Joshua Fox on Administrative Law Judge (ALJ)

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

NLRB: Members Of Trade Group Are Not “Employees” Covered By The NLRA

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...more

9/24/2020 / Administrative Law Judge (ALJ) , Employee Definition , Employer Liability Issues , Employment Policies , NLRA , NLRB , Section 7 , Trade Associations , Unfair Labor Practices , Unions

NLRB Restores Precedent, Gives Employers Freedom to Unilaterally Discipline Union Employees Between Certification and First...

The National Labor Relations Board continues to overrule Obama-Board precedent at a rapid pace. On June 23, 2020, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the Board...more

6/25/2020 / Administrative Law Judge (ALJ) , Collective Bargaining Agreements (CBA) , Discipline , Duty to Bargain , Employer Liability Issues , Employment Policies , Labor Relations , NLRA , NLRB , Unfair Labor Practices , Unions

NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements

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...more

6/23/2020 / Administrative Law Judge (ALJ) , Arbitration , Arbitration Agreements , Boeing , Confidentiality Agreements , Employment Contract , Employment Policies , Epic Systems Corp v Lewis , Federal Arbitration Act , NLRA , NLRB , Section 7 , Workplace Investigations

Union’s Efforts to Scare Employees From Participating in Employer Investigations Rebuked by the Board

On June 5, 2020, the NLRB held, in Teamsters Local Union No. 735-S (Bemis Co., Inc.), 369 NLRB No. 97, that union officials’ retaliatory actions against members who participated in an investigation resulting in the discharge...more

6/10/2020 / Administrative Law Judge (ALJ) , Bargaining Units , Burden-Shifting , Bylaws , Corporate Counsel , Disciplinary Proceedings , Employment Litigation , Labor Relations , NLRA , NLRB , Protected Activity , Section 7 , Unions

NLRB: Policy Prohibiting Personal Cell Phones in Work Areas Due to Safety Concerns May Be Lawful under Boeing

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....more

6/1/2020 / Administrative Law Judge (ALJ) , Boeing , Coronavirus/COVID-19 , Employee Handbooks , Employer Liability Issues , Employment Policies , Infectious Diseases , NLRA , NLRB , Protected Concerted Activity , Section 7

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

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...more

5/19/2020 / Administrative Law Judge (ALJ) , Coronavirus/COVID-19 , Infectious Diseases , NLRB , Trial Preparation , Unfair Labor Practices , Videoconference

NLRB: Unions Also Obligated To Provide Timely Relevant and Necessary Information Requested by Employers

We have often reported about how an employer’s failure to adequately respond to an information request made by a union can lead to unfair labor practice charges and litigation. Sometimes a union makes an information request...more

5/8/2020 / Administrative Law Judge (ALJ) , Grievance Process , NLRA , NLRB , Request For Information , Unfair Labor Practices , Union Representatives , Unions

NLRB Reaffirms Limitations on Employers’ Ability to Solicit Employee Assistance in Anti-Union Campaigning and Confidentiality...

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...more

4/15/2020 / Administrative Law Judge (ALJ) , Confidentiality Policies , Corporate Counsel , Employer Liability Issues , NLRA , NLRB , Section 7

Employer’s Poll of Workforce Not Unlawful Mass Interrogation, NLRB Rules

When it comes to an unfair practice allegation asserting an employer’s statement is unlawful, words matter. And, so does context. Under NLRB case law, the actual employer statements are evaluated as well as the overall...more

3/6/2020 / Administrative Law Judge (ALJ) , Corporate Counsel , Employee Rights , Employee Training , Interrogations , NLRA , NLRB , Protected Concerted Activity , Section 7 , Temporary Employees , Unfair Labor Practices

Applying the Boeing Standard, NLRB Upholds Employer’s Policies Restricting Cell Phone Use, Non-Work Email Use and Disclosure of...

Applying the facially neutral work rule test laid out in Boeing, the Board recently reversed an Administrative Law Judge decision, concluding that the employer maintained lawful workplace rules restricting employee use of (i)...more

2/24/2020 / Administrative Law Judge (ALJ) , Boeing , Confidentiality Agreements , Corporate Counsel , Employee Handbooks , Employee Rights , Employer Liability Issues , Employment Policies , NLRB , Protected Concerted Activity , Purple Communications , Section 7 , Workplace Safety

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

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...more

1/13/2020 / Administrative Law Judge (ALJ) , Employee Rights , Equal Employment Opportunity Commission (EEOC) , Hiring & Firing , NLRA , NLRB , Reinstatement , Section 7 , Settlement Agreements , Termination , Unfair Labor Practices , Unions

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

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...more

Board Affirms Right to Unilaterally Implement Changes to Benefit Plans Based on Waiver, Foreshadowing Potentially Looser Standard...

The NLRB continues to churn out decisions post-Labor Day. On September 4, in a 2-1 decision, (Chairman Ring and Member Kaplan, with Member McFerran dissenting), the NLRB found that E.I. DuPont De Nemours did not violate the...more

9/11/2019 / Administrative Law Judge (ALJ) , Bargaining Units , Collective Bargaining Agreements (CBA) , DuPont , HRA , Incorporated by Reference , NLRA , NLRB , Reservation of Rights , Unions

National Labor Relations Board: Labor Day Roundup

While much of the country spent the last week of summer enjoying the last few days of sun, the National Labor Relations Board spent the week before its eponymous three-day weekend churning out a couple of important decisions....more

9/4/2019 / Administrative Law Judge (ALJ) , Employer Liability Issues , Hiring & Firing , Independent Contractors , Misclassification , NLRA , NLRB , Section 7

NLRB Issues “Epic” Decision Concerning the Intersection of Mandatory Arbitration Agreements and NLRA Section 7 Rights

On August 14, 2019, the NLRB issued its first decision addressing employer conduct related to mandatory arbitration agreements and Section 7 activity since the Supreme Court decided Epic Systems Corp v. Lewis, 584 U.S. __,...more

8/16/2019 / Administrative Law Judge (ALJ) , Arbitration Agreements , Collective Actions , Corporate Counsel , Employment Contract , Epic Systems Corp v Lewis , Fair Labor Standards Act (FLSA) , Federal Arbitration Act , Mandatory Arbitration Clauses , NLRA , NLRB , Protected Concerted Activity , SCOTUS , Section 7 , Wage and Hour

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

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...more

7/31/2019 / Administrative Law Judge (ALJ) , Corporate Counsel , Employee Rights , Employment Policies , NLRA , NLRB , Protected Activity , Strike , Unions , Wage and Hour , Wal-Mart

Joshua Fox

Proskauer Rose LLP

Popular Topics by This Author

Latest Posts › Administrative Law Judge (ALJ)