacob P. Tucker on Posted in Employer policies, NLRA, NLRB, Off-duty Access, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices
While much of the country spent the last week of summer enjoying the last few days of sun, the National Labor Relations Board spent the week before its eponymous three-day weekend churning out a couple of important decisions. A brief round-up of the Board’s recent activity in areas related to the intersection of Section 7 … Continue Reading

NLRB Issues “Epic” Decision Concerning the Intersection of Mandatory Arbitration Agreements and NLRA Section 7 Rights

By Mark Theodore, Michael Lebowich, Steven Porzio, Joshua Fox and Laura Franks on Posted in Arbitration, NLRA, NLRB, Section 7
On August 14, 2019, the NLRB issued its first decision addressing employer conduct related to mandatory arbitration agreements and Section 7 activity since the Supreme Court decided Epic Systems Corp v. Lewis, 584 U.S. __, 138 S.Ct. 1612 (2018).  In Epic Systems (discussed more fully here), the Supreme Court held that agreements between employers and … Continue Reading

Employer’s Discipline of Employees Engaging In “Intermittent Strikes” Lawful: NLRB Majority

By Mark Theodore, Joshua Fox and Jacob L. Hirsch on Posted in NLRA, NLRB, Section 7, Section 8(a)(1), Strikes
This summer has been punctuated by walkouts.  We have seen walkouts in support of a $15 minimum wage and walkouts to protest the sale of goods to the government. Walking off the job is, of course, a staple of labor action, and generally speaking, employees are protected by the NLRA when the walkout is over … Continue Reading
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