Employer Law Report

Tag Archives: NLRB

Full Eighth Circuit upholds employee terminations in Jimmy John’s paid sick leave dispute

In an en banc decision, the 8th U.S. Circuit Court of Appeals has overturned an earlier panel decision, which we reported on here, in MikLin Enterprises Inc. v. NLRB, in which the panel had upheld the NLRB’s finding that a Jimmy John’s franchisee had violated the rights of its employees under the National Labor Relations Act, when it fired them for hanging posters at their shops that suggested that the customers could be eating sandwiches that were made by sick employees in an effort to pressure the franchisee to adopt a paid sick leave policy.

In the …

Department of Labor rescinds recent joint employer guidance

On June 7, 2017 the Secretary of Labor, Alexander Acosta, announced that the US Department of Labor (DOL) was withdrawing its 2015 and 2016 guidance on joint employment and independent contractors. The Obama-era guidance expanded how joint employment was defined to include employers that have indirect or potential control over the terms and conditions of employment, as we previously reported. By moving away from this guidance, the DOL returns to the previous direct control standard. The move also rescinds an Interpretation Letter stating the DOL would broadly define “employee” under the Fair Labor Standards Act (FLSA) and that most …

“Can you hear me now?” NLRB judge calls on Verizon to remove restrictive handbook policies

Employers beware…it may be time yet again to review your handbooks to make sure that your policies do not violate the National Labor Relations Act (NLRA). A National Labor Relations Board (NLRB) judge recently ordered several Verizon Wireless stores to strike certain employee handbook policies.  In all, the decision means Verizon Wireless must strike 10 employee handbook policies that violated the NLRA because they could be read to chill employees’ rights to engage in protected concerted activity.

Section 7 of the NLRA grants employees the right to engage in concerted activity for the purpose of mutual aid and protection. …

NLRB panel majority upholds employer right to justify “no recording” policy; denies general counsel summary judgment motion

In a follow up to its Whole Foods Market, Inc. decision, which found unlawful an employer policy prohibiting workplace recordings by employees without prior management approval, an NLRB panel majority in Mercedes Benz U.S. International, Inc. denied the General Counsel’s motion for summary judgment on a similar “no recording” policy. According to the majority, Mercedes was entitled to a hearing, which would provide an opportunity to present evidence regarding its business justifications for the policy, and about whether the policy was communicated or applied in a manner that clearly conveyed an intent to permit protected activity.

Member Pearce dissented, arguing …

NLRB’s Dish Network decision: A sign of things to come for employer arbitration agreements?

As he tends to remind us on a regular basis, Donald Trump won the presidential election back in November 2016. But that doesn’t mean that National Labor Relations Board (NLRB) policy turns on a dime. The Board has only three members at this time with Member Philip Miscimarra (R) in the role of Acting Chairman still outnumbered by Members Pearce (D) and McFerran (D). With confirmations of even cabinet level nominations still pending, it could be well into 2018 before a full complement of Board Members are in place and the Republicans take the majority.

Although the Board’s recent decision …

The door may be open for county or municipal government “right-to-work” laws in Ohio

Right-to-work laws limit the “union security” a union can achieve in a collective bargaining agreement with an employer. In states with no right-to-work law, unions can bargain for contract provisions requiring that, as a condition of continued employment, employees must either join the union or at least pay monthly fees to the union for its collective bargaining efforts. In states that have right-to-work laws, that sort of union security provision is illegal. There are 26 states with right-to-work laws currently. Ohio does not have a right-to-work law.…

Above the fray: The employer’s how-to guide on navigating the election season

A special thanks to Adam Bennett for his assistance with this article.

Election Day is quickly approaching. Rejoice! There really is a light at the end of the tunnel when the endless stream of attack ads will cease to exist. But before the last ballot is cast, the last precinct closes and the final votes are tallied, employers are sure to have plenty of questions about how to address employees’ political expression in the workplace without violating the law or making any employee feel alienated. To avoid being left with post-election blues, Ohio employers are wise to consider how they …

8th Circuit upholds unfair labor practice findings in Jimmy John’s “Sick Sandwich” case

In a 2-1 decision, the 8th Circuit on March 25th in MikLin Enterprises, Inc., v. National Labor Relations Board enforced an NLRB Order finding that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for participating in a poster campaign designed to focus public attention on what they felt was the franchisee’s inadequate sick leave policy. As part of the campaign, the workers hung posters at their shops and then later elsewhere suggesting that customers would not be able to visually tell the difference between sandwiches made by …

DOL joins NLRB in making joint employment an enforcement priority

In prior posts (Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes,” and ; NLRB poised to relax standard for establishing joint employment; may mean more union issues in franchising and temporary service worker deals ), we wrote about decisions by the National Labor Relations Board (NLRB) that expand the definition of joint employment and broaden potential liability for violations of the National Labor Relations Act. Last month, the U.S. Department of Labor (DOL) joined the NLRB in making joint employment an enforcement priority when it issued an Administrator’s Interpretation and …

Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes.”

Following a decision last week by the National Labor Relations Board (NLRB), it is likely that all companies that use temporary staff workers will be considered a “joint employer” with the temporary staffing agency if efforts are made by a union to organize the temporary workers.

