Labor Relations Update

Tag Archives: Section 8(a)(3)

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: Outsized Payment to Union Supporter to Waive Reinstatement in Board Settlement Not Unlawful Bribe

By Mark Theodore, Joshua Fox and Scott Tan on Posted in NLRA, NLRB, Section 8(a)(3)
Shamrock Foods Company, 369 N.L.R.B. No. 5 (January 7, 2020) is the latest in the National Labor Relations Board’s series of employer-friendly decisions.  In Shamrock Foods, the Board held that an employer did not violate Sections 8(a)(3) and (1) of the National Labor Relations Act by offering and entering into a settlement agreement with an … 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

NLRB Finds Employer Lawfully Terminated “Known” Union Supporter Despite Finding Its Justification Was Pretextual

By Steven Porzio and Laura Franks on Posted in General Counsel, NLRA, NLRB, Section 8(a)(3), Unfair Labor Practices
In a 2-1 decision issued on August 2, 2019, the National Labor Relations Board (the “Board”) in Electrolux Home Products, Inc., 368 NLRB No. 34 (2019) reversed an Administrative Law Judge’s (“ALJ”) decision, and held that Electrolux’s discharge of a “known” union supporter employee did not violate the National Labor Relations Act (“NLRA” or “Act”), … Continue Reading

Employer’s Grant of Extra Holiday to All Employees Except Those Represented by Union Not Unlawful, NLRB Rules

By Mark Theodore on Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Uncategorized
Employers with union-represented employees also always have non-union employees, whether working in the office or at another worksite.  Invariably, there are differences between the wages, benefits, and terms and conditions of employment of the two groups, a natural consequence of the bargaining process.  A common situation arises when an employer makes changes in the workplace, whether it is … Continue Reading

Impulse Control? NLRB Finds Employee’s Misconduct To Be Deliberate and “Predetermined” and Not Protected

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized, Unfair Labor Practices
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

The Devil Is In the Details: New Board Members Likely To Change Law In Nuanced Ways

By Mark Theodore on Posted in Duty to furnish information, Duty to provide information, Employer policies, General Counsel, Investigations, NLRA, NLRB, Protected activity, Section 8(a)(1), Specialty Healthcare, Uncategorized, Unfair Labor Practices, Witness statements
The end of September in most years sees a spate of new NLRB decisions, sometimes dozens, issued on or about September 30, to coincide with the end of the agency’s fiscal year.  Not so this past September 30 because of the recent changeover from a majority of Democrat Board Members to a majority of Republican … Continue Reading

Attack Falsely Alleging Sandwich Maker Engaged In Unhealthy Practices Not Protected Activity Concludes Appeals Court, Overruling NLRB

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Non-Union employers, Protected activity, Section 8(a)(1), Uncategorized
Labor disputes are passionate affairs.  Workplace grievances elicit all sorts of strident behavior. When the dispute involves a group of employees, the effect can become magnified.  The exact point at which the stridency of an employee’s behavior becomes unprotected is not always apparent, and like so much else in labor relations, the line changes with the Board’s … Continue Reading

NLRB Discards 50 Years Of Precedent – Dues Checkoff Clauses Now Survive Expiration Of Bargaining Agreement

By Mark Theodore on Posted in Collective Bargaining, General Counsel, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor Practices
Claiming that the Board “has never provided a coherent explanation” for the 50 year old rule that the obligation to continue deducting dues pursuant to a dues checkoff provision ceases upon expiration of the collective bargaining agreement, the NLRB recently announced it has overruled existing precedent.  Dues checkoff provisions now survive the expiration of an agreement … Continue Reading

Court of Appeals Rules Employee Efforts To Take Over Editorial Control At Newspaper Unprotected By NLRA

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices
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
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