Labor Relations Update

Tag Archives: unfair labor practice

Johnnie’s on the Spot; Board Reaffirms Standards for Employer Interrogations of Employees in Preparation for NLRB Proceedings

By Joshua Fox, Steven Porzio and Alexander J. Blutman on Posted in Investigations, NLRA, NLRB, Section 7, Unfair Labor Practices, Witness statements, Workplace Investigations
On the eve of the last day of Member Ring’s term, and in the third in a string of significant rulings by the National Labor Relations Board (“NLRB” or “Board”) (which we reported on here and here)—with potentially more to come—the Board, in Sunbelt Rentals, Inc., 372 NLRB No. 24 (2022), affirmed the standards applicable … Continue Reading

A Direct Hit: NLRB Expands Make-Whole Remedies to Cover All “Direct or Foreseeable” Financial Harm

By Michael Lebowich, Joshua Fox and Hannah Morris on Posted in NLRA, NLRB, Section 7, Section 8(a)(1), Section 8(a)(5), Unfair Labor Practices
In a decision, Thryv, Inc., 372 NLRB No. 22, that was foreshadowed by recent invitations for briefs and prosecutorial conduct by NLRB General Counsel Jennifer Abruzzo (see our prior posts here and here), the National Labor Relations Board (“NLRB” or “Board”) issued a significant ruling on December 13, 2022, that the standard make-whole remedy for … Continue Reading

NLRB Signals Pullback on Consequential Damages Against Unions

By Paul Salvatore, Joshua Fox and Rachel Kessler on Posted in NLRB
As we previously reported, the National Labor Relations Board (“NLRB” or “Board”) has indicated that it is committed to considering consequential damages as a possible make-whole remedy applicable to damages both caused by an employer’s unfair labor practice (“ULP”) and against a union for damages caused to an employer. A recent settlement agreement involving the … Continue Reading

NLRB Alters Timing Requirements for Electronic Notice Posting in Workplaces Impacted by COVID-19

By Joshua Fox and Dylan K. Tedford on Posted in NLRB
In a decision issued on June 2, the National Labor Relations Board modified the timing of its electronic notice-posting requirement in circumstances where an employer has not yet reopened its facility due to COVID-19, or where a substantial complement of employees has not yet returned to work on-site when the employer “may be communicating with … Continue Reading

NLRB Plans to Revise Joint Employer Standard Once Again

By Mark Theodore, Joshua Fox and Timothy Kelly on Posted in Uncategorized
On Friday, December 10, 2021, the Board announced in its regulatory agenda that it plans to engage in rulemaking on the standard for determining whether two employers are “joint employers” under the NLRA.  It remains to be seen exactly what the contours of the new joint-employer rule would be, although it has been widely predicted … Continue Reading

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 GC Issues Guidance Memo Laying Out Changes to Evidence Collection in Unfair Labor Practice Investigations

By Steven Porzio, Joshua Fox and Dominique Kilmartin on Posted in Investigations, Investigations, NLRA, NLRB, Section 7
NLRB General Counsel Peter Robb issued a Memorandum on June 17th setting forth new guidelines for how Regions conduct unfair labor practice investigations—specifically, how Regions secure the testimony of former supervisors and agents, as well as how to handle audio recordings.  The stated goal of the Memo is to “promote transparency and apply fairness” during … Continue Reading

BREAKING: NLRB to Resume Unfair Labor Practice Trials June 1, 2020

By Mark Theodore, Joshua Fox and Alex Downie on Posted in COVID-19, NLRA, NLRB
As many states throughout the country have begun implementing phased reopening plans, so too has the NLRB begun to return to a semblance of normality. Representation elections resumed in early April, and the NLRB recently provided clarification as to how representation hearings should be conducted. In the last few weeks the agency has counted ballots … Continue Reading

NLRB: Changes in Workplace Policies Not Applicable to Union Employees do not Constitute a Unilateral Action by the Employer

By Mark Theodore and Elizabeth Dailey on Posted in COVID-19, NLRB
As the NLRB continues to navigate the uncertainty in the work landscape during the ongoing COVID-19 pandemic, it seems to have stayed largely on course, regularly issuing decisions touching on a number of important topics under the Act. One such important topic that the Board has devoted recent attention to has been the issue of … Continue Reading

NLRB Continues to Aid Workers in Ousting Unions

By Mark Theodore and Annabel Pollioni on Posted in Collective Bargaining, Decertification elections, NLRA, NLRB, Section 7, Unfair Labor Practices
The NLRB recently reiterated its position that the agency should not be so quick to dismiss petitions filed by employees seeking to decertify a union. The Board, in a 3-1 decision, held that if a petition for decertification is properly filed prior to the employer entering into an agreement settling unfair labor practice charges in … Continue Reading

