Employer Law Report

Tag Archives: NLRB

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 …

NLRB Re-Embarks On Quest to Speed Up Union Elections

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 …

NLRB Posting Rule is Dead

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 …

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

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 …

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

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 …

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

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 …

NLRB Posting Rule Dealt Another Blow

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 …

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

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 …

NLRB Issues Advice Memorandum Weighing In On Confidentiality of Employer Investigations

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 …

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

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

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

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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