NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected Activity

NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected Activity

December 14, 2020

As we have often discussed, there is a fine line between protected and unprotected activity. Profane outbursts, deliberate misconduct, or highly-disruptive strikes may fall outside the protection of the NLRA, subjecting employees to lawful disciplinary action by their employers. On December 7, 2020, the Board reaffirmed its prior decisions holding that an employer’s discharge of an employee engaged in protected activity may not be justified solely by its subjective belief that the employee misbehaved. Rather, the employer must demonstrate that the purported misconduct actually occurred to implement discipline. This determination may be quite challenging in light of conflicting…

NLRB: Employer Tweet Unlawfully Restrained Protected Activity

November 30, 2020

On November 24, 2020, the Board held that a high-level executive’s tweet violated Section 8(a)(1) of the NLRA by interfering with or restraining employees’ protected, concerted activity. In FDRLST Media, LLC, 370 NLRB No. 49 (2020), the Board reaffirmed its longstanding principle that a violation of Section 8(a)(1) does not depend on the employer’s motive or tone. An executive’s tweet threatening employees that if anyone “tries to unionize I swear I’ll send you back to the salt mine” violated the Act because a reasonable employee could view it as expressing an intent to take adverse action against employees who…

NLRB Issues Several Advice Memoranda Providing Guidance on COVID-Related and Other Workplace Issues

September 22, 2020

On September 15, 2020, the National Labor Relations Board (the “NLRB” or “Board”) Division of Advice (“Advice”), published four Advice Memoranda addressing an array of issues ranging from COVID-19-related unilateral actions to non-work political advocacy and the legality of confidentiality provisions in separation agreements. The Memoranda were drafted by Advice last month, and join the panoply of other recent guidance released by Advice on July 15 and August 13. Advice Memoranda are only binding on the parties subject to the instant dispute, but they are publicly released to give the public an idea of how the agency might handle…

No Reasonable Expectation of Recall? No Election: Board Cancels Union Election at Casino Closed During COVID-19

September 11, 2020

The National Labor Relations Board recently cancelled a union election at a Las Vegas casino that suspended its operations and laid off employees amid the COVID-19 pandemic. In NP Texas LLC d/b/a Texas Station Gambling Hall and Hotel and Local Joint Executive Board of Las Vegas, 370 NLRB No. 11 (2020), the Board found that the Regional Director erred in scheduling the election given that the laid-off employees had no “reasonable expectation of recall” and thus were ineligible to vote. Texas Station Casino and the COVID-19 Pandemic On March 18, 2020, the Governor of Nevada issued an emergency declaration…

NLRB Division of Advice Dishes Some Guidance With Respect to COVID-Related ULP Charges

By Abigail Rosenblum

August 18, 2020

The pandemic has thrown a number of obstacles at employers and employees as everyone attempts to navigate a novel situation. On August 13, 2020, the National Labor Relations Board (“NLRB”) Division of Advice (“Advice”), the agency’s internal think-tank, published five Advice Memoranda dismissing unfair labor practice charges against employers in connection with issues concerning the COVID-19 pandemic. The Memoranda were all drafted by Advice within the past two months, expanding upon the guidance previously released on July 15. Each Memoranda addresses a different COVID-related complaint concerning a variety of topics, such as employers’ responses to employees voicing concerns about workplace…