Independence Day Comes Early For Employees Seeking To Shed Union Representation

By Mark Theodore and Joshua Fox on Posted in Bargaining units, NLRA, NLRB, Section 8(a)(5), Unfair Labor Practices
On the eve of Independence Day, the NLRB, in a 3-1 decision (Member McFerran dissented), clarified the law concerning withdrawal and enunciated a new framework for determining whether a union has retained majority support at the conclusion of a contract term. In Johnson Controls, Inc., 368 NLRB No. 20 (2019), the Board significantly streamlined the … Continue Reading

Using a Cat to Chase the Inflatable Rat: NLRB General Counsel Urged Reconsideration of Board Precedent Regarding Banners and Signal Picketing of Neutral Employers

By Michael Lebowich and Joshua Fox on Posted in Advice, NLRA, NLRB, Section 8(b)(1)(A)
Continuing its efforts to overturn precedent, the NLRB General Counsel’s Division of Advice has issued a new advice memorandum looking to strike at the most recognizable sign of unionism in urban areas today – – the inflatable rat that is used to signal a labor dispute to the public. It has been long held by the Supreme … Continue Reading

NLRB: Employer’s Reasons For Policy Changes Kept Union’s Information Request Alive Even After Proposals Withdrawn

By Mark Theodore on Posted in Collective Bargaining, Duty to furnish information, Duty to provide information, Employer policies, NLRA, NLRB, Section 8(a)(5), Uncategorized, Unfair Labor Practices
Information requests in the realm of labor relations are simple in theory but can be complicated in practice.  We have seen how the topics of information sought by a union can cause skirmishes, sometimes deliberately so.  We also have seen that it almost never is a good idea for a party to just deny a request for relevant information … Continue Reading

You’ve Got Mail: NLRB Requests Briefing on Standard for Employee Use of Employer Owned Electronic Communication Systems

By Michael Lebowich and Jordan Simon on Posted in Confidentiality, Email, Employer policies, NLRA, NLRB, Section 7, Social Media
In what could signify the beginning of the end for Purple Communications, Inc., 361 NLRB 1050 (2014) and guaranteed employee access to Employer computer systems for union organizing purposes, the NLRB issued a notice on August 1 inviting the filing of briefs on whether the Board should uphold, modify or overrule the decision.  Under Purple … Continue Reading

A Return to Clarity: Traditional Joint Employer Test Reinstated

By Joshua Fox on Posted in Joint Employer, NLRA, NLRB
As we noted last week, one of the more controversial Obama-Board rulings expanding joint employer liability was overruled this past week.  In a widely-predicted 3-2 decision (Miscimarra, Kaplan, Emanuel), the NLRB, in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), reinstated the traditional standard that had been followed for more than 30 years. Under … Continue Reading

Employer’s Interview Of Employees During Defense Of Unfair Labor Practice Violates Act, NLRB Rules

By Mark Theodore on Posted in General Counsel, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices
We already know that when it comes to the NLRB there already are several actions an employer can take that violate the NLRA, even though such actions would be perfectly acceptable under any other employment law.  And sometimes the actions are deemed unlawful even when they are not directly related to the NLRA.  Thus, we’ve … Continue Reading

Post-Labor Day Evaluation Shows….Very Little Activity At NLRB

By Mark Theodore on Posted in Handbook, NLRA, NLRB, Section 8(a)(1), Unfair Labor Practices
What a difference a year makes.  Last year, we saw a blizzard of change coming from the NLRB.  One could forecast what was going to happen due to the proactive nature of the agency’s public expression of its intentions, as well as its solicitation of viewpoints.  It seemed every month brought some new, big change … Continue Reading

Boilerplate Language In NLRB Settlement Agreement Leads To Default Judgment

By Mark Theodore on Posted in General Counsel, NLRB, Unfair Labor Practices
During the last several months, the NLRB has made no secret that it wants to make changes to precedent and policy.  We have seen public pronouncements about ambush elections, employee rights posters, micro bargaining units, and other issues.  Just because the NLRB doesn’t highlight a policy change doesn’t mean the change cannot have widespread consequences. … Continue Reading

Independence Day Incrementalism: NLRB (Again) Expands On Precedent By Ruling Employer Off-Duty Access Rule Unlawful

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

Court Strikes Down Portions Of NLRB Notice Posting Rules

By Mark Theodore on Posted in Employer policies, NLRA, NLRB, Protected activity, Representation Elections, Rights Poster, Rulemaking, Section 7, Section 8(a)(1), Unfair Labor Practices
A federal judge in the District of Columbia handed employers a significant partial victory in the ongoing skirmish over the NLRB’s attempts to require all employers under its jurisdiction to post a notice of employee rights.  As we have noted previously, the NLRB postponed the original November 14, 2011 compliance date, only to postpone it … Continue Reading
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