Labor Relations Update

Category Archives: Section 7

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Old Fashioned Protected Concerted Activity Stirred Up With A Twist

A recent NLRB ALJ decision illustrates the old and the new under the National Labor Relations Act (“Act”).  The case is Gates & Sons Barbeque of Missouri, Inc. and Workers’ Organizing Committee, Kansas City, No. 14-CA-110229 (June 17, 2014). In this case, the employer operated a successful chain of barbeque restaurants.  One of the benefits … Continue Reading

Hail Mary: NLRB Regional Director Holds College Football Players are Employees

On March 26, 2014, Peter Sung Ohr, the Chicago Regional Director of the National Labor Relations Board (“NLRB”) ruled that members of the Northwestern University football team receiving athletic scholarships are employees, and not students, under the National Labor Relations Act, allowing them the opportunity to unionize through an NLRB election. First and Ten: A … 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

Employer Merely Granted Employee’s Wish To Be Terminated, NLRB Div. Of Advice Rules

Social media permeates society.  It was inevitable that the increased use of smart phones and various communications platforms such as Facebook and Twitter would clash with the workplace.  We have noted several instances where the NLRB has alleged that employer action in response to social media posts is unlawful, as well as its seemingly endless review … Continue Reading

NLRB Pulls Back A Little More On Policy Frenzy, Finds Code Of Conduct Does Not Violate The Act

As we have seen repeatedly in the last year, the NLRB has taken it upon itself to police employer policies often finding a phrase or two to be a violation of the Act.  In recent months we have seen the NLRB seemingly pullback on this trend, taking a much closer look at the context of … 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

Court of Appeals Rules Employee Efforts To Take Over Editorial Control At Newspaper Unprotected By NLRA

An issue we have discussed previously is whether all employee action that is “concerted” is also protected by the NLRA.  We have seen that maliciously false statements made to third parties are unprotected.  But what about when employees disagree with managerial control of the operations?  How far can they press their claims?  When it comes to … 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 Division, Some “At-Will” Clauses Ok

The Board’s excruciatingly close scrutiny of employer policies continues as the agency looks for opportunities to expand its juridiction by rooting out all evil lurking in handbooks and other written employment policies.  The NLRB has taken the position that certain “at-will” language in handbooks, language that in various forms exists in virtually every private employer’s handbook in … Continue Reading

Update: NLRB Upholds Termination For Facebook Posting, But Nails Employer For Unrelated Handbook Policy

The NLRB has received a lot of attention for its actions the last couple years.  One of the storms was caused by the agency’s attention to employer actions based on employee Facebook postings.  More to the point, employers were not too thrilled with some things being posted by employees on the internet for the multitudes to see, … 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

NLRB: Maliciously False Statements By Employee To Third Party Not Protected

A problem that has vexed employers since the inception of the NLRA is the exact contours of employee free speech under the Act.  We know that employees are given a great deal of latitude to express discontent, even to the point where they can wear t-shirts identifying themselves as prisoners to customer homes.  This issue generally has … 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

Finding Certain Facebook Activity To Be Unprotected, NLRB Dismisses Two Charges

The intersection of social media and employee rights under the National Labor Relations Act has received a great deal of attention in recent months, including recently on this blog.  Social media sites such as Facebook and LinkedIn have made it very easy for people to stay connected.  With a simple push of the button, everyone in … Continue Reading

Rhyme or Reason? Trying to Make Sense of the NLRB’s Social Media Cases

Since the NLRB’s Office of the General Counsel (“OGC”) issued the first “Facebook” complaint in American Medical Response of Connecticut, Inc. in October, 2010, dozens of unfair labor practice charges involving social media have been filed, the Acting General Counsel has identified social media cases as a priority, and gallons of electronic ink have been … 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 Pokes Another Employer For Facebook Related Discharge, Issues Complaint

The NLRB continued its efforts to poke employers who discipline or discharge employees who make disparaging comments on Facebook.  According to a May 24 press release, the NLRB issued yet another Complaint against an Illinois car dealer, Knauz BMW, after it terminated a salesman for content he posted on Facebook.  The press release states the salesman … Continue Reading

NLRB Issues Complaint in NY Facebook Case

In its latest effort to address social media in the workplace, the National Labor Relations Board announced in a May 18 press release that it had filed a complaint against a New York non-profit organization alleging that it unlawfully terminated five employees who complained about working conditions on Facebook. According to the complaint filed by … Continue Reading

NLRB General Counsel Allows Discharge for Inappropriate “Tweeting”

Employee use of social media remains at the forefront of issues at the National Labor Relations Board.  Coming on the heels of the NLRB General Counsel’s decision to issue a complaint against an employer who fired an employee for her postings on Facebook (the first time such on-line activities were considered “protected, concerted activity” by the … 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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