Labor Relations Update

Tag Archives: NLRA

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 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

No Reasonable Expectation of Recall? No Election: Board Cancels Union Election at Casino Closed During COVID-19

By Mark Theodore, Joshua Fox and Dominique Kilmartin on Posted in Coronavirus, COVID-19, NLRB Election Rules, Uncategorized
The National Labor Relations Board recently cancelled a union election at a Las Vegas casino that suspended its operations and laid off employees amid the COVID-19 pandemic. In NP Texas LLC d/b/a Texas Station Gambling Hall and Hotel and Local Joint Executive Board of Las Vegas, 370 NLRB No. 11 (2020), the Board found that … 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

NLRB Upends Context-Specific Tests for Profane Conduct, Folding Such Discipline Into Traditional Motivation Tests For Evaluating Lawfulness

By Mark Theodore, Joshua Fox and Caroline Guensberg on Posted in Uncategorized
In another long-anticipated decision, on July 21, 2020, in General Motors LLC, 369 NLRB No. 127 (2020), the Board replaced three context-specific rules for determining whether certain abusive conduct committed by employees is protected under Section 7 of the National Labor Relations Act (the “Act”) with the Wright Line standard that is traditionally used to … Continue Reading

NLRB Restores Precedent, Gives Employers Freedom to Unilaterally Discipline Union Employees Between Certification and First Contract

By Peter D. Conrad, Joshua Fox and Dominique Kilmartin on Posted in Uncategorized
The National Labor Relations Board continues to overrule Obama-Board precedent at a rapid pace.  (See our prior blog posts here, here and here for a few recent examples.) On June 23, 2020, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the Board overturned  Total Security Management … Continue Reading

NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements

By Mark Theodore, Joshua Fox and Jacob L. Hirsch on Posted in Uncategorized
In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality provision that arguably restricted an employee participating in the arbitration process from disclosing terms and conditions of employment violates the NLRA. The Board held, … 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

NLRB Establishes Bright-Line Test Denying Jurisdiction over Religious Educational Institutions

By Mark Theodore, Joshua Fox and Eric Novak on Posted in NLRA, NLRB, Section 7
We have seen this movie before.  NLRB precedent established by the Board under the prior Administration conflicted sharply with decisions by the D.C. Circuit reviewing the Board.  Then the current iteration of the Board reverses its own precedent and sides with the D.C. Circuit.  This situation occurred recently with regard to whether the “clear and … Continue Reading

Union’s Efforts to Scare Employees From Participating in Employer Investigations Rebuked by the Board

By Mark Theodore, Joshua Fox and Austin McLeod on Posted in 8(b)(2), Investigations, NLRA, NLRB, Section 8(b)(1)(A)
On June 5, 2020, the NLRB held, in Teamsters Local Union No. 735-S (Bemis Co., Inc.), 369 NLRB No. 97, that union officials’ retaliatory actions against members who participated in an investigation resulting in the discharge of the union president violated the NLRA’s prohibitions against union restraint or coercion (Section 8(b)(1)(A)) and causing employer discrimination … Continue Reading

NLRB Redefines “Solicitation,” Broadening Conduct that may be Considered Unprotected

By Mark Theodore and Eric Novak on Posted in NLRB
On May 29, 2020, the NLRB issued an important opinion overruling two decisions in order to define the term “solicitation” in a manner consistent with prior Board decisions and the dictionary definition of the term. Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020). In defining “solicitation,” the Board held that “where an employee makes … Continue Reading

NLRB: Policy Prohibiting Personal Cell Phones in Work Areas Due to Safety Concerns May Be Lawful under Boeing

By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized
As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases. The Board has struggled for years with the concept that certain commonsense employer business policies can be unlawful. It is difficult to draw bright-line rules … Continue Reading

“Hard” Bargaining Proposals Placed Into Final Offer Evidence Bad Faith Bargaining, NLRB Concludes

By Mark Theodore and Heylee Bernstein on Posted in Section 8(a)(1), Section 8(a)(5)
On May 21, 2020, the NLRB issued a decision in Altura Communication Solutions, LLC. The case asked the Board to consider whether a series of broad proposals made by the employer during collective bargaining amounted to bad faith bargaining and 8(a)(1) and 8(a)(5) violations. The Board noted that while it is not its role to … Continue Reading

