Labor Relations Update

Tag Archives: NLRB

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

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

By Joshua Fox, Jacob P. Tucker and Mark Theodore 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: An Inference of Union Animus Must Be Grounded in Sufficient Supporting Evidence under Wright Line

By Elizabeth Dailey, Joshua Fox and Mark Theodore on Posted in Uncategorized
When an employee is disciplined and then claims the employer acted on account of union animus in violation of Section 8(a)(3) of the Act, evidence to support such a claim either can be proffered through direct evidence, such as “smoking gun”-type statements made by a supervisor or top-management that the discipline was implemented due to … Continue Reading

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
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