Labor Relations Update

Category Archives: NLRB

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Unsigned and Torn Up: NLRB Weighs In On Issues Arising During Mail-Ballot Elections

By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRB
Though the National Labor Relations Board has established a pathway for holding in-person union elections, mail-ballot elections continue to be the norm in many Regions across the country.  Of course, the more mail-ballot elections that occur, the more unique issues arise.  In XPO Logistics Freight, Inc., 370 NLRB No. 99 (2021), the Board weighed in … Continue Reading

Tesla and Musk Get a Shock from the NLRB – Tesla CEO Ordered to Delete Union Tweet and Eliminate Overly Broad Confidentiality Policy

By Michael Lebowich, Joshua Fox and Abigail Rosenblum on Posted in NLRB
In its March 25 decision, the NLRB unanimously held that:  (1) Tesla violated the National Labor Relations Act (“NLRA”) after prohibiting employees from talking to the media; (2) Tesla did not violate the Act by calling employees into a meeting to discuss their potential unionization; and (3) Tesla must order CEO Elon Musk to delete his … Continue Reading

NLRB Suffers Significant Turnover in Agency Staffing

By Steven Porzio and Shanice Z. Smith-Banks on Posted in NLRB
In a report released on March 29, 2021, the Governmental Accountability Office (“GAO”) announced that between fiscal years 2010 and 2019, the National Labor Relations Board (“NLRB”) experienced a 26% decrease in total staff. The most significant reductions taking place in Regional offices which saw a 33% reduction compared to only an 8% reduction at … Continue Reading

BREAKING: NLRB Withdraws Proposed Rule Concerning Employee-Status of Student Teachers and Research Assistants

By Paul Salvatore, Steven Porzio and Elizabeth Dailey on Posted in NLRB
After publishing the Notice of Proposed Rulemaking over a year ago, followed by tens of thousands of public comments and many months of anticipating the final rule, the NLRB announced today that it will publish a Notice of Withdrawal of the proposed student assistant rule. Under the proposed rule, students at private colleges and universities … Continue Reading

Board Invites Briefing on Potentially Overturning “Johnnie’s Poultry” Standard for Questioning of Employees About Putative Protected Activity

By Steven Porzio and Austin McLeod on Posted in Biden Administration Coverage, NLRB
On Monday, the Board voted 3-1 to solicit a public briefing on whether it should overrule the Johnnie’s Poultry Co., 146 NLRB 770 (1964) safeguards employees must receive if they are questioned by employers about their own or another employees’ potentially protected concerted activity. Those safeguards include requiring the following: The employer must communicate to … Continue Reading

Recent Labor Victories for Adjunct Professors Signal Likely Uptick in Contingent Faculty Organizing

By Paul Salvatore, Steven Porzio and Elizabeth Dailey on Posted in NLRA, NLRB
Recently, adjunct professors at Elon University and Ithaca College won victories before the NLRB and an American Arbitration Association arbitrator, respectively, that further bolster the position that adjunct, or contingent, faculty members are “employees” as defined by the NLRA.  Moreover, it also suggests that there will likely be a surge of new organizing activity amongst … Continue Reading

NLRB: Initial Burden of Union Animus Met Largely by Timing of Employer’s Discharge of Employee

By Joshua Fox, Mark Theodore and Michelle Lappen on Posted in NLRB
It is an unfair labor practice for an employer to retaliate against (1) union supporters pursuant to Section 8(a)(3) of the National Labor Relations Act (the “Act”), and (2) employees for filing a complaint with the National Labor Relations Board, testifying in a Board proceeding, or otherwise utilizing the Board’s processes, under Section 8(a)(4).  Both … Continue Reading

BREAKING: President Biden Nominates Former Deputy General Counsel Jennifer Abruzzo for NLRB General Counsel

By Mark Theodore, Joshua Fox and Michelle Lappen on Posted in NLRB
President Biden nominated Jennifer Abruzzo, Special Counsel for Strategic Initiatives for the Communications Workers of America, to be General Counsel of the National Labor Relations Board. Abruzzo was a Board veteran with more than two decades at the agency before becoming the union’s point person on NLRB issues. She was NLRB Deputy General Counsel and … Continue Reading

No “Finite Fellows” in the Bargaining Unit – the Board Weighs in on Temporary Workers

By Mark Theodore, Joshua Fox and Dominique Kilmartin on Posted in Bargaining units, NLRB, NLRB Election Rules
When it comes to fellowship—and collective bargaining—it looks like “fellows” aren’t treated the same as their permanent status co-workers.  In Phoenix News Times, LLC and The Newsguild–CWA, 370 NLRB No. 84 (Feb. 10, 2021), the National Labor Relations Board (the “Board” or “NLRB”) found that workers employed at a Phoenix newspaper in a fellowship program … Continue Reading

NLRB Acting General Counsel Strikes Again, Directs Agency to Withdraw Complaints Attacking Neutrality Agreements