NLRB Regions Hold Information Sessions to Discuss Representation Case Changes

By Mark Theodore, Joshua Fox and Heylee Bernstein on Posted in NLRB Election Rules
In December 2019, the NLRB announced its Final Rule governing representation case procedures. The Final Rule applies to petitions filed on or after May 31, 2020. With the effective date fast approaching, NLRB Regions nationwide are holding public information sessions to explain these changes. Recently, on May 21, 2020, Region 25 in Indianapolis hosted its … Continue Reading

Update: NLRB Extends Suspension of Notice-Posting Requirements to Cases Involving Informal Settlement Agreements

By Peter D. Conrad, Joshua Fox and Alex Downie on Posted in COVID-19, NLRA, NLRB
As we discussed here, the National Labor Relations Board decided early this month that it would temporarily suspend the remedial notice-posting and emailing requirement at facilities shut down due to the COVID-19 pandemic until after reopening and a return of a “substantial complement” of employees.  See Danbury Ambulance Service, Inc., 369 NLRB 68 (2020). The … Continue Reading

NLRB Establishes Bright-Line Rule Voiding Election Ballots with Dual or Additional Markings

By Mark Theodore and Scott Tan on Posted in NLRA, NLRB, Representation Elections
One area of controversy over the years is the NLRB’s attempt to interpret markings on representation ballots that are not clearly “yes” or “no.”  This has given rise to a number of tests for divining voter intent.  Overruling decades of conflicting precedent involving the interpretation of a voter’s intent, the NLRB issued a key decision … Continue Reading

NLRB: Hearings in Representation Cases with Witnesses Must Be Conducted By Videoconference during COVID-19 Pandemic

By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRA, NLRB, NLRB Election Rules, Representation Elections
As most of the country’s workforce continues to adjust to the new realities of social distancing, stay-at-home orders, and limited travel, the practice of law and the forums for adjudicating disputes have shifted to video and telephonic hearings to ensure that the wheels of justice continue to turn notwithstanding COVID-19.  The NLRB has been no … Continue Reading

NLRB Suspends Remedial Notice-Posting Requirements for Facilities Shutdown During COVID-19 Pandemic

By Mark Theodore, Joshua Fox and Scott Tan on Posted in NLRA, NLRB
The Board continues to issue decisions amidst the COVID-19 pandemic, while acknowledging that business operations around the country are far from “business as usual.” The agency is up and running.  Representation elections vote counts are being conducted via video conference as are hearings.  The remedy stage of unfair labor practice proceedings also has caught up … Continue Reading

NLRB: Unions Also Obligated To Provide Timely Relevant and Necessary Information Requested by Employers

By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Duty to furnish information, Duty to provide information, NLRA, NLRB, Section 8(b)(3)
We have often reported about how an employer’s failure to adequately respond to an information request made by a union can lead to unfair labor practice charges and litigation.  Sometimes a union makes an information request for strategic reasons, not for any representational reason.  Sometimes, an employer’s response can lead to further complications. The same … Continue Reading

NLRB: Changes in Workplace Policies Not Applicable to Union Employees do not Constitute a Unilateral Action by the Employer

By Mark Theodore and Elizabeth Dailey on Posted in COVID-19, NLRB
As the NLRB continues to navigate the uncertainty in the work landscape during the ongoing COVID-19 pandemic, it seems to have stayed largely on course, regularly issuing decisions touching on a number of important topics under the Act. One such important topic that the Board has devoted recent attention to has been the issue of … Continue Reading

NLRB Reaffirms Limitations on Employers’ Ability to Solicit Employee Assistance in Anti-Union Campaigning and Confidentiality Restrictions

By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in NLRA, NLRB, Section 8(a)(1)
In maintaining business as usual as best it can amidst the ongoing COVID-19 crisis, the Board recently decided an issue concerning limitations on employer campaign tactics, and an employer’s limits in restricting discussions with employees related to terms and conditions of employment. In First American Enterprises d/b/a Heritage Lakeside, 369 NLRB No. 54 (2020), the … Continue Reading

Update: NLRB Delays Implementation of Final Election Rule Changes to July 31, 2020

By Mark Theodore and Joshua Fox on Posted in COVID-19, NLRA, NLRB
As we reported here, on April 1, 2020, the NLRB published its final rule making three amendments to its rules and regulations governing union elections (relating to the Board’s blocking charge policy; timing and notice requirements attendant to voluntary recognition; and 9(a) recognition in the construction industry).  The rule was expected to be effective as … Continue Reading
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