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Employer Law Report

Tag Archives: NLRB

NLRB decisions on “mini-unit organizing”

Posted in Labor Relations

We reported in 2011 about the National Labor Relations Board (NLRB) decision in Specialty Healthcare. That controversial decision opened the door for unions to target small sections of a workforce for union organizing.  For example, in the past, a union trying to organize had to target all similarly-situated employees. In a manufacturing plant that was typically all production and maintenance workers and usually included all blue-collar departments, like shipping and receiving. But, the Specialty Healthcare case opened the door for a union to target smaller groups, like the maintenance group alone, or the shipping and receiving group. Being able …


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U.S. Supreme Court rules against the NLRB in recess appointments case

Posted in Labor Relations

On Thursday, June 26, 2014, the United States Supreme Court ruled the three recess appointments President Obama made to the National Labor Relations Board (“NLRB” or “Board”) in January 2012 were invalid and unconstitutional. In NLRB v. Noel Canning, the Supreme Court unanimously ruled that President Obama exceeded his powers when he by-passed Congress and unilaterally appointed three Board members to the NLRB in January 2012. The issue turned on whether Congress was in “recess” at the time the appointments were made – as claimed by the President – or on an intra-session break as claimed by the employer …


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What do Woody Hayes, Knute Rockne and Jimmy Hoffa have in common?

Posted in Labor Relations

If you could ask them if they ever thought college football players should have the right to join unions and bargain with their universities, chances are all three would have had a good laugh. Of course, in their day the revenue stream from college football was not measured in billions of dollars and the concerns of college athletes were not what they are today. Still, it is interesting to consider what these three might make of the recent decision by the National Labor Relations Board (NLRB) Chicago Regional Director that college football players are “employees” with the right to unionize?…


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NLRB General Counsel Announces Priority Matters To Be Submitted For Advice

Posted in Labor Relations

On February 25, 2014, NLRB General Counsel, Richard F. Griffin, Jr., issued the first General Counsel Memo of the year (GC 14-01) identifying cases that the NLRB’s Regional Directors must refer to the NLRB’s Division of Advice for “centralized consideration” and to “enhance our ability to provide a clear and consistent interpretation of the [National Labor Relations] Act.” The list is divided into three groups, two of which should be of particular concern to employers. The first group includes issues that reflect General Counsel initiatives or areas of the law and labor policy that are of “particular concern” …


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The National Labor Relations Board Continues Its Hostility Toward Class Action Waivers in Arbitration Agreements

Posted in Labor Relations

Class action waivers in arbitration agreements, when used correctly, are an extremely effective tool for employers to reduce exposure on employment claims.  So, naturally, the current National Labor Relations Board (NLRB) will not support them.  Having lost before the Fifth Circuit Court of Appeals on their argument that Section 7 and Section 8 of the National Labor Relations Act (NLRA) categorically prohibit explicit class action waivers, the NLRB remains undeterred.  Here is what the NLRB is up to now.

Background

As brief background, Section 7 of the NLRA, 29 U.S.C. § 157, grants most private-sector employees in the United States …


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NLRB Re-Embarks On Quest to Speed Up Union Elections

Posted in Labor Relations

Yesterday, February 5, 2014, the NLRB officially announced the reissuance of its controversial proposed election rule changes that were first proposed in 2011 and promptly dubbed by employer groups as the “quickie election” and “ambush election” rules. In a statement issued by Board Chairman Mark Pearce, the NLRB yesterday stated:  “Unnecessary delay and inefficiencies hurt both employees and employers. These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union.”

According to the NLRB’s press release, the proposed …


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NLRB Posting Rule is Dead

Posted in Labor Relations

The National Labor Relations Board (NLRB) announced yesterday it will make no further efforts to revive a workplace posting rule that it had originally proposed in the fall of 2011. The rule required all union and non-union workplaces to post a detailed notice concerning worker rights, including the right to join unions, and the right to act together for mutual support. The rule was challenged immediately in two federal court lawsuits. The two Federal Courts of Appeal that heard the cases both held that the rule exceeded the NLRB’s proper authority and invalidated the rule.

In its announcement yesterday, the …


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Fifth Circuit Court of Appeals Knocks Down NLRB Decision: And, in Doing So, Supports Employer Effort to Avoid Class Action Claims

Posted in Employment Class & Collective Actions, Labor Relations

One of the most significant risks to business in recent years has been the proliferation of class action employment-related lawsuits. Class action claims have been especially popular with plaintiff’s lawyers pursuing federal Fair Labor Standards Act wage claims. A class action lawsuit can mean huge costs for defense and damages. Some employers have attempted to manage the risk by having employees sign agreements requiring that they pursue employment law claims against the company in arbitration, rather than in court. Sometimes employers include in the arbitration agreement a specific waiver of the right to pursue class action claims in court or …


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Sixth Circuit’s Enforcement of Specialty Healthcare Standard Opens Door Wider For Union Organizing Efforts

