Labor Relations Update

Category Archives: Section 8(a)(1)

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

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

NLRB Upholds Employer’s Bargaining And Demotions Post-Impasse As Lawful

In its January 31, 2020 decision in Phillips 66, 369 NLRB No. 13 (January 31, 2020) the Board reversed a number of findings of unfair labor practices found by an Administrative Law Judge related to the employer’s conduct during organizing and subsequent bargaining. Background In November 2011, the union filed a petition to represent the … Continue Reading

NLRB Gives End of Year Gift for Employers, Restores Longstanding Standard for Deferring to Arbitral Decisions

In yet another end-of-2019 decision overruling significant NLRA precedent, the Board reverted to the less stringent Spielberg / Olin standard for determining whether to defer to arbitration decisions in the context of Section 8(a)(1) and (3) unfair labor practice cases.  See United Parcel Service, Inc., 369 NLRB 1 (2019). The Board issued this decision unanimously, … 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

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

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

NLRB Restores 50+ Year-Old Precedent: Employers (Once Again) May Unilaterally Stop Deducting Union Dues Upon Contract Expiration

Mid-December is always a time where one can expect significant decisions to issue from the NLRB.  In recent years, we saw the Board, among other decisions, abandon the much criticized “micro unit” standard and the equally criticized handbook violation standard. December is also one of the main times of year that a Board Member’s term … Continue Reading

Unpaid Interns are Not Statutory Employees, NLRB Concludes

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

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

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 Dumps Longstanding “Clear and Unmistakable Waiver” Standard for More Employer-Friendly “Contract Coverage” Test

As we near the end of the agency’s fiscal year on September 30, the NLRB is churning out many significant decisions.  On September 10, the Board issued a sweeping decision concerning an issue that has divided the NLRB and D.C. Circuit Court of Appeals (as well as the First and Seventh Circuits, and partially, the … Continue Reading

National Labor Relations Board: Labor Day Roundup

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

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

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

Employers No Longer Have To Allow Union Representatives Use of Public Areas, NLRB Majority Rules

Citing judicial criticism, as well as the original Supreme Court decisions on the issue, the NLRB swept away years of precedent permitting union representatives to access public areas of an employer’s premises. In UPMC Presbyterian Shadyside, 368 NLRB No. 2 (June 14, 2019), the NLRB was confronted with the findings that an employer committed unfair … 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

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”

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

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

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

NLRB Majority: Employer Not Required To Disclose Identity Of Bargaining Unit Informant

An employer’s duty to provide information to the union representing its employees is a frequent of topic of interest to labor relations practitioners because it is very easy to violate the law.  For example, an employer’s assertion that the information is confidential is not enough to justify failing to turn over the information.  And, for a brief period of time … Continue Reading

Unanimous NLRB: Context Matters – Asking Employee Whether He Saw Union Organizer Not Unlawful Interrogation

How the NLRB treats employer statements made to employees in the context of union organizing or other protected activity has been a frequent topic of discussion.  While the actual case law analyzing the coerciveness of an employer statement has not changed, the lawfulness of the statement often depends on the make-up of the Board at the … Continue Reading

Decertification Petition Was Improperly Dismissed, NLRB Rules

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

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

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

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

NLRB Majority Decides 50-50 Balls In Employer Favor

The NLRB  has been in a period of dormancy.  When the make-up of the Board changed, a lot of people expected an onslaught of NLRB decisions reversing the reversals of precedent made by the agency in the last 8 years.  Except for a couple of brief periods, most notably in December when then-Chairman Miscimarra departed, … Continue Reading

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

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

Employee’s Failed Attempt To Secure Union Representation Sufficient Notice of Weingarten Request, Divided NLRB Rules

One area of labor relations that continues to vex practitioners is the scope of the so-called Weingarten rights.  NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975).  Some 43 years after the Supreme Court set forth the right that represented employees are entitled to union representation when facing an interview that could lead to discipline, … Continue Reading

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

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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