Labor Relations Update

Category Archives: Section 7

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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

Recent ALJ Decision Provides Important Nuance Regarding Workplace No Recording Rules

By Steven Porzio on Posted in Employer policies, NLRA, NLRB, Section 7
In late 2017, the NLRB in Boeing Company, 365 NLRB No. 154 (2017), established a new three category system for classifying various employer policies. The new system was designed to balance a “work rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline … Continue Reading

Employer’s Campaign Prediction That Employees Would Have To Join Union And Pay Dues As Condition Of Employment Not Coercive, NLRB Majority Rules

By Mark Theodore on Posted in Collective Bargaining, NLRA, NLRB, NLRB Election Rules, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices
The NLRB currently is churning out cases and Advice Memoranda at a fairly regular pace.  We recently discussed NLRB decisions addressing information requests, handbook statements, and confidential informants. An interesting area of NLRB case law concerns campaign statements,–statements made by employer representatives during an organizing campaign.  When there is an allegation of wrongdoing, the Board evaluates such employer … Continue Reading

NLRB Office of the General Counsel Advises that Uber Drivers Are Not Statutory “Employees”

By Mark Theodore, Joshua Fox and Jacob P. Tucker on Posted in Advice, NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(2), Section 8(a)(5)
In an Advice Memorandum dated April 16, 2019, but released on May 14, 2019, the NLRB’s General Counsel staked out a position in one of the most contentious and influential questions in labor and employment law today: Whether or not Uber drivers ­– and by implication, potentially, other “gig economy” workers – are statutory employees … Continue Reading

D.C. Circuit Weighs In On NLRB Test For Adjunct Faculty Unionization

By Paul Salvatore, Steven Porzio, David Bayer and Laura Franks on Posted in NLRA, Section 7
Colleges and universities should take note of the Court of Appeals for the D.C. Circuit’s recent decision in University of Southern California v. National Labor Relations Board, Case No. 17-1149 (D.C. Cir. Mar. 12, 2019) addressing whether non-tenure track faculty at universities are “employees” under the National Labor Relations Act (“NLRA”), giving them the right … Continue Reading

Are Charter Schools Covered by the National Labor Relations Act? NLRB to Reconsider Its Jurisdiction over Charter Schools

By Mark Theodore, Joshua Fox and Austin McLeod on Posted in Bargaining units, Decertification elections, NLRA, NLRB, Section 7
On February 4, the NLRB granted United Federation of Teachers, Local 2, AFT, AFL-CIO’s (the “Union”) request for review of the Regional Director’s Decision and Direction of Election concerning a decertification petition filed by several teachers at a charter school.  In so doing, the Board invited filing of briefs regarding whether the Board should decline … 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

Another Obama-Board Decision Overturned: NLRB Reverts to Traditional Common-Law Agency Independent-Contractor Test and Foreshadows Potential Rulemaking

By Joshua Fox, Meika Freeman and Michael Lebowich on Posted in Collective Bargaining, NLRA, NLRB, Rulemaking, Section 7
On January 25, 2019, in a long-anticipated decision, the NLRB overturned another Obama-Board decision, FedEx Home Delivery, 361 NLRB 610 (2014), which modified the test for whether an individual is an “employee” or an independent contractor under the NLRA (read about that decision here).  The Board, in a 3-1 decision (Chairman Ring and Members Kaplan … Continue Reading

Employer’s Litigation Hold Not Unlawful, NLRB Division of Advice Concludes

By Mark Theodore on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized
Last year about this time, the NLRB changed the standard for reviewing handbook rules.  The new standard takes into consideration the fact  there are many other interests other than the NLRA at play in a workplace, and seems to have quieted the frenzied scrutiny of employer policies. Over the years, the heightened scrutiny of employer policies has resulted in … Continue Reading

NLRB Finds Employer Effectively Repudiated Unlawful Handbook Rule…and RecusalGate Continues

By Mark Theodore on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Solicitation, Uncategorized, Unfair Labor Practices
The Board issued an interesting decision discussing an employer’s successful efforts to repudiate unlawful conduct, which we’ll get to in a minute.  In our last post, we discussed a simmering dispute over the circumstances which an NLRB member must recuse himself or herself.  This issue, we’ll call it Recusalgate,  has taken an interesting turn.  In ADI … Continue Reading

You’ve Got Mail: NLRB Requests Briefing on Standard for Employee Use of Employer Owned Electronic Communication Systems

By Michael Lebowich and Jordan Simon on Posted in Confidentiality, Email, Employer policies, NLRA, NLRB, Section 7, Social Media
In what could signify the beginning of the end for Purple Communications, Inc., 361 NLRB 1050 (2014) and guaranteed employee access to Employer computer systems for union organizing purposes, the NLRB issued a notice on August 1 inviting the filing of briefs on whether the Board should uphold, modify or overrule the decision.  Under Purple … Continue Reading

NLRB General Counsel Issues Handbook on Handbook Rules

By Michael Lebowich, Joshua Fox and Jay M. Cohen on Posted in Advice, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Section 7, Uncategorized
Following up on the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), on June 6, NLRB General Counsel Peter Robb issued a new Guidance Memorandum (18-04) detailing how NLRB Regional Offices receiving claims of improper employment policies are to interpret employer workplace rules. As we reported this past December (here), … 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
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