Labor Relations Update

Tag Archives: NLRB

District Court Approves of President Biden’s Firing of Former NLRB General Counsel, But is This the Final Word?

By Steven Porzio and Elizabeth Dailey on Posted in Biden Administration Coverage
As we reported here and here, there are several challenges to the authority of the Acting General Counsel of the National Labor Relations Board, Peter Sung Ohr, given President Biden’s unprecedented move of terminating the sitting General Counsel, Peter Robb, in January 2021. One recent challenge to the Acting General Counsel’s authority was brought before … Continue Reading

Hands Off My Ballot: NLRB Finds that Solicitation of Mail-Ballots is Objectionable Conduct That May Warrant Setting Aside an Election

By Mark Theodore, Joshua Fox and Julia Hollreiser on Posted in Uncategorized
Since the onset of the COVID-19 pandemic, mail-ballot elections—rather than manual, in-person elections, have been mandatory for most NLRB representation elections. The NLRB’s recent ruling, on June 9, 2021, in Professional Transportation Inc., 370 NLRB 132 (2021), provided important guidance regarding when solicitation in the context of such elections constitutes objectionable conduct, such that it … Continue Reading

BREAKING: President Biden Nominates Union-Side Attorney Gwynne Wilcox to Fill NLRB Seat

By Mark Theodore, Joshua Fox and H. Ren Morris on Posted in Uncategorized
On Wednesday, May 26, 2021, President Biden nominated Gwynne Wilcox to fill the last remaining vacancy on the National Labor Relations Board (“Board”).  If confirmed by the Senate, Wilcox would be the second Democrat on the Board, joining Board Chair Lauren McFerran (who had been a member of the Board since 2014, and was appointed … Continue Reading

NLRB Majority: Employer May Continue “No Recording” Rule, Even After Unlawfully Applying it to Single Employee

By Mark Theodore, Joshua Fox and Jordan Simon on Posted in Uncategorized
In AT&T Mobility LLC , 370 NLRB No. 121 (2021), the NLRB majority (Members Ring and Emanuel) held that the Employer could lawfully maintain a workplace policy prohibiting its workers from recording conversations with their co-workers, managers or third-parties, even though its application in one particular circumstance was found unlawful.  Notwithstanding the fact that the … Continue Reading

NLRB: Employer’s “Hard-Bargaining” Proposals—By Themselves—Did Not Violate Duty to Bargain in Good Faith

By Mark Theodore, Joshua Fox and Scott Tan on Posted in Uncategorized
In Universal Health Services, Inc., 370 N.L.R.B. No. 118 (April 30, 2021), the Board dismissed a complaint alleging that an employer’s bargaining proposals seeking significant concessions violated the duty to bargain in good faith.  Notably, the Board found that even when faced with extreme proposals, a union must still “test” the employer’s willingness to make … Continue Reading

NLRB Declines to Address Validity of Acting GC’s Appointment, Instead Deferring the Issue to the Courts

By Steven Porzio, Joshua Fox and Scott Tan on Posted in NLRB
On April 30, 2021, in National Association of Broadcast Employees & Technicians, 370 NLRB No. 114 (2021), the Board declined to opine on the validity of President Biden’s termination of former General Counsel Peter Robb and subsequent replacement with Acting General Counsel Peter Sung Ohr.  It now sets the stage for a federal court of … Continue Reading

NLRB Upholds Contract-Bar Doctrine in Current Form

By Steven Porzio, Joshua Fox and Jessica Guarracino on Posted in NLRB
On April 21, 2021, the National Labor Relations Board (the “Board”) declined to eliminate or modify its long-standing contract-bar doctrine, which purports to provide stability in the relationship among the employer, a collective bargaining representative, and its employee-members.  The Board previously invited comment on the continued application of the contract-bar doctrine in July 2020. The … Continue Reading

Employer’s Policies On Blogging, Solicitation and E-Mail Signature Blocks Lawful, NLRB Rules (For Now, Anyway)

By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRB
Over the past few years, the National Labor Relations Board has frequently weighed in on employer’s workplace and employee handbook policies, examining whether an employer’s policy impacts employees’ rights under Section 7 of the National Labor Relations Act.  Employers received a needed dose of clarity in Boeing Co., 365 NLRB No. 154 (2017), where the … Continue Reading

NLRB General Counsel Promises “Vigorous” Enforcement of Employees’ Rights to Engage in Workplace Advocacy Related to Social Issues and Health and Safety Concerns

By Paul Salvatore, Steven Porzio, Joshua Fox and Shanice Z. Smith-Banks on Posted in NLRB
On March 31, 2021, the NLRB’s Acting General Counsel Peter Ohr issued a Memorandum entitled “Effectuation of the National Labor Relations Act through Vigorous Enforcement of Mutual Aid or Protection and Inherently Concerted Doctrines” to all Regional Directors.  While the Memorandum does not change NLRB precedent in any respect, it is a preview of the … Continue Reading

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

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

Once Again, the House Passes “Protect the Right to Organize Act,” Sending Bill to Senate

By Mark Theodore, Joshua Fox and Eric Novak on Posted in Biden Administration Coverage
As we recently foreshadowed, given the slim Democratic margins in the House and Senate, and a Democratic President, there is the potential for the most significant amendments to the National Labor Relations Act (“NLRA” or “Act”) in its eighty-six (86) year history.  On Tuesday night, March 9, 2021, the U.S. House of Representatives took the … 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 Social Media Policies Lawful, Sheds Light on Impact of Boeing

By Makenzie D. Way, Mark Theodore and Joshua Fox on Posted in Uncategorized
As we have discussed before, several years ago, the Board instituted a significant paradigm shift in analyzing the lawfulness of employers’ handbook policies in relation to employees’ Section 7 rights, when it issued its decision in The Boeing Company, 365 NLRB No. 154 (2017).  Boeing established a balancing test that takes into account the employer’s … 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
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