Labor Relations Update

Tag Archives: NLRA

NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected Activity

By Joshua Fox, Mark Theodore and Scott Tan on Posted in Uncategorized
As we have often discussed, there is a fine line between protected and unprotected activity.  Profane outbursts, deliberate misconduct, or highly-disruptive strikes may fall outside the protection of the NLRA, subjecting employees to lawful disciplinary action by their employers. On December 7, 2020, the Board reaffirmed its prior decisions holding that an employer’s discharge of … Continue Reading

A Bias against Neutrality Agreements: NLRB Regional Director Issues Complaint against Hotel for Supporting Organizing Union

By Michael Lebowich, Joshua Fox and Heylee Bernstein on Posted in Uncategorized
On November 30, 2020, the NLRB Regional Director issued a Complaint against the Yotel Boston hotel and Unite Here Local 26, alleging the Hotel unlawfully recognized and provided improper assistance to the Union. The Hotel and the Union were parties to a neutrality agreement.  As is common in such agreements, the Hotel agreed to provide … Continue Reading

D.C. Circuit Remands Hotel Certification Decision and Reminds Board to Explain Its Reasoning

By Mark Theodore, Joshua Fox and Samantha Shear on Posted in Uncategorized
On October 23, 2020, the D.C. Circuit granted Davidson Hotel Company’s petition for review of unfair labor practices resulting from its refusal to bargain with two newly-certified bargaining units, and denied the NLRB’s cross-petition for enforcement of an order to engage in collective bargaining with those units. The Circuit also remanded the underlying unit certification … Continue Reading

Handbook Civility Rules Aimed at Preventing Toxic Work Environments Found Lawful by NLRB’s Division of Advice

By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
The NLRB’s Division of Advice recently released a long-awaited Advice Memorandum (originally issued in February 2019, Chipotle Mexican Grill, Case 28-CA-229134 (Feb. 22, 2019)) concerning the validity of two workplace rules under the Boeing standard: (1) a rule encouraging employees to “[b]e…objective” in their communications; and (2) a rule requiring employees to notify the employer … Continue Reading

NLRB: Employer Tweet Unlawfully Restrained Protected Activity

By Mark Theodore, Joshua Fox and Scott Tan on Posted in Uncategorized
On November 24, 2020, the Board held that a high-level executive’s tweet violated Section 8(a)(1) of the NLRA by interfering with or restraining employees’ protected, concerted activity. In FDRLST Media, LLC, 370 NLRB No. 49 (2020), the Board reaffirmed its longstanding principle that a violation of Section 8(a)(1) does not depend on the employer’s motive … Continue Reading

NLRB Establishes Pathway to Holding More In-Person Manual-Ballot Elections during the COVID-19 Pandemic

By Mark Theodore, Joshua Fox and Yonatan Grossman-Boder on Posted in Uncategorized
As employers faced with a representation petition filed during the COVID-19 pandemic can attest, Regional Directors of the National Labor Relations Board have been incredibly reticent to hold in-person elections.  Indeed, since April 1st, when the Board resumed processing representation petitions, approximately ninety percent (90%) of elections have been held by mail rather than in-person.  … Continue Reading

NLRB Seeks Comment: Rats, Banners and Neutrals, Oh My!

By Mark Theodore, Joshua Fox and Rachel Therese Gulotta on Posted in Uncategorized
An age old question under the National Labor Relations Act is what constitutes “picketing”?  By the Supreme Court’s definition, picketing is inherently coercive and may not be directed against a neutral employer.  An issue that has vexed employers for the last several years has been the use of stationary protests, such as inflatable rats and … 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 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
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