Joshua Fox on Administrative Law Judge (ALJ)

When Protesting Is Not Protected: NLRB Finds Employees’ Off-Duty Participation in Black Lives Matter Protests Not Protected...

On August 21, 2024, the NLRB affirmed an administrative law judge (“ALJ”) decision and held in SFR, Inc. d/b/a Parkside Café, 373 N.L.R.B. No. 84, that employees who participated in Black Lives Matter (“BLM”) protests outside...more

9/4/2024 / Administrative Law Judge (ALJ) , Black Lives Matter , Hiring & Firing , NLRA , NLRB , Off-Duty Employees , Popular , Protests , Unfair Labor Practices

Not Anymore! NLRB Board Blocks Use of Unilateral Consent Orders

On August 22, 2024, the National Labor Relations Board (the ““Board”“) issued a decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio San Pedras, 373 NLRB No. 89 (2024), marking a significant departure from its...more

9/3/2024 / Administrative Law Judge (ALJ) , Consent Order , NLRA , NLRB , Public Policy , Unfair Labor Practices

Not So Fast: D.C. Circuit Resists Invitation to Reject NLRB Deference

On July 5, 2024, in Hospital de la Concepcion v. NLRB, the D.C. Circuit was the first federal appeals court to weigh in on deference afforded to the National Labor Relations Board (“NLRB”) in the wake of the landmark U.S....more

7/10/2024 / Administrative Law Judge (ALJ) , Administrative Procedure Act , Chevron Deference , Corporate Counsel , Loper Bright Enterprises v Raimondo , NLRA , NLRB , Regulatory Authority , SCOTUS , Unions

Two Blockbuster U.S. Supreme Court Decisions May Spell End of NLRB’s Expansion of Reach of NLRA as Well as How Agency Prosecutes...

The U.S. Supreme Court issued two blockbuster decisions last week, both of which likely will curtail the ability of federal agencies, including the NLRB, to prosecute cases and expand the law. In a 6-3 decision announced...more

7/2/2024 / Administrative Law Judge (ALJ) , Administrative Procedure Act , Chevron Deference , Chevron v NRDC , Civil Monetary Penalty , Constitutional Challenges , Enforcement Actions , Government Agencies , Jury Trial , NLRB , SCOTUS , SEC v Jarkesy , Securities and Exchange Commission (SEC) , Securities Fraud , Securities Regulation , Separation of Powers , Seventh Amendment

Compete All You Want: ALJ Strikes Down Non-Compete Agreement, Setting Up NLRB Review

As we’ve discussed previously (see here and here), next up on the NLRB chopping block is whether non-compete agreements create a “chilling effect” on employees in the exercise of their Section 7 rights of the National Labor...more

6/25/2024 / Administrative Law Judge (ALJ) , Federal Trade Commission (FTC) , NLRA , NLRB , Non-Compete Agreements , Non-Solicitation Agreements , Pre-Employment Agreements , Restrictive Covenants , Retaliation

Launching into New Territory (Continued): SpaceX Wins Temporary Relief at Fifth Circuit

On May 2, 2024, the U.S. Court of Appeals for the Fifth Circuit, in Space Exploration Technologies Corp., v. NLRB, No. 24-40315 (5th Cir. 2024), granted SpaceX’s Emergency Motion for Injunction Pending Appeal, essentially...more

5/7/2024 / Administrative Law Judge (ALJ) , Appeals , En Banc Review , NLRB , Preliminary Injunctions , SCOTUS , SEC v Jarkesy , Securities and Exchange Commission (SEC) , SpaceX

Appellate Court Rejects NLRB’s Findings in Employer Surveillance Case as “Nonsense”

Declaring the NLRB’s rationale to be “nonsense,” on March 26, 2024, a unanimous three-judge panel for the United States Court of Appeals for the District of Columbia in Stern Produce Company Inc v. NLRB, refused to enforce...more

