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
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
Late summer brings picnics, hiking, and general fun. It also brings a slew of NLRB decisions as the agency’s fiscal year comes to an end on September 30. One of the more highly-anticipated decisions concerns the lawfulness of...more
Late summer brings picnics, hiking, and general fun. It also brings a slew of NLRB decisions as the agency’s fiscal year comes to an end on September 30. One of the more highly-anticipated decisions concerns the lawfulness of...more
As foreshadowed by the NLRB General Counsel’s August 2021 Advice Memorandum, the vacillating standard for the legality of employer handbooks and policies and confidentiality requirements during open employer-investigations...more
3/11/2022
/ Boeing ,
Confidentiality Agreements ,
Corporate Counsel ,
Employee Handbooks ,
Employee Rights ,
Employer Liability Issues ,
Employment Policies ,
Labor Reform ,
NLRA ,
NLRB ,
NLRB General Counsel ,
Section 7
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...more
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
Over the past few years, the National Labor Relations Board has frequently weighed in on employer’s workplace and employee handbook policies, examining whether an employer’s policy impacts employees’ rights under Section 7 of...more
President Biden nominated Jennifer Abruzzo, Special Counsel for Strategic Initiatives for the Communications Workers of America, to be General Counsel of the National Labor Relations Board. Abruzzo was a Board veteran with...more
When it comes to fellowship—and collective bargaining—it looks like “fellows” aren’t treated the same as their permanent status co-workers. In Phoenix News Times, LLC and The Newsguild–CWA, 370 NLRB No. 84 (Feb. 10, 2021),...more
On February 1, National Labor Relations Board (“NLRB”) Acting General Counsel Peter Sung Ohr rescinded a slew of General Counsel Memos issued by his predecessor, Peter Robb. On February 2, Ohr continued his actions by rolling...more
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
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
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
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
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...more
12/2/2020
/ Boeing ,
Civility ,
Employee Handbooks ,
Employer Liability Issues ,
Employment Policies ,
Government Investigations ,
NLRA ,
NLRB ,
Protected Activity ,
Reasonableness Factors ,
Section 7
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...more
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
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...more
7/23/2020
/ Anti-Discrimination Policies ,
Civil Rights Act ,
Employer Liability Issues ,
Employment Policies ,
NLRA ,
NLRB ,
NLRB General Counsel ,
Preponderance of the Evidence ,
Profanity ,
Protected Concerted Activity ,
Retroactive Application ,
Section 7 ,
Title VII ,
Totality of Circumstances Test
After a brief delay where the NLRB suspended all representation elections from March 19 through April 6, 2020, NLRB Regional Directors have since largely required elections to be held via mail ballot to curb the spread of...more
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
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
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
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
The Board continues churning out precedent-setting decisions as year-end approaches. Two days before the Christmas holiday, in Wal-Mart Stores, Inc., 368 NLRB No. 146 (Dec. 16, 2019), the NLRB applied its new view on handbook...more