Posted in Labor Relations

Last month, the Sixth Circuit in Kindred Nursing Centers East, LLC v. NLRB enforced the National Labor Relations Board’s 2011 Specialty Healthcare II decision in which the Board adopted a controversial test opening the door for unions to organize “micro” bargaining units of employees despite employer evidence that additional employees share a community of interest with those employees and therefore should be added to the unit. In Specialty Healthcare II, the Board held that “in cases in which a party contends that a petitioned-for unit containing employees readily identifiable as a group who share a community of interest is …


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When Employee Taunts Employer via Facebook to “FIRE ME. …Make my day. . .” NLRB Memo Concludes the Employer Can Go For It

Posted in Labor Relations, Social Media, Traps for the Unwary, Workforce Strategies

The National Labor Relations Board Office of the General Counsel released an Advice Memorandum in Tasker Healthcare Group, d/b/a Skinsmart Dermatology ("Tasker") Case 04-CA-094222 on May 16, 2013 and concluded that an employee was not engaged in protected concerted activity when she posted comments to a Facebook group message that taunted her employer to "FIRE ME … Make my day …"

The Charging Party was employed by Tasker, which was a medical office with approximately nineteen employees. The Charging Employee along with a few current and former employees engaged in a private Facebook group message to organize a social …


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NLRB Posting Rule Dealt Another Blow

Posted in Labor Relations

It has been almost a year since there was news to report about the NLRB proposed rule requiring employers to post notices about union organizing rights. As you might recall, the NLRB issued the rule in the fall of 2011 and it caused immediate controversy. Many in the business community considered the posting an unwarranted effort by the NLRB to support union organizing. Many considered the rule to go well beyond the NLRB’s authority under the National Labor Relations Act. Lawsuits were filed in two federal district courts challenging the NLRB’s authority to issue and enforce the rule. The lower …


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NLRB Issues Third Facebook Firing Decision (Employers 1, Employees 2). Would Bettie Page Roll Over In Her Grave?

Posted in Labor Relations

The National Labor Relations Board (NLRB) has issued its third Facebook firing decision. In Design Technology Group LLC dba Bettie Page Clothing (Case No. 20-CA-035511, 359 NLRB No. 96), the Board found that the employer, a clothing store, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by discharging three employees for engaging in what the Board deemed protected concerted activity after the employees posted messages on Facebook complaining about their working conditions. The Board also held the store violated the NLRA by maintaining a “Wage and Salary Disclosure” rule in its handbook prohibiting employees from disclosing information …


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NLRB Issues Advice Memorandum Weighing In On Confidentiality of Employer Investigations

Posted in Labor Relations

Back in August, we alerted you to an NLRB decision in Banner Health System dba Banner Estrella Medical Center and James A. Navarro, Case No. 28-CA-023438, in which the Board held that an employer’s blanket rule requiring employees to maintain the confidentiality of pending internal company investigations violated the employees’ Section 7 right to discuss discipline or disciplinary investigations involving their fellow employees. At the time, we expressed the concern that the NLRB’s position complicates an employer’s ability to protect the integrity of an ongoing investigation. Nevertheless, at the time, we recommended that employers should treat each investigation on …


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NLRB Further Restricts Employer Policies on Employee Communication: NLRB Finds Rules Restricting Employee Communication with Media and Law Enforcement and Communication about Confidential Information Unlawful

Posted in Labor Relations

On the heels of three memoranda from its General Counsel, multiple ALJ decisions, and even one or two decisions of the full Board addressing employer social media and communications policies over the last couple of years, the National Labor Relations Board (NLRB)’s decision last week in DirecTV, which held that DirectTV’s policies restricting certain employee communication were unlawfully overbroad, might be viewed by some as rather predictable. Nevertheless, despite the uncertain validity of recent Board decisions in general in light of the D.C. Circuit’s Noel Canning decision (see our blog post from yesterday for more discussion of the Noel


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Remember When “Recess” Meant Fun and Games? The Impact of Canning v. NLRB, and What Employers Need to Know While We Wait and See if the Decision Will Remain In Tact

Posted in Labor Relations, Workforce Strategies

As the D.C. District Court’s long-awaited decision in Noel Canning v. NLRB, invalidating President Obama’s January 2012 "recess" appointments, likely heads to the United States Supreme Court, here’s what employers need to know in the interim about the impact of that decision.

The Background

As we explained in our post, President Obama’s Move to Sidestep the Senate with Recess Appointments, when the National Labor Relations Board’s ("NLRB") normal five-person membership fell to two in late 2011 when Craig Becker’s (who had also been an Obama recess appointee) appointment expired and the agency, therefore, lost its statutory authority to …


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There’s No “I” In At-Will Disclaimers: NLRB Acting General Counsel Advises on Two At-Will Disclaimers and Gives Employers a Halloween Treat

Posted in Labor Relations

Just when employers were thinking they might have to throw out their at-will disclaimers, the National Labor Relations Board Acting General Counsel released an analysis of two at-will employment clauses (Mimi’s Café, Case Number 28-CA-0844365 and Rocha Transportation, Case No. 32-CA-086799), and in finding both lawful under the National Labor Relations Act ("NLRA"), gave employers a Halloween treat!

