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
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
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
In the past, we frequently have discussed protected activity and how an employee’s profane outburst or deliberate conduct may render otherwise protected activity, “unprotected.” However, as this recently issued decision reinforces, the Board is usually quite tolerant of impulsive behavior and outbursts in response to legitimate grievances over the terms and conditions of employment. Plant … Continue Reading
The right of employees to band together for purposes of bringing grievances to their employer is at the very core of the National Labor Relations Act, as embodied in Section 7. This right is called protected concerted activity. In order to determine whether an employee is, in fact, engaged in protected concerted activity, it is necessary to … Continue Reading
The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development, remember that this agency had scores of decisions overturned for lacking a proper quorum only to wait, quietly, and … Continue Reading
NLRB Reverses Precedent on Joint Employer Liability and Standard Governing Employee Handbooks This afternoon, just two days prior to the end of Chairman Philip Miscimarra’s term, the NLRB issued a pair of 3-2 decisions overruling significant precedent regarding joint-employer status and the legal standard governing whether workplace rules violate the exercise of Section 7 rights … Continue Reading
The new NLRB General Counsel Peter Robb has been fast at work. A short two weeks after being sworn in on November 17, 2017, the new General Counsel issued a memorandum making clear his intention to re-examine much of the legal precedent that was changed during the last 8 years,–and to undo many other initiatives … Continue Reading
The NLRB suffered a setback this week when its interpretation of Weingarten rights was rebuffed by the D.C. Court of Appeals. This is the same court that recently declared the agency was acting more as an “advocate than adjudicator” in a case involving access to an employer’s premises. Weingarten, which derives its name from the United … Continue Reading
The last few decisions issued by the NLRB have addressed a wide spectrum of rather unique situations. Just in the last several days we saw decisions involving a combative registered nurse and a human resources representative threatening unionization. So, perhaps, one of the Board’s most recent decisions is not all that unusual….it simply involves a case … Continue Reading
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
The change in a presidential administration always brings changes to government agencies, including the NLRB, as new appointments are made reflecting the policy preferences of the administration. The NLRB is not immune to this change and it has been historical practice for the president to appoint three members from the party of the administration and … Continue Reading
The first day of employment is often chaotic. New employees must learn their way around the jobsite, meet (and remember the names of) many new people and otherwise familiarize themselves with working at a new job. Oh, and there’s the paperwork. Seemingly endless mounds of paperwork. New employees are asked to sign a multitude of documents … Continue Reading
We know that, among many other common employer policies, the NLRB considers many mandatory arbitration agreements to be unlawful, particularly where they prohibit class or collective actions. See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014). Unlike a more run of the mill handbook violation where the government seeks removal or modification of the policy, an … Continue Reading
As the NLRB continues to wade through the pool of issues arising from social media policies and other workplace rules, an Administrative Law Judge’s recent decision in Cellco Partnership d/b/a Verizon Wireless (July 25, 2014) illustrates the growing number of problems employers face in developing corporate policies and the variability of NLRB decisions. In this … Continue Reading
A theme we have followed here with interest is protected concerted activity, and what kinds of conduct might render otherwise protected activity “unprotected.” We noted, for instance, that the Board recently held that an employee’s use of derogatory gender-based comments may not not render a protected outburst “unprotected,” even if the EEOC and the myriad State … Continue Reading
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
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
An issue we have discussed previously is whether all employee action that is “concerted” is also protected by the NLRA. We have seen that maliciously false statements made to third parties are unprotected. But what about when employees disagree with managerial control of the operations? How far can they press their claims? When it comes to … Continue Reading
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
The Board’s fiscal year ended on September 30 with a whimper instead of a bang. We saw a few decisions in the usual year end flurry but most of the major Board initiatives were advanced in the last two years, and so this probably is a calm before the Presidential election. Yet change still is occurring. … Continue Reading
The NLRB has received a lot of attention for its actions the last couple years. One of the storms was caused by the agency’s attention to employer actions based on employee Facebook postings. More to the point, employers were not too thrilled with some things being posted by employees on the internet for the multitudes to see, … Continue Reading
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
Last year the NLRB’s order of the day was sweeping change. That brought us the employee rights poster, the ambush election rules, and micro unions. The Board today is not acting in such a bold manner, and instead is seeking gradual change through a policy of incrementalism. We saw recently how the current Board expanded … Continue Reading
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