National Labor Relations Board

*Special thanks to Porter Wright summer law clerk, Diego De La Vega, for his assistance with this post.

On June 1, 2023, the Supreme Court of the United States issued a decision some have deemed a blow to the right to strike. An 8-1 decision, Glacier Northwest v. International Brotherhood of Teamsters Local Union No. 174 crossed ideological lines, as both conservative and liberal members of the Supreme Court either joined the majority opinion or concurred.

Continue Reading Shot through the heart: Did SCOTUS give strikes a bad name?

A recent National Labor Relations Board decision is a reminder that consistency is an important factor in determining whether an employer has committed an unfair labor practice. In the case of two Kroger subsidiaries, the NLRB held that the National Labor Relations Act protects an employee’s right to wear buttons and masks in support of Black Lives Matter.

Continue Reading Consistency matters: When the employer speaks, the employees may answer

How Constellium should inform employers’ policies and practices 

Assume an employee writes the words “whore board” on company overtime sign-up sheets. Serious misconduct, right? In fact, the employer faced with this situation terminated the employee for offensive conduct.

In Constellium Rolled Products Ravenswood, LLC v. NLRB, the U.S. Court of Appeals for the District of Columbia agreed with a National Labor Relations Board (NLRB) decision finding the termination was unlawful. The case illustrates that National Labor Relations Act protections sometimes can trump an employer’s right to regulate potentially offensive language at work.

Continue Reading When it comes to employee discipline, consistency is key

The NLRB’s General Counsel’s Office’s approach to employer social media policies and the discipline of employees pursuant to such policies has been a frequent topic of this blog. In fact, just last month, I called on both the NLRB and employers to take a step back from the rhetoric on this controversial topic. Yesterday, the NLRB’s General Counsel’s Office issued another Advice Memorandum (dated April 21, 2011), which again addresses the social media topic but this time upholds the employer’s discipline of an employee for posting offensive tweets on Twitter. In Lee Enterprises, Inc., d/b/a Arizona Daily Star the charging party was the public safety reporter for the Arizona Daily Star newspaper in Tucson. The newspaper had no social media policy, but began urging its reporters to begin using social media, including twitter. In early 2010, the charging party posted a tweet that ridiculed a headline in the newspaper’s sports section. He was called into a meeting with the human resources director, who encouraged him to discuss any concerns he had rather than tweeting about them. About a week later, he met with the managing editor, who “prohibited [him] from airing his grievances or commenting about the Daily Star in any public forum. The charging party then refrained from tweeting about the newspaper itself, but in August and September 2010, he tweeted the following:

  • August 27 – “You stay homicidal, Tucson. See Star Net for the bloody deets."
  • August 30 – “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”
  • September 10 – “Suggestion for new Tucson-area theme song: Droening [sic] pool’s ‘let the bodies hit the floor’.”
  • September 10 – “I’d root for daily death if it always happened in close proximity to Gus Balon’s.”
  • September 10 – “Hope everyone’s having a good Homicide Friday, as one Tucson police officer called it.”
  • September 14 – “[FOIA Exemptions 6, 7(C)].”
  • September 15 – “[FOIA Exemptions 6, 7(C)].”
  • September 19 – “My discovery of the Red Zone channel is like an adolescent boy’s discovery of h…let’s just hope I don’t end up going blind.”


Continue Reading NLRB’S Office of General Counsel Issues New Advice Memorandum on Social Media