The first at-will disclaimer analyzed was contained in Mimi’s Café’s handbook (a company acquired by Bob Evans Farms, Inc. in 2004), that provided:

AT-WILL EMPLOYMENT
The relationship between you and Mimi’s Café is referred to as "employment at will." This means that …


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One Day You’re In, the Next You’re Out: A Policy-by-Policy Analysis of the Fallout for Employer Policies in the Wake of the NLRB’s Decisions in Costco and EchoStar

Posted in Labor Relations, Workforce Strategies

Following closely after the NLRB’s first social media decision in Costco Wholesale Corporation (NLRB Case No. 34-CA-012421) just weeks ago, an ALJ for the Board has issued a mammoth 43 page decision in EchoStar Technologies (NLRB Case No. 27-CA-066726) striking down numerous employer policies that in his opinion unlawfully chilled employees’ rights to engage in protected concerted activity.

This post takes a look at the policies challenged in the EchoStar decision and summarizes where employers stand now.

To understand the NLRB’s recent decision in EchoStar, it is important to first understand where the NLRB is coming from. When reviewing …


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First NLRB Decision on Employer Social Media Policies

Posted in Labor Relations, Traps for the Unwary, Workforce Strategies

Employers adopting social media policies have to consider whether they would be struck down by the National Labor Relations Board (NLRB) if challenged as invalid under Section 7 of the National Labor Relations Act. Section 7 protects the rights of union, as well as non-union, employees to communicate at or away from work about terms and conditions of employment. Citing a desire to provide guidance to employers regarding workplace regulation of employee use of social media, the chief lawyer for the NLRB (its “General Counsel”) issued guidance reports in August 2011, January 2012 and May 2012 to show what …


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Recent NLRB Rulings May Surprise and Concern You

Posted in Labor Relations

In recent months, the National Labor Relations Board (NLRB) has grabbed the attention of many employers, union and non-union alike. NLRB decisions and guidance documents have found that a number of very common company policies and practices violate employee rights under Section 7 of the National Labor Relations Act. Section 7 protects the rights of employees to communicate with co-workers about wages and other working conditions and to act together, including by supporting or joining unions.

In a decision on July 30, 2012, the NLRB continued the trend of finding legal fault with practices that may sound very familiar to …


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NLRB General Counsel Issues Another Social Media Memo

Posted in Labor Relations

On May 30, 2012, the NLRB’s General Counsel’s Office issued its third Memo addressing social media issues. This one is devoted entirely to its position on the lawfulness of various typical social media policy provisions. Hoping that this third General Counsel Memo would provide greater clarity on the Board’s regulation of social media policies, I sat down and read it and, quite frankly, came to the conclusion that the Memo only adds to employers’ confusion on what they can and cannot include in their social media policies — even though the GC took the unusual step of appending to the …


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NLRB Launches Webpage Describing Protected Concerted Activity

Posted in Labor Relations

Continuing its campaign to educate workers, particularly those in non-union settings, regarding their Section 7 rights, the National Labor Relations Board this week launched a new webpage on its website specifically to describe protected concerted activity and to apprise workers of their rights "to act together for their mutual aid and protection, even if they are not in a union."

Section 7 of the National Labor Relations Act ("NLRA") states that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted


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Court Tells NLRB Not So Fast On “Quickie” Election Rule Changes

Posted in Labor Relations

The NLRB was issued a stunning rebuke yesterday by U.S. District Court Judge James Boasberg (an Obama appointee) when he ruled that the NLRB’s controversial union election rule changes were invalid because they were enacted without the required three-member quorum. The NLRB may appeal Judge Boasberg’s decision. However, at least for the present, the Court’s decision in Chamber of Commerce, et al. v. NLRB renders the union election rule changes, which took effect April 30, 2012, null and void.

The election rule changes have been the source of considerable tension between employer and union groups for the past year. They …


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Button, Button, Who’s Got The Button?

Posted in Labor Relations

Starbucks recently won a limited victory in a case involving employees wearing pro-union buttons at work. National Labor Relations Board v. Starbucks Corp. Court of Appeals Second Circuit, Case No. 10-3511. A common union organizing tactic is to have pro-union employees wear union buttons at work. Employers often have the mistaken impression that they can ban union buttons at work as part of their dress code or uniform policy. But, the NLRB and courts have consistently held that expressing support for unions by wearing buttons on clothing is a protected means of expression about union organizing. Even if the company …


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Update: NLRB Postpones Posting Rule Indefinitely

Posted in Labor Relations

The National Labor Relations Board has postponed indefinitely the effective date for its employee rights posting requirement. On its website, the NLRB states:

"The rule, which had been scheduled to take effect on April 30, 2012, will not take effect until the legal issues are resolved. There is no new deadline for the posting requirement at this time."

The NLRB’s action is a result of the decision of the D.C. Circuit Court of Appeals earlier this week enjoining the posting rule while the appeal before that court is pending. (See our earlier post – NLRB Posting Rule Lifted:  At Least


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