4/1/2024 / Administrative Law Judge (ALJ) , Appellate Courts , Corporate Counsel , EEO , Employee Handbooks , Employment Policies , NLRA , NLRB , NLRB General Counsel , Surveillance , Unfair Labor Practices

It’s Protected: NLRB Finds “Black Lives Matter” Insignia on Employee Uniform Constitutes Protected Activity Under Circumstances

The National Labor Relations Board (“NLRB”), in a 3-1 decision, held that an employee’s display on their work uniform of “BLM,” an acronym for Black Lives Matter, constituted protected concerted activity under Section 7 of...more

2/23/2024 / Administrative Law Judge (ALJ) , Black Lives Matter , Corporate Counsel , Employees , Employer Liability Issues , Employment Litigation , Employment Policies , NLRA , NLRB , Protected Activity , Race Relations , Section 7 , Uniforms

Launching into New Territory: SpaceX Claims NLRB Unconstitutionally Structured

Shortly after the New Year, on January 4, 2024, Space Exploration Technologies Corp.—or “SpaceX”—filed a complaint in the District Court for the Southern District of Texas alleging that an administrative complaint filed by...more

1/9/2024 / Administrative Law Judge (ALJ) , Corporate Counsel , NLRA , NLRB , Securities and Exchange Commission (SEC) , SpaceX , Unconstitutional Condition , Unfair Labor Practices

That Was Fast: Judge Orders Cannabis Company to Recognize and Bargain with Union Under “Cemex”

As we recently discussed, the National Labor Relation Board’s (“NLRB”) monumental ruling in Cemex Construction Materials Pacific, LLC, 327 NLRB No. 130 (2023), is going to have a significant impact on the manner in which...more

9/28/2023 / Administrative Law Judge (ALJ) , Cannabis-Related Businesses (CRBs) , Cemex , Corporate Counsel , Disciplinary Proceedings , NLRB , Retroactive Application , Secret Ballot , Termination , Unfair Labor Practices , Union Organizers , Unions

Another One: The NLRB Revives Standard That Employees Are Protected When Advocating for Nonemployees

A slew of decisions that were pending before the National Labor Relations Board (“NLRB” or the “Board”) have been issued at the end of August, coming at the close of Member Wilcox’s term. In American Federation for Children,...more

9/5/2023 / Administrative Law Judge (ALJ) , Independent Contractors , NLRA , NLRB , Section 7

Not A Clean Break: Cautionary Tale for Employers Looking To Close Plants

In a very active end of summer for labor law, the National Labor Relations Board (“Board”) ruled in a 2-1 decision, in Quickway Transportation, Inc., 372 NLRB No. 127, that a company’s closure of a terminal where its drivers...more

9/1/2023 / Administrative Law Judge (ALJ) , Anti-Union Actions , Business Closures , Corporate Counsel , Employees , Hiring & Firing , NLRA , NLRB , Section 8(a) , Unions

NLRB Clarifies Burden Shifting Framework in Mixed-Motive Cases

On August 28, 2023, the National Labor Relations Board (“NLRB” or the “Board”) issued its decision in Intertape Polymer Corp., 372 NLRB No. 133 (2023) clarifying the standard by which the General Counsel satisfies her initial...more

9/1/2023 / Administrative Law Judge (ALJ) , Adverse Employment Action , Employment Discrimination , NLRA , NLRB , NLRB General Counsel , Unions , Wright Line Test

Total Security Recall: Recent Decision May Lead to Reinstatement of Bargaining Requirement for Discipline Pre-CBA

A recent Administrative Law Judge ruling in Starbucks Corp.sets up a possibility for the National Labor Relations Board to reinstate an employer’s obligation to bargain with a union before imposing serious discretionary...more

8/3/2023 / Administrative Law Judge (ALJ) , NLRB , Starbucks , Unions

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

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...more

12/6/2021 / Administrative Law Judge (ALJ) , Attorney-Client Privilege , Discovery , Discovery Disputes , Employer Liability Issues , Employment Litigation , Evidence , Google , Labor Relations , NLRA , NLRB , Retaliation , Subpoenas , Unions , Work-Product Doctrine