The use of temporary staff is a significant part of the business plan for many companies. Although it was in the past a strategy used primarily by manufacturing companies, temporary staffing is now common across many industries, including warehousing, logistics and service. The potential advantages to using temporary staff include off-loading human resource responsibilities, …

Another Federal District Court upholds NLRB expedited election rules

In April 2015, the National Labor Relations Board (NLRB) implemented a rule that effectively speeds up the time in which union representation elections occur. The process toward a union representation election typically starts when the union petitions the NLRB to conduct an election. During the months since the rule took effect, the time between petition filing and the representation election has been about 23 days. That is down 39.5 percent from the 38 day average that was common before the rule went into effect. As long as the rule remains in effect, there is every reason to expect this trend …

The NLRB is prepared for its new election rule, are you?

The NLRB’s controversial “quickie election” rule is slated to take effect April 14, 2015. That’s next week! Two lawsuits filed by employer groups in January to block the rule are pending in separate federal courts of appeals. However, absent a “hail Mary” ruling by one of these courts, employers have to ask themselves if they are prepared for the NLRB’s new election rule that takes effect next Tuesday.

The NLRB’s General Counsel (“GC”) has taken further steps to ensure that his office is ready. On April 6, 2015, NLRB GC Richard F. Griffin, Jr. issued a 36-page guidance memorandum to …

NLRB: employer unlawfully fired employee for calling supervisor a “NASTY M____ F____ER”

On Tuesday, March 31, 2015, the NLRB issued an order upholding an ALJ decision that Pier Sixty LLC violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it terminated an employee who wrote on his Facebook page that his supervisor was a “NASTY M____ F____ER.”

According to the Board’s majority opinion, a number of service employees at Pier Sixty had expressed interest in union representation, in part because of concerns that management repeatedly treated them disrespectfully and in an undignified manner. Two days before the union election, a 13-year employee, who was working as a server at …

NLRB General Counsel provides roadmap for handbook policies

Pushpin marking location on mapIf you have been trying to follow recent NLRB cases and guidance for what is considered legal in handbook policies, and if you feel a little lost, you are not alone. No employer wants handbook policies that a federal government agency considers illegal, but lately it has been a bit of a challenge to figure out what the NLRB will bless and what it will not. There is a little more direction now. The NLRB General Counsel recently issued a 30-page memorandum for guidance on handbook rules. The GC’s stated purpose is to “help employers to review their handbooks and …

NLRB “quickie election” rule challenged in court

On December 18, 2014, we posted about the National Labor Relations Board (“NLRB”) proposed rule which will expedite procedures for union representation petitions and elections. The proposed rule is expected to make it easier for unions to successfully organize employees because it will curtail the time available for employers to communicate to employees before the vote occurs.

The proposed rule is to take effect April 14, 2015. On Monday, January 5, 2015, the United States Chamber of Commerce, the National Association of Manufacturers and other management representative groups filed a lawsuit in the United States District Court for the District …

NLRB poised to relax standard for establishing joint employment; may mean more union issues in franchising and temporary service worker deals

On Friday, December 19, 2014, the NLRB General Counsel’s office issued complaints against McDonalds and 13 of its franchisees, alleging that they jointly retaliated against workers who participated in the many fast food minimum wage protests that occurred around the country earlier this year. Many business analysts are projecting that a Board decision finding that McDonald’s is a joint employer with its franchisees would rock the fast food industry as well as the many other industries that rely heavily on the franchising model for their economic viability. While the McDonald’s complaints are getting a lot of attention, the Board itself …

Obama Board declares 30-year old NLRB deferral standard inadequate

On December 15, 2014, the National Labor Relations Board (“NLRB” and “Board”) issued a decision in which the three Democratic-appointed members of the Board struck down the standard that the NLRB has applied for the last 30 years to determine whether to defer to arbitral decisions in cases that also involve alleged violations of Section 8(a)(3) and (1) of the National Labor Relations Act (“NLRA”). The case, Babcock & Wilcox Construction Co., Inc., is broad in scope, because the majority also use it as an opportunity to announce changes to the NLRB’s pre-arbitral deferral standard and to its standard …

NLRB begins its “purple” reign: Board holds employers must permit employee use of company email systems for union organizing

In a decision issued yesterday, the National Labor Relations Board opened the door for employees to use company email to send messages encouraging co-workers to unionize. In Purple Communications, Inc., the Board reversed what had been the law for the past 7 years. In its 2007 Register Guard decision, the Board had allowed companies to prohibit employee use of company email to solicit support for any cause, including union organizing. Reversing course in Purple Communications, the Board now holds that companies must permit the use of company email for solicitation, at least during non-working time, which is generally …

NLRB reinstates food industry employees following work-related complaints

Employees today are certainly more media and marketing savvy than they were even 10 years ago, and they have more tools through which they can reach the public and each other to let their voices be heard. Two recent NLRB cases demonstrate that if employers are too aggressive in attempting to combat these employee communications, they can end up on the wrong end of an unfair labor practice finding.

In Triple Play Sports Bar & Grille, the National Labor Relation Board held that two employees had engaged in protected concerted activity under the National Labor Relations Act (“Act”) when …

NLRB decisions on “mini-unit organizing”

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 …

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

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 …

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

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?…

NLRB General Counsel Announces Priority Matters To Be Submitted For Advice

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” …

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

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 …

LexBlog