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Showing 12 posts in National Labor Relations Act.

NLRB to Revisit Issue of When Employees Lose NLRA Section 7 Protection When Using Threatening and Demeaning Language

While discussing work assignments with his supervisor, an employee uses abusive and profane language. In another incident, the employee disrupts a workplace meeting by playing loud music with racial and political overtones. These and other behaviors led to discipline which was in turn challenged by the employee as an unfair labor practice. In General Motors LLC and Charles Robinson (14-CA-197985; 14-CA-208242), the National Labor Relations Board (NLRB) requested public comment on when insubordinate, threatening or intimidating behavior should not constitute protected activity under Section 7 of the National Labor Relations Act (NLRA). It is not uncommon for the NLRB to request public comment in situations where there may be a policy shift.

The facts of General Motors LLC and Charles Robinson are relatively straightforward. Charles Robinson is a Union Committee representative, and he could be characterized as a zealous supporter of worker rights in a unionized environment. From a management perspective, he could just as easily be deemed a disruptive, uncooperative, intimidating, and threatening employee. Robinson was disciplined by the employer for essentially three reasons: More ›

NLRB Reverses Itself and Broadens Employer Property Rights in Restricting Access to Non-Employee Union Agents

The National Labor Relations Board (NLRB) has revisited the issue of when an employer may restrict access to its private property by non-employee union agents. In Kroger Limited Partnership, a union business agent was denied access to the food store's parking lot to solicit Kroger's customers to boycott the store. When the union agent refused to leave, the supermarket called police to force the union agent to leave the premises. The NLRB was subsequently was called upon to assess whether Kroger's actions were unlawful and discriminatory under the National Labor Relations Act (NLRA). More ›

A "Perfectly Clear" Successor Under the NLRB is Less Than Perfectly Clear

A recent decision by a three judge panel of the federal D.C. Circuit Court of Appeals highlights potential pitfalls for successor employers who want to establish new compensation terms. In First Student, Inc., the D.C. Circuit panel concluded the employer in that case was a "perfectly clear" successor under existing precedent of the National Labor Relations Board (NLRB) because it intended to offer employment to the all of the employees of the unionized predecessor who met minimum criteria. The concept of a perfectly clear successor first was raised by the United States Supreme Court in NLRB v. Burns International Security Services, Inc.. In that decision, the Supreme Court noted that in certain circumstances it is "perfectly clear that the new employer plans to retain all of the employees in the unit," and the employer then is obligated to bargain with the union before making unilateral changes to wages, benefits, and other mandatory terms or conditions of employment. More ›

NLRB Serves Up Guidance for Restaurants on Mandatory Arbitration Agreements in Post-Epic Systems Era

The National Labor Relations Board (NLRB) recently provided guidance in Cordúa Restaurants, Inc., 368 NLRB No. 43, for employers seeking to require employees to sign class action and collective action waivers in arbitration agreements when facing litigation. By way of background, the U.S. Supreme Court previously held in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018), that agreements containing class action and collective action waivers, and provisions stipulating that employment disputes be resolved by individualized arbitration, do not violate the National Labor Relations Act. As a result, the Court held that these agreements must be enforced as written to follow the Federal Arbitration Act (the "Act"). In Cordúa Restaurants, the NLRB was faced with two issues of first impression in the post-Epic Systems era: (1) whether the Act prohibits employers from circulating such agreements in response to employees opting in to a collective action; and (2) whether the Act prohibits employers from threatening to discharge an employee who refuses to sign a mandatory arbitration agreement. The NLRB held that both actions were consistent with Epic Systems and were not forbidden under the Act. The Cordúa Restaurants decision provides significant opportunity for employers to revise arbitration agreements to preclude participation in these multi-party litigations and require that employees sign these agreements. More ›

In a Win for Labor Unions, Illinois Governor Pritzker Signs Bill Prohibiting Municipalities from Establishing Right-to-Work Zones

Illinois Governor J.B. Pritzker recently signed into law the Collective Bargaining Freedom Act, formally ending an initiative of former Illinois Governor Bruce Rauner. Effective as of April 12, 2019, the new law limits the ability of municipalities, counties, villages, and taxing districts to enact "right-to-work zones" which prevent employers and unions who work within the zones from executing, implementing, and enforcing union security provisions. More ›

The Fight for $15 and the NLRB

In-N-Out Burger, Incorporated (In-N-Out) found itself on the wrong side of National Labor Relations Board (NLRB) unfair labor practice proceedings for prohibiting its employees from "wearing any type of pin or stickers" on their uniforms. The Fifth Circuit, in In-N-Out Burger, Incorporated v. National Labor Relations Board (No. 17-60241, decided July 6, 2018), upheld a NLRB finding that In-N-Out violated Section 8(a)1 of the National Labor Relations Act by prohibiting its employees from wearing a "Fight for $15" button and for maintaining an overly broad uniform policy. More ›

Lawful, Unlawful, or It Depends? NLRB Issues New Guidance on Employer Policies Affecting Section 7 Rights

Earlier this month, the National Labor Relations Board's (NLRB) General Counsel issued Memorandum GC-18-04 providing guidance on handbook rules in light of the Board’s Boeing Company decision. In Boeing, the Board reevaluated when a seemingly neutral work rule, handbook rule, or employment policy violates the rights of workers granted by Section 7 of the National Labor Relations Act (NLRA). In doing so, it adopted a new test balancing the negative impact a given rule may have on an employee’s ability to exercise his or her Section 7 rights versus the employer’s right to maintain a disciplined and productive workplace. It also laid out three categories of rules: those that are always lawful, those that are usually always unlawful, and those it depends-type rules falling into the middle category. The GC’s guidance sorts common workplace policies into these three buckets. More ›

NLRB Agenda Includes Setting a Regulatory Joint Employer Standard

We have written previously regarding the saga of the National Labor Relations Board and joint employer status here, here, and here. In short, the question of when a business is responsible for another business’s employees has been in flux for a few years, affecting franchisee/franchisor relationships, businesses that utilize temporary employees, parent and subsidiary companies, and similar arrangements. More ›

Lessons for Employers in the Case of a Former Google Software Engineer Fired for Violating Company Anti-Discrimination Policies

Earlier this week, an NLRB attorney issued an advice memo concluding that software giant Google did not violate Section 7 of the National Labor Relations Act ("NLRA"), when the company terminated software engineer James Damore, who penned a controversial memo criticizing Google’s diversity initiatives. The memo, and Google's swift reaction, were widely covered in the press and speculation followed questioning whether Google's response was appropriate or whether it would face a challenge.   More ›

The NLRB Rings in the New Year by Unringing a Few Bells

Over the last month, we have seen a number of significant restorations of status quo antes. These have come in the form of reverting to earlier precedent, regulations, or guidance. Without further ado, we present some of the more notable developments: More ›

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