Category Archives: Advice

NLRB Advice Memorandum: Firing Employees Because of Discussions Related to Tip-Pooling Violates 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 Division of Advice Dishes Some Guidance With Respect to COVID-Related ULP Charges

By Mark Theodore, Joshua Fox and Abigail Rosenblum on August 18, 2020 Posted in Advice, Coronavirus, COVID-19, NLRB, Uncategorized

The pandemic has thrown a number of obstacles at employers and employees as everyone attempts to navigate a novel situation. On August 13, 2020, the National Labor Relations Board (“NLRB”) Division of Advice (“Advice”), the agency’s internal think-tank, published five Advice Memoranda dismissing unfair labor practice charges against employers in connection with issues concerning the … Continue Reading

NLRB General Counsel Issues Guidance on the Duty to Bargain During Emergencies

By Peter D. Conrad, Joshua Fox and Scott Tan on March 31, 2020 Posted in Advice, Collective Bargaining, COVID-19, General Counsel, Healthcare Employers, NLRA, NLRB, Section 8(a)(3), Section 8(a)(5), Unfair Labor Practices

On March 27, 2020, NLRB General Counsel Peter Robb issued Memorandum GC-20-04 to provide guidance to NLRB regional offices and the general public. Acknowledging that “we are [currently] in an unprecedented situation,” the General Counsel provided summaries of several NLRB decisions discussing how, if at all, an employer’s duty to bargain under NLRA Section 8(d) … Continue Reading

Using a Cat to Chase the Inflatable Rat: NLRB General Counsel Urged Reconsideration of Board Precedent Regarding Banners and Signal Picketing of Neutral Employers

By Michael Lebowich and Joshua Fox on May 17, 2019 Posted in Advice, NLRA, NLRB, Section 8(b)(1)(A)

Continuing its efforts to overturn precedent, the NLRB General Counsel’s Division of Advice has issued a new advice memorandum looking to strike at the most recognizable sign of unionism in urban areas today – – the inflatable rat that is used to signal a labor dispute to the public. It has been long held by the Supreme … 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 May 15, 2019 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

Union Not Entitled to Information About How Employer Spends Money From Tax Cut, NLRB General Counsel Rules

By Mark Theodore on December 11, 2018 Posted in Advice, Duty to furnish information, NLRA, NLRB, Section 8(a)(5), Uncategorized

In prior posts, we have discussed how information requests made in the context of a bargaining relationship can be vexing. The standard of the employer’s obligation to provide information can be a moving target, depending on the make-up of the NLRB. For example, for a brief period of time we saw how an employer could be found to have to … Continue Reading

NLRB General Counsel Issues Handbook on Handbook Rules

By Michael Lebowich, Joshua Fox and Jay M. Cohen on June 7, 2018 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

NLRB Ditches Effort To Expand Weingarten Rights to Non-Union Workplaces

By Mark Theodore on September 19, 2017 Posted in Advice, General Counsel, NLRA, NLRB, Non-Union employers, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

Since the change in Presidential administrations, the main topic has turned to what rules will a newly constituted NLRB change? With the addition of Marvin E. Kaplan the Board now has four members, which makes undoing some of the past few years a difficult task. But a four member Board also means there likely will be … Continue Reading

Search Of Company Vehicle Not Employee Interview Triggering Weingarten Rights, NLRB Division of Advice

By Mark Theodore on February 27, 2015 Posted in Advice, Investigations, Investigations, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

The scope of a union-represented employee’s right to have a union representative present during an investigatory interview is one of the more interesting areas of labor law. Even though most people who practice labor relations know the basics of the so-called Weingarten rights, the same types of questions continue to arise because there are an … Continue Reading

No Duty To Bargain Over Discipline During Contract Hiatus, NLRB Division of Advice

By Mark Theodore on December 8, 2014 Posted in Advice, Collective Bargaining, Due Process, General Counsel, NLRA, NLRB, Section 8(a)(5), Uncategorized

The NLRB has been active but quiet during the last few months as the agency quietly reaffirms decisions nullified by the Supreme Court. By all accounts, however, and as history has proved, the NLRB is getting ready to issue an onslaught of law-changing decisions as we head into the holiday season. This onslaught of change … Continue Reading

Advice, Anyone?

By Ronald Meisburg on February 26, 2014 Posted in Advice, General Counsel, Mandatory submissions, NLRA, NLRB

The NLRB General Counsel has issued a memorandum setting out those cases and issues he wants sent from the regional offices to the Division of Advice in Washington, DC. The Division of Advice, as the name suggests, is the arm of the General Counsel’s office which provides legal advice to the General Counsel and to … Continue Reading

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

By Mark Theodore on May 29, 2013 Posted in Advice, Facebook, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Social Media, Social Media Policies

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

By Mark Theodore on March 14, 2013 Posted in Advice, At-Will, Employer policies, General Counsel, Handbook, Mandatory submissions, NLRA, NLRB, Section 7, Social Media Policies, Uncategorized

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

NLRB Division, Some “At-Will” Clauses Ok

By Mark Theodore on November 1, 2012 Posted in Advice, At-Will, Employer policies, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices

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

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

By Mark Theodore on November 7, 2011 Posted in Advice, Employer policies, Facebook, Handbook, LinkedIn, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Social Media, Social Media Policies

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

Greater Access To Employer Property A Priority To Acting NLRB GC

By Mark Theodore on April 12, 2011 Posted in Advice, General Counsel, Mandatory submissions, NLRA, NLRB

Acting NLRB General Counsel Lafe Solomon reiterated a commitment to seek ways for unions to gain greater access to employer property during organizing situations, as well as gain greater leverage in first contract negotiations. In his GC Memorandum 11-11.pdf dated April 12, 2011, the Acting General Counsel identified the types of matters that are required to be … Continue Reading

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