Archives: NLRB

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The NLRB Embraces Relativism in its Relevance Test

Photo of Christian WhitePhoto of Todd DawsonPhoto of Kubicki, Paul CBy Christian White, Todd Dawson and Kubicki, Paul C on Posted in NLRB
Under the National Labor Relations Act, unions are entitled to request information from an employer that is relevant to carrying out the union’s representation duties. The key limiting principle is that the union must demonstrate the “relevance” of information that does not pertain directly to the wages, hours or working conditions of bargaining unit employees. … Continue Reading

Severing from Precedent: NLRB Restricts Employers’ Ability to Include Standard Confidentiality and Non-Disparagement Provisions in Severance Agreements

Photo of Delores ChichiPhoto of Christian WhiteBy Delores Chichi and Christian White on Posted in NLRB
The National Labor Relations Board issued a decision that reversed several Trump-era rulings allowing employers to proffer severance agreements to employees containing broad confidentiality and non-disparagement provisions. The Board’s decision holds that the “mere proffer” of a severance agreement containing a confidentiality and/or non-disparagement provision is unlawful where the clause is drafted too broadly and would … Continue Reading

NLRB Gifts Employees Expansive Remedies in Time for the Holiday Season

Photo of Pat MuldowneyPhoto of Nailah BowenBy Pat Muldowney and Nailah Bowen on Posted in NLRB
“You get more remedies! You get more remedies! Everybody gets more remedies!” Employers found to have committed an unfair labor practice (ULP) now may be required to compensate employees for interest and late fees on credit cards, penalties for early withdrawals from retirement accounts, out-of-pocket medical expenses, and other costs incurred to make ends meet. … Continue Reading

To Deduct or Not To Deduct – NLRB Revisits Union Dues Checkoff Post-CBA Expiration

Photo of Pat MuldowneyPhoto of Nailah BowenBy Pat Muldowney and Nailah Bowen on Posted in NLRB
Whether employers must continue to deduct union dues from employees’ paychecks and forward such deductions to the union (i.e., a “dues checkoff” provision) after the expiration of a collective bargaining agreement (CBA) is of critical importance in the negotiation process. Not having to deduct union dues is a powerful weapon for an employer to force … Continue Reading

NLRB Upholds Employers’ Right to Restrict Employees’ Email Use for Union Organizing – for Now

Photo of Pat MuldowneyPhoto of Erin SalesBy Pat Muldowney and Erin Sales on Posted in NLRB
The issue of whether an employer can ban its employees from using the company email system for union organizing has been the subject of heated litigation before the National Labor Relations Board (NLRB or Board). Since its 2007 decision in Register Guard, 351 NLRB 1110, the Board has vacillated between finding that such bans unlawfully … Continue Reading

Employers Beware: NLRB Remedies Likely to Be More Expansive Moving Forward

Photo of Christian WhitePhoto of Carlos TorrejonPhoto of Todd DawsonBy Christian White, Carlos Torrejon and Todd Dawson on Posted in NLRB
For the first time in over three decades, the National Labor Relations Board (NLRB or Board) has ordered an employer to reimburse employees for wages they lost while attending negotiation sessions on behalf of the union. Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 371 NLRB No. 118 (2022). The Board found that the employer involved in the … Continue Reading

Joint Employer Test Must Consider ‘Reserved or Indirect Control,’ D.C. Circuit Rules

Photo of Todd LebowitzBy Todd Lebowitz on Posted in NLRB
In 2009, the James Brown compilation album The Godfather’s Smackdown, Live! was released.It’sa two-disc compilation of live shows from 1980. I never saw James Brown live, but I did see James Brown’s Celebrity Hot Tub. On Friday, the D.C. Circuit Court of Appeals issued a different kind of smackdown, chastising the National Labor Relations Board (NLRB) for ignoring … Continue Reading

Stacking the Deck: NLRB General Counsel Seeks Union-Friendly Labor Law Reform in Card Check Recognition Procedure

Photo of Christian WhitePhoto of Carlos TorrejonBy Christian White and Carlos Torrejon on Posted in NLRB
In what can only be viewed as tilting the odds in favor of organized labor, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo recently filed a brief with the five-member, Democratic-controlled Board in a case pending on appeal – Cemex Construction Materials Pacific, LLC – to request the reinstatement of the Joy Silk doctrine. … Continue Reading

NLRB General Counsel Seeks to Outlaw Employer Use of Captive Audience Meetings

Photo of Todd DawsonPhoto of Christian WhitePhoto of Carlos TorrejonBy Todd Dawson, Christian White and Carlos Torrejon on Posted in NLRB
On April 7, 2022, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued what may be her most pro-union directive to date – and that’s saying something. In GC Memorandum 22-04, Abruzzo announced her intention to seek a ban on employer mandatory meetings during union organizing campaigns, commonly referred to as “captive audience meetings.” … Continue Reading

The Times Are A-Changing for Employer Handbooks … Soon

Photo of Christian WhitePhoto of Todd DawsonPhoto of Carlos TorrejonBy Christian White, Todd Dawson and Carlos Torrejon on Posted in NLRB
As we previously reported, the National Labor Relations Board (the Board) invited public comment in January on whether it should overrule its current standard for determining the lawfulness of employee handbook policies and work rules. That standard – which applies in both union and nonunion workplaces – was adopted by the Board during the Trump … Continue Reading

Staying the Course … for Now

Photo of Todd DawsonPhoto of Christian WhiteBy Todd Dawson and Christian White on Posted in NLRB
National Labor Relations Board Confirms Presumption that Single-Store Units Are Appropriate The National Labor Relations Board (Board) recently confirmed that single-store bargaining units are presumed to be appropriate. Starbucks Corp., 371 N.L.R.B. No. 71 (Feb. 23, 2022). The union involved in the case petitioned to represent a unit of Starbucks employees who worked at a … Continue Reading

Sentence First, Verdict Later!

Photo of Christian WhitePhoto of Todd DawsonBy Christian White and Todd Dawson on Posted in NLRB
NLRB Orders Employer To Grant Undetermined Wage Increase These days, the National Labor Relations Board (NLRB or Board) just gets curiouser and curiouser. In one of its latest adventures on the other side of the looking glass, the Board held that a hospitality employer violated the law by failing to provide a wage increase to … Continue Reading

The NLRB Signals It Is Time To Review Employee Handbooks – Again

Photo of Christian WhitePhoto of Carlos TorrejonBy Christian White and Carlos Torrejon on Posted in FTC, NLRA, NLRB
“I’ll be back,” as famously stated by Arnold Schwarzenegger in “The Terminator,” likely applies to the National Labor Relations Board’s (NLRB) prior, less-employer-friendly test for examining workplace policies and procedures. Earlier this month, the NLRB invited public briefing on whether it should adopt a new legal standard when evaluating the lawfulness of employer rules. In … Continue Reading

Another One Bites the Dust? NLRB Request for Briefing on Independent Contractor Standard Suggests Another Trump-Era Decision Is About To Be Overruled

Photo of Todd DawsonPhoto of Christian WhiteBy Todd Dawson and Christian White on Posted in NLRA, NLRB
Weeks after inviting public briefing on a potential change in the standard for determining the appropriateness of proposed bargaining units (discussed here), the National Labor Relations Board (NLRB) has again invited briefing in a pending case involving the standard for determining whether workers are properly classified as independent contractors under the National Labor Relations Act. … Continue Reading

The First Domino to Fall? NLRB Solicits Public Input on Test for Determining Appropriate Bargaining Units

Photo of Todd DawsonPhoto of Christian WhiteBy Todd Dawson and Christian White on Posted in NLRB
In a somewhat ominous sign of things to come, the National Labor Relations Board (NLRB or the Board) has invited briefing on whether to change the test for determining whether a union has proposed an appropriate employee voting group (i.e., a “voting unit”) in petitioning for an NLRB representation election. The current standard that applies … Continue Reading

Money, Money, Money Is Not Always Funny or Sunny – Just Take a Look at the NLRB’s Substantial Increases in Monetary Remedies and Job Reinstatements

Photo of Christian WhitePhoto of Todd DawsonBy Christian White and Todd Dawson on Posted in NLRB
On Nov. 5, 2021, the iconic Swedish band ABBA released its first album of new material in 40 years, and, amazingly, it is their highest-charting album ever on the Billboard 200. (If for some reason you are not familiar with ABBA – and we are not really sure how that could possibly be – check … Continue Reading

Spoiler Alert: The NLRB Is Poised to Dramatically Rework Its Joint Employer Standard

Photo of Christian WhitePhoto of Todd DawsonBy Christian White and Todd Dawson on Posted in Joint employer standard, NLRA, NLRB
When I was a kid, it was a thrill (and, yes, it still is today) to watch all the movie trailers before the main feature. Unfortunately, some of those trailers actually spoiled the movie they were previewing (thinking of you, Kingsman: The Golden Circle). Well, the National Labor Relations Board (NLRB or the Board) has … Continue Reading

Through the Looking Glass, Part 2: What Does ‘Protected Concerted Activity’ Look Like?

Photo of Christian WhitePhoto of Todd DawsonBy Christian White and Todd Dawson on Posted in NLRA, NLRB, Wage and Hour
As explained in a prior post, the National Labor Relations Act (NLRA) gives employees the right to engage in “protected concerted activity” when such activity is intended to improve their wages, benefits and working conditions. We also discussed NLRB General Counsel Jennifer Abruzzo’s intention to expand what falls within the definition of “working conditions” in … Continue Reading

Hands Off My Tech: Employers May Not Restrict Employee Communications Transmitted via Third-Party Smartphone Applications

Photo of Todd DawsonPhoto of Christian WhiteBy Todd Dawson and Christian White on Posted in NLRB
The National Labor Relations Board’s (NLRB) Division of Advice (Advice), which provides guidance to the NRLB’s regional offices regarding difficult and novel issues, recently released an internal memo concerning employee online communications that should be cause for concern among employers. Specifically, Advice found that an employee engaged in protected activity by discussing COVID-19 safety concerns … Continue Reading

Through The Looking Glass: The NLRB Seeks To Expand The Concept Of ‘Protected Concerted Activity’ Beyond Its Imaginable Limits

Photo of Christian WhitePhoto of Todd DawsonBy Christian White and Todd Dawson on Posted in NLRA, NLRB, Wage and Hour
Since the passage of the National Labor Relations Act (NLRA) in 1936, employees have possessed a right to engage in “protected concerted activity,” meaning they have the right to discuss workplace concerns and take action for mutual aid or protection. Indeed, the National Labor Relations Board’s (NLRB or the Board) website explicitly informs employees that … Continue Reading

‘Please Speak into My Lapel’: D.C. Circuit Finds That NLRB Properly Considered Secret Recording That Arguably Violated State Law

Photo of Todd DawsonPhoto of Christian WhiteBy Todd Dawson and Christian White on Posted in NLRB
The U.S. Court of Appeals for the District of Columbia Circuit recently held that the National Labor Relations Board (NLRB or Board) properly considered a secret recording of an employer meeting with employees in finding that the employer committed multiple unfair labor practices. The employer meeting followed a strike during which the striking employees loudly … Continue Reading
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