By Mark Theodore, Joshua Fox and Dominique Kilmartin on Posted in NLRB
As we recently reported, National Labor Relations Board Acting General Counsel Peter Sung Ohr recently gave us a peek behind the curtain at his prosecutorial priorities as General Counsel when he rolled back a number of General Counsel Memoranda issued by his predecessor, Peter Robb.  Consistent with that roll back, Ohr recently directed the agency … Continue Reading

NLRB Acting General Counsel Rolls Back Guidance from Prior Administration

By Mark Theodore, Michael Lebowich, Joshua Fox and Alex Downie on Posted in NLRB
On February 1, National Labor Relations Board (“NLRB”) Acting General Counsel Peter Sung Ohr rescinded a slew of General Counsel Memos issued by his predecessor, Peter Robb. On February 2, Ohr continued his actions by rolling back two Operations Management memos that were also issued during Robb’s term. Ohr’s actions come one week after he … Continue Reading

NLRB Sees First Challenge to the Authority of Acting NLRB General Counsel’s to Process Unfair Labor Practice Cases after Recent Shakeup

By Michael Lebowich, Joshua Fox and Samantha Shear on Posted in NLRB
In the first known of its kind objection to an ongoing NLRB proceeding, an employer has urged the NLRB to dismiss an unfair labor charge against it, arguing that the agency is unable to prosecute the matter, in light of President Biden’s unprecedented firing of then-General Counsel Peter Robb and Deputy GC Alice Stock, and … Continue Reading

After Unprecedented Firings of General Counsel and Deputy General Counsel, President Biden Names Peter Sung Ohr Acting General Counsel of the NLRB

By Mark Theodore, Michael Lebowich, Joshua Fox, Samantha Shear and Heylee Bernstein on Posted in Biden Administration Coverage, General Counsel, NLRB
President Biden named Peter Sung Ohr as Acting General Counsel of the National Labor Relations Board today. Ohr is a career employee of the NLRB, having served as a Field Attorney, Deputy Assistant General Counsel in the NLRB’s Division of Operations-Management, and as Regional Director of the Board’s Chicago Regional Office. Biden’s action comes after … Continue Reading

BREAKING: President Biden Continues NLRB Shake-Up By Firing Acting NLRB GC

By Mark Theodore, Michael Lebowich, Joshua Fox, Samantha Shear and Heylee Bernstein on Posted in Biden Administration Coverage, General Counsel, NLRB
One day after a standoff between President Biden and NLRB General Counsel Peter Robb resulted in his unprecedented termination, President Biden fired the NLRB’s second-ranked attorney, NLRB Deputy General Counsel Alice Stock, according to a Bloomberg report.  Stock would have served as Acting NLRB General Counsel after Robb’s termination on January 20th.  As of this … Continue Reading

Breaking: On First Day in Office, President Biden Shakes Up NLRB By Firing GC and Appointing New Chair

By Mark Theodore, Michael Lebowich, Joshua Fox, Samantha Shear and Heylee Bernstein on Posted in Biden Administration Coverage, General Counsel, NLRB
*** UPDATE:  On his first day in office, President Biden fired NLRB General Counsel Peter Robb, according to a report by Bloomberg News. This marks the first time in the history of the NLRB that a President has terminated the agency’s General Counsel before the expiration of their term. As we reported earlier below, President … Continue Reading

NLRB Finds Employer Acted Lawfully by Paying Statutory Minimum Christmas Bonus, Rejecting Unilateral Change and CBA Modification Claims

By Mark Theodore, Joshua Fox and Heylee Bernstein on Posted in NLRA, NLRB, Section 8(a)(5)
On January 14, 2021, the NLRB issued a decision in Asociacion de Empleados del Estado Libre Asociado de Puerto Rico, 370 NLRB No. 71. The decision involved the issue of whether a term of employment contained in a collective bargaining agreement continues after the expiration of the contract. This issue has been vexing for employers … 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 Advice Memorandum: Firing Employees Because of Discussions Related to Tip-Pooling Violates Section 8(a)(1)

By Mark Theodore, Joshua Fox and Heylee Bernstein on Posted in Advice, NLRA, NLRB, Protected activity, 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: 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

NLRB Division of Advice Dishes Some Guidance With Respect to COVID-Related ULP Charges

By Mark Theodore, Joshua Fox and Abigail Rosenblum on 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

Senate Confirms Pair of Appointees to National Labor Relations Board

By Steven Porzio, Joshua Fox and Samantha Shear on Posted in NLRB, Uncategorized
In a package deal, the U.S. Senate confirmed the appointments of two members to the National Labor Relations Board (“Board” or “NLRB”).  Lauren McFerran, who previously served as a member of the NLRB for five years until her term expired on December 16, 2019, will rejoin the current Board as its only Democrat.  Current Republican … Continue Reading

National Labor Relations Board Announces Another Proposed Rule Regarding Representation Elections

By Steven Porzio, Joshua Fox and Samantha Shear on Posted in NLRB, NLRB Election Rules
On Tuesday, July 28, 2020 the National Labor Relations Board (NLRB or “the Board”) published a Notice of Proposed Rulemaking in the National Federal Register. With its latest foray into rulemaking, the Board is looking to make two amendments to the current rules governing representation elections held under the National Labor Relations Act.  Both these … 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
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