Labor Relations Update

Tag Archives: Section 8(a)(1)

Google’s Union Campaign Strategy Documents Not Privileged, NLRB Administrative Law Judge

By Mark Theodore, Joshua Fox and Dixie Morrison on Posted in Uncategorized
Google recently suffered a blow in its ongoing National Labor Relations Board litigation, when an Administrative Law Judge appointed to rule on a discovery dispute ordered the Silicon Valley company to turn over the lion’s share of certain documents subpoenaed by former Google employees. Discovery issues have become more prevalent in NLRB litigation as massive … 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 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

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 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 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 Division of Advice Releases Deluge of Advice Memoranda Discussing COVID-Related ULP Charges, Confidentiality Rules, Information Requests, and Other Topics

By Mark Theodore, Joshua Fox, Rachel Therese Gulotta, Elizabeth Dailey and Caroline Guensberg on Posted in Uncategorized
On July 15, 2020, the National Labor Relations Board’s (“NLRB”) Division of Advice published 16 Advice Memoranda addressing myriad questions posed by various Regional Offices. While a majority of the Memoranda were drafted within the past month, a few were originally issued months or years ago. Advice is the agency’s internal think tank and the … 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: 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 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

NLRB Upholds Employer’s Bargaining And Demotions Post-Impasse As Lawful

By Mark Theodore and Rachel Therese Gulotta on Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(5)
In its January 31, 2020 decision in Phillips 66, 369 NLRB No. 13 (January 31, 2020) the Board reversed a number of findings of unfair labor practices found by an Administrative Law Judge related to the employer’s conduct during organizing and subsequent bargaining. Background In November 2011, the union filed a petition to represent the … Continue Reading

NLRB Gives End of Year Gift for Employers, Restores Longstanding Standard for Deferring to Arbitral Decisions

By Joshua Fox, Mark Theodore and Heylee Bernstein on Posted in Arbitration, Deferral, NLRA, NLRB, Section 8(a)(1), Section 8(a)(3), Unfair Labor Practices
In yet another end-of-2019 decision overruling significant NLRA precedent, the Board reverted to the less stringent Spielberg / Olin standard for determining whether to defer to arbitration decisions in the context of Section 8(a)(1) and (3) unfair labor practice cases.  See United Parcel Service, Inc., 369 NLRB 1 (2019). The Board issued this decision unanimously, … Continue Reading

Unpaid Interns are Not Statutory Employees, NLRB Concludes

By Mark Theodore, Joshua Fox and Samantha Shear on Posted in NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1)
The National Labor Relations Board recently held that a group of employees who were advocating on behalf of unpaid interns were not engaged in protected activity because the interns were not “employees” as that term is defined in Section 2(3) of the National Labor Relations Act.  In so doing, the Board reaffirmed its longstanding precedent … Continue Reading

Employer’s Discipline of Employees Engaging In “Intermittent Strikes” Lawful: NLRB Majority

By Mark Theodore, Joshua Fox and Jacob L. Hirsch on Posted in NLRA, NLRB, Section 7, Section 8(a)(1), Strikes
This summer has been punctuated by walkouts.  We have seen walkouts in support of a $15 minimum wage and walkouts to protest the sale of goods to the government. Walking off the job is, of course, a staple of labor action, and generally speaking, employees are protected by the NLRA when the walkout is over … Continue Reading

Employers No Longer Have To Allow Union Representatives Use of Public Areas, NLRB Majority Rules

By Mark Theodore on Posted in NLRA, NLRB, Section 8(a)(1), Solicitation, Uncategorized
Citing judicial criticism, as well as the original Supreme Court decisions on the issue, the NLRB swept away years of precedent permitting union representatives to access public areas of an employer’s premises. In UPMC Presbyterian Shadyside, 368 NLRB No. 2 (June 14, 2019), the NLRB was confronted with the findings that an employer committed unfair … Continue Reading

Employer’s Campaign Prediction That Employees Would Have To Join Union And Pay Dues As Condition Of Employment Not Coercive, NLRB Majority Rules

By Mark Theodore on Posted in Collective Bargaining, NLRA, NLRB, NLRB Election Rules, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices
The NLRB currently is churning out cases and Advice Memoranda at a fairly regular pace.  We recently discussed NLRB decisions addressing information requests, handbook statements, and confidential informants. An interesting area of NLRB case law concerns campaign statements,–statements made by employer representatives during an organizing campaign.  When there is an allegation of wrongdoing, the Board evaluates such employer … Continue Reading

NLRB Rules Employer’s Handbook Statement That Benefit Available To “Non-Union Employees” Violates Act

By Mark Theodore on Posted in Employer policies, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized
During the last decade, a number of NLRB decisions faulted employers for written policies that were considered to be overbroad in violation of the National Labor Relations Act.  These rulings sprang largely from the NLRB’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), where the Board set forth a standard for evaluating the lawfulness of employer policies that … Continue Reading

Unanimous NLRB: Context Matters – Asking Employee Whether He Saw Union Organizer Not Unlawful Interrogation

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Section 8(a)(1), Uncategorized
How the NLRB treats employer statements made to employees in the context of union organizing or other protected activity has been a frequent topic of discussion.  While the actual case law analyzing the coerciveness of an employer statement has not changed, the lawfulness of the statement often depends on the make-up of the Board at the … Continue Reading

Employer’s Litigation Hold Not Unlawful, NLRB Division of Advice Concludes

By Mark Theodore on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized
Last year about this time, the NLRB changed the standard for reviewing handbook rules.  The new standard takes into consideration the fact  there are many other interests other than the NLRA at play in a workplace, and seems to have quieted the frenzied scrutiny of employer policies. Over the years, the heightened scrutiny of employer policies has resulted in … Continue Reading

NLRB Finds Employer Effectively Repudiated Unlawful Handbook Rule…and RecusalGate Continues

By Mark Theodore on Posted in Employer policies, Handbook, NLRA, NLRB, Section 7, Section 8(a)(1), Solicitation, Uncategorized, Unfair Labor Practices
The Board issued an interesting decision discussing an employer’s successful efforts to repudiate unlawful conduct, which we’ll get to in a minute.  In our last post, we discussed a simmering dispute over the circumstances which an NLRB member must recuse himself or herself.  This issue, we’ll call it Recusalgate,  has taken an interesting turn.  In ADI … Continue Reading

NLRB Majority Decides 50-50 Balls In Employer Favor

By Mark Theodore on Posted in NLRA, NLRB, Section 8(a)(1), Section 8(a)(5), Uncategorized, Unfair Labor Practices
The NLRB  has been in a period of dormancy.  When the make-up of the Board changed, a lot of people expected an onslaught of NLRB decisions reversing the reversals of precedent made by the agency in the last 8 years.  Except for a couple of brief periods, most notably in December when then-Chairman Miscimarra departed, … Continue Reading
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