NLRB: Employer’s “Hard-Bargaining” Proposals—By Themselves—Did Not Violate Duty to Bargain in Good Faith

In Universal Health Services, Inc., 370 N.L.R.B. No. 118 (April 30, 2021), the Board dismissed a complaint alleging that an employer’s bargaining proposals seeking significant concessions violated the duty to bargain in good...more

5/10/2021 / Administrative Law Judge (ALJ) , Collective Bargaining , Collective Bargaining Agreements (CBA) , Discipline , Duty to Bargain , Employer Liability Issues , Employment Policies , Labor Relations , NLRA , NLRB , Unfair Labor Practices , Unions

Tesla and Musk Get a Shock from the NLRB – Tesla CEO Ordered to Delete Union Tweet and Eliminate Overly Broad Confidentiality...

In its March 25 decision, the NLRB unanimously held that: (1) Tesla violated the National Labor Relations Act (“NLRA”) after prohibiting employees from talking to the media; (2) Tesla did not violate the Act by calling...more

4/2/2021 / Administrative Law Judge (ALJ) , Collective Bargaining , Confidentiality Agreements , Elon Musk , Employee Rights , Employer Liability Issues , NLRA , NLRB , Section 7 , Tesla , Twitter , Unions

NLRB: Initial Burden of Union Animus Met Largely by Timing of Employer’s Discharge of Employee

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...more

2/25/2021 / Administrative Law Judge (ALJ) , Burden-Shifting , Employer Liability Issues , NLRA , NLRB , NLRB General Counsel , Unfair Labor Practices , Unions

NLRB Finds Social Media Policies Lawful, Sheds Light on Impact of Boeing

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...more

1/15/2021 / Administrative Law Judge (ALJ) , Boeing , Employee Handbooks , Employer Liability Issues , Employment Policies , NLRA , NLRB , Section 7 , Social Media , Unions

Employer Leaves Lasting Impression…of Unlawful Surveillance

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...more

1/13/2021 / Administrative Law Judge (ALJ) , Employer Liability Issues , Interrogations , NLRA , NLRB , Protected Concerted Activity , Surveillance , Unfair Labor Practices , Unions

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

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...more

12/28/2020 / Administrative Law Judge (ALJ) , Anti-Harassment Policies , Employment Policies , Federal Labor Laws , Labor Relations , NLRA , NLRB , Protected Concerted Activity , Section 7 , Unfair Labor Practices , Union Leaflets , Union Organizers , Unions

NLRB: An Inference of Union Animus Must Be Grounded in Sufficient Supporting Evidence under Wright Line

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...more

12/16/2020 / Administrative Law Judge (ALJ) , Adverse Employment Action , Charging Party , Collective Bargaining Agreements (CBA) , Employer Liability Issues , Employment Policies , Failure to Investigate , NLRB , NLRB General Counsel , Protected Concerted Activity , Unions , Wright Line Test

NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected...

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...more

12/15/2020 / Administrative Law Judge (ALJ) , Adverse Employment Action , Corporate Counsel , Employer Liability Issues , Employment Litigation , Employment Policies , Hiring & Firing , NLRA , NLRB , Offensive Language , Protected Concerted Activity

NLRB: Employer Tweet Unlawfully Restrained Protected Activity

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....more

11/30/2020 / Administrative Law Judge (ALJ) , Employee Rights , NLRA , NLRB , Protected Concerted Activity , Social Media , Twitter , Unfair Labor Practices , Unions

NLRB Seeks Comment: Rats, Banners and Neutrals, Oh My!

An age old question under the National Labor Relations Act is what constitutes “picketing”? By the Supreme Court’s definition, picketing is inherently coercive and may not be directed against a neutral employer. An issue...more

10/30/2020 / Administrative Law Judge (ALJ) , Coercion , First Amendment , Free Speech , Labor Disputes , Labor Relations , NLRA , NLRB , NLRB General Counsel , Right to Picket , Unions

Joshua Fox

Proskauer Rose LLP

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