Archives: NLRB

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

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

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

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

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

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

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

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

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!

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

“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

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

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

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

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?

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

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

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

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

A Hard Rain About to Fall? House Committee Details Proposed Changes to Federal Labor Law

If you hear a clinking noise in the distance, that may be the sound of organized labor hoisting its mugs to toast the Democratic majority in Congress. The House of Representatives’ Committee on Education and Labor announced a number of proposed changes last week to the National Labor Relations Act, which House and Senate Democrats … Continue Reading

Dancing to a Different Tune: DC Circuit Gives Labor a Win by Striking Down Trump-Era Property Access Standard

(NLRB) Trump-era test for determining when a property owner may exclude a contractor’s off-duty employees from its premises. Local 23, Am. Fed’n of Musicians v. N.L.R.B., No. 20-1010, 2021 WL 3869824 (D.C. Cir. Aug. 31, 2021). On Aug. 31, the United States Court of Appeals for the District of Columbia Circuit rejected the National Labor Relations Board’s … Continue Reading

Not So Fast … the NLRB’s New General Motors Standard Isn’t a Rubber Stamp for Discipline in Cases Involving Offensive Speech

On Aug. 25, 2021, the National Labor Relations Board (NLRB) issued a decision applying its new standard for cases where an employee is disciplined for using offensive speech in the course of engaging in protected labor activity. The board initially announced the new standard in its General Motors decision issued in July 2020. In summary, … Continue Reading
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