Category Archives: Unfair Labor Practices

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“Fight On”; NLRB’s Regional Office Pursuing Unfair Labor Practice Charges on Behalf of College Athletes against USC, Pac-12, and NCAA

On December 15, 2022, the Regional Director of the Los Angeles Region of the National Labor Relations Board (“NLRB” or “Board”) found “merit” in the unfair labor practice charges filed by football and men’s and women’s basketball players against the University of Southern California (“USC”), the Pac-12 Conference, and the NCAA. The charges raise the … Continue Reading

Johnnie’s on the Spot; Board Reaffirms Standards for Employer Interrogations of Employees in Preparation for NLRB Proceedings

By Joshua Fox, Steven Porzio and Alexander J. Blutman on December 16, 2022 Posted in Investigations, NLRA, NLRB, Section 7, Unfair Labor Practices, Witness statements, Workplace Investigations

On the eve of the last day of Member Ring’s term, and in the third in a string of significant rulings by the National Labor Relations Board (“NLRB” or “Board”) (which we reported on here and here)—with potentially more to come—the Board, in Sunbelt Rentals, Inc., 372 NLRB No. 24 (2022), affirmed the standards applicable … Continue Reading

A Direct Hit: NLRB Expands Make-Whole Remedies to Cover All “Direct or Foreseeable” Financial Harm

By Michael Lebowich, Joshua Fox and Hannah Morris on December 15, 2022 Posted in NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(5), Unfair Labor Practices

In a decision, Thryv, Inc., 372 NLRB No. 22, that was foreshadowed by recent invitations for briefs and prosecutorial conduct by NLRB General Counsel Jennifer Abruzzo (see our prior posts here and here), the National Labor Relations Board (“NLRB” or “Board”) issued a significant ruling on December 13, 2022, that the standard make-whole remedy for … 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

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

By Joshua Fox, Mark Theodore and Heylee Bernstein on January 3, 2020 Posted in Arbitration, Deferral, NLRA, NLRB, Section 8(a)(1), Section 8(a)(3), Unfair Labor Practices

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

NLRB Continues to Aid Workers in Ousting Unions

By Mark Theodore and Annabel Pollioni on October 25, 2019 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

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

By Mark Theodore and Joshua Fox on September 11, 2019 Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Unfair Labor Practices

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

By Mark Theodore, Joshua Fox and Jacob P. Tucker on September 3, 2019 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: Employer Did Not Unlawfully Discontinue Christmas Bonus

By Mark Theodore on August 19, 2019 Posted in Collective Bargaining, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor Practices

Summer is winding down but the NLRB continues to be a source of vigorous activity. The Board recently issued a sweeping decision regarding the lawfulness of arbitration agreements. Also, the Board announced its intention to change the so-called ambush election rules. Of course, the Board continues to issue decisions on a regular basis. Discussion of some of … Continue Reading

NLRB Finds Employer Lawfully Terminated “Known” Union Supporter Despite Finding Its Justification Was Pretextual

By Steven Porzio and Laura Franks on August 10, 2019 Posted in General Counsel, NLRA, NLRB, Section 8(a)(3), Unfair Labor Practices

In a 2-1 decision issued on August 2, 2019, the National Labor Relations Board (the “Board”) in Electrolux Home Products, Inc., 368 NLRB No. 34 (2019) reversed an Administrative Law Judge’s (“ALJ”) decision, and held that Electrolux’s discharge of a “known” union supporter employee did not violate the National Labor Relations Act (“NLRA” or “Act”), … Continue Reading

Independence Day Comes Early For Employees Seeking To Shed Union Representation

By Mark Theodore and Joshua Fox on July 5, 2019 Posted in Bargaining units, NLRA, NLRB, Section 8(a)(5), Unfair Labor Practices

On the eve of Independence Day, the NLRB, in a 3-1 decision (Member McFerran dissented), clarified the law concerning withdrawal and enunciated a new framework for determining whether a union has retained majority support at the conclusion of a contract term. In Johnson Controls, Inc., 368 NLRB No. 20 (2019), the Board significantly streamlined the … 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 May 16, 2019 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: Employer’s Reasons For Policy Changes Kept Union’s Information Request Alive Even After Proposals Withdrawn

By Mark Theodore on April 4, 2019 Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, Employer policies, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor Practices

Information requests in the realm of labor relations are simple in theory but can be complicated in practice. We have seen how the topics of information sought by a union can cause skirmishes, sometimes deliberately so. We also have seen that it almost never is a good idea for a party to just deny a request for relevant information … Continue Reading

Employee’s Complaint About Low Tippers Not Protected Concerted Activity, NLRB Majority Rules

By Mark Theodore on February 1, 2019 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

NLRB Majority: Unqualified Notice to Picket Jobsite Where Neutrals Are Present Violates Act

By Mark Theodore on January 11, 2019 Posted in General Counsel, NLRA, NLRB, Uncategorized, Unfair Labor Practices

We recently saw interesting decisions from the NLRB including cases about the employer’s duty to provide information about tax cuts, the lawfulness of litigation holds, and the validity of decertification petitions. At the end of December, a divided NLRB took on a case involving a union’s threat to picket a work location where multiple employers are present. In IBEW Local 357 (Convention Technical … Continue Reading

Decertification Petition Was Improperly Dismissed, NLRB Rules

By Mark Theodore on January 4, 2019 Posted in Decertification elections, NLRA, NLRB, Protected activity, Representation Elections, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices

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

NLRB Issues Strategic Plan for Coming Years

By Mark Theodore on December 13, 2018 Posted in Bargaining units, NLRB, NLRB Election Rules, Specialty Healthcare, Uncategorized, Unfair Labor Practices

The NLRB recently made public its NLRB Strategic Plan FY 2019-FY2022 wherein it states it wants to reduce time to handle cases before it by 5% per year at each stage of the case processing. The Strategic Plan provides an excellent snapshot of NLRB operations (page 3) but not much can be read into, or from, this document, which is … Continue Reading

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

By Mark Theodore on October 23, 2018 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

NLRB Majority Decides 50-50 Balls In Employer Favor

By Mark Theodore on October 15, 2018 Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices

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

By Mark Theodore on August 27, 2018 Posted in General Counsel, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized, Unfair Labor Practices

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

Arbitration Class Waivers, Past Practice (not established) and Skirmishing Over Information Requests All Part of Recent NLRB Action

By Mark Theodore on August 8, 2018 Posted in Collective Bargaining, Confidentiality, Duty to furnish information, Duty to provide information, General Counsel, Handbook, Investigations, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor Practices, Workplace Investigations

Since December 2017, when the Board issued a number of decisions which restored precedent that had been changed in the last few years, (discussed here, here, here, and here), not much of note has been happening at the Board. Indeed, there was not a full complement at the Board until April when Chairman Ring was confirmed. Two upcoming events may see … Continue Reading

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

By Mark Theodore on June 28, 2018 Posted in NLRA, NLRB, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

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

By Mark Theodore on May 9, 2018 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

Impulse Control? NLRB Finds Employee’s Misconduct To Be Deliberate and “Predetermined” and Not Protected

By Mark Theodore on March 2, 2018 Posted in General Counsel, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized, Unfair Labor Practices

The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development, remember that this agency had scores of decisions overturned for lacking a proper quorum only to wait, quietly, and … Continue Reading

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