Labor Relations Update

Tag Archives: General Counsel

NLRB Holds that Leaflet Outlining Consequences for Threatening Workers Is Not Unlawful

By Mark Theodore, Joshua Fox and Jacob P. Tucker on Posted in Uncategorized
In adopting the ALJ’s Recommended Order in S&S Enterprises, LLC d/b/a Appalachian Heating, Case No. 09-CA-235304, the NLRB found that a leaflet distributed by the employer during union organizing efforts, which stated that it is against federal law for a labor union to threaten employees, did not violate the NLRA because it did not constitute … Continue Reading

NLRB Issues Several Advice Memoranda Providing Guidance on COVID-Related and Other Workplace Issues

By Steven Porzio, Joshua Fox, Dominique Kilmartin and Jordan Simon on Posted in Uncategorized
On September 15, 2020, the National Labor Relations Board (the “NLRB” or “Board”) Division of Advice (“Advice”), published four Advice Memoranda addressing an array of issues ranging from COVID-19-related unilateral actions to non-work political advocacy and the legality of confidentiality provisions in separation agreements.  The Memoranda were drafted by Advice last month, and join 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 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 Finds Employer Lawfully Terminated “Known” Union Supporter Despite Finding Its Justification Was Pretextual

By Steven Porzio and Laura Franks on 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

NLRB General Counsel Issues Handbook on Handbook Rules

By Michael Lebowich, Joshua Fox and Jay M. Cohen on 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 Gains a New General Counsel With Senate Confirmation of Peter B. Robb

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Uncategorized
By a vote of 49 to 46, the U.S. Senate confirmed Peter B. Robb as the General Counsel of the NLRB.  Mr. Robb, who replaces former General Counsel Richard Griffin, is the 33rd person to hold the position since the NLRA was passed in 1935.  We have previously discussed how the newly constituted Board is likely to change … Continue Reading

Senate Confirms Appointment of William J. Emanuel to NLRB; Board Has Full Complement,- For Now

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Uncategorized
In a 49-47 vote today, the Senate confirmed William J. Emanuel’s appointment to the NLRB.  Once Mr. Emanuel is sworn in, it will be first time since 2015 that the NLRB has had a full five members.  Before 2015, years of gridlock often saw the Board at less than full strength, which resulted in all sorts of mayhem, … Continue Reading

HR Generalist’s Threat To Bring In Union Not Protected, NLRB Rules

By Mark Theodore on Posted in Employer policies, General Counsel, NLRA, NLRB, Non-Union employers, Protected activity, Section 8(a)(1), Uncategorized
One of the most interesting things about labor relations is the unusual situations human resources professionals have to deal with on a day to day basis.  If you are at a cocktail party with a human resources professional, ask them what the most unusual thing they’ve ever encountered on the job and chances are you’ll … Continue Reading

Supreme Court Holds that Lafe Solomon Improperly Served as NLRB General Counsel

By Mark Theodore and Joshua Fox on Posted in General Counsel, NLRB, Unfair Labor Practices
The Supreme Court has dealt another blow to the stability of the National Labor Relations Board. In a 6-2 decision, in, National Labor Relations Board v. SW General, Inc. DBA Southwest Ambulance, USSC Case No. 15-1251 (March 21, 2017),  the  Court held that the NLRB’s prior Acting General Counsel, Lafe Solomon, who served as acting GC while awaiting … Continue Reading

DC Circuit: NLRB Acting General Counsel Solomon’s Tenure Violated Vacancy Statute, Unfair Labor Practice Complaint Unauthorized

By Mark Theodore on Posted in NLRA, NLRB, Recess appointments, Uncategorized
The political gridlock in Washington DC caused several years of tumult at the NLRB, spawning two Supreme Court decisions (Noel Canning and New Process Steel) and several courts of appeals decisions regarding the Board’s ability to act without regular appointments, and resulted in scores of decisions having to be reconsidered by a newly constituted Board.  Most … Continue Reading

Furloughed NLRB Employees Return to Work — Will GC Nominee Griffin be Next?

By Ronald Meisburg on Posted in General Counsel, Uncategorized
On the same day that furloughed federal government employees are returning to work, it is being reported that a roll call vote will be scheduled in the Senate to invoke cloture (i.e., end debate) on the nomination of Richard Griffin to be General Counsel of the NLRB.  The vote is reportedly scheduled for 5:30 p.m. on Monday, Oct. 28, 2013.  We assume that cloture … Continue Reading

I Just Want to Testify

By Ronald Meisburg on Posted in General Counsel, NLRB
I had the opportunity last week to testify before the U.S. House of Representatives Committee on Education and the Workforce, Subcomittee on Health, Education, Labor and Pensions.  The subject of my testimony was “What to Look for from the New NLRB.”  A copy of my written testimony is here, and I trust readers will find it of interest. With … Continue Reading

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

By Mark Theodore on 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 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

Holiday Season Extravaganza: NLRB Issues Flurry Of Law Changing Decisions

By Mark Theodore on Posted in Arbitration, Collective Bargaining, Duty to furnish information, Duty to provide information, Facebook, General Counsel, NLRA, NLRB, Pre-arbitration Discovery, Protected activity, Section 7, Section 8(a)(1), Section 8(a)(5), Uncategorized
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

NLRB Division, Some “At-Will” Clauses Ok

By Mark Theodore on 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

NLRB: Employer’s Harassment Investigation Lawful, But Not Resulting Discipline

By Mark Theodore on Posted in Decertification elections, Handbook, Leaving work without permission, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices
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

Acting NLRB GC Issues Additional Report On Social Media – Somewhat Useful

By Mark Theodore on Posted in Facebook, General Counsel, Social Media
The Acting General Counsel of the NLRB has issued today an “updated” report on social media cases.   As we have reported frequently here, the NLRB has taken action against employers who clamp down on employee use of social media that may implicate the National Labor Relations Act.  At times, the NLRB has struggled with … Continue Reading

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

By Scott Faust on Posted in Employer policies, General Counsel, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Social Media, Unfair Labor Practices
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 Issues Complaint in NY Facebook Case

By Scott Faust on Posted in NLRB, Protected activity, Section 7, Section 8(a)(1), Social Media
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 Acting General Counsel Clarifies Duty to Provide Information in Bargaining

By Scott Faust on Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, General Counsel, NLRB, Section 8(a)(5)
In a May 17 memorandum, NLRB Acting General Counsel Lafe Solomon furnished guidelines to Regional Directors concerning parties’ obligation to provide information in collective bargaining negotiations.  GC Memorandum 11-13  traces the development of two different analytical frameworks for assessing a party’s obligation to provide requested information to its bargaining counterpart.  The first applies to cases involving … Continue Reading

NLRB Chairman, Acting General Counsel Defend Recent Actions in Correspondence to House Subcommittee

By Ronald Meisburg on Posted in Uncategorized
NLRB Chairman Wilma Liebman and Acting General Counsel Lafe Solomon have submitted letters to a House subcommittee in response to witness testimony criticizing recent activity of the Board and the Acting General Counsel.  The testimony was given at a February 11th hearing on “Emerging Trends at the National Labor Relations Board” before the House Subcommittee on Health, Employment, … Continue Reading

NLRB Adopts Enhanced Remedies in Refusal to Bargain Case

By Ronald Meisburg on Posted in Uncategorized
The National Labor Relations Board has ordered an employer to bargain with a union for at least 16 hours per week and to submit a progress report to the NLRB Regional Director every 30 days.  The case, Gimrock International involved an employer who, the Board found, had for several years failed to bargain in good faith for a first contract with the union … Continue Reading

NLRB GC To Regional Directors: Scrutinize Arbitration Decisions That May Implicate the NLRA

By Mark Theodore on Posted in Arbitration, Deferral, General Counsel, NLRB
The Acting General Counsel of the NLRB, Lafe Solomon, continued to shake up the way matters are handled at the agency, by issuing new guidelines for the handling of pre- and post-arbitration cases.  The new policy guidelines will have an immediate impact on cases where the employment action (usually a discharge) has prompted both a grievance (alleging … Continue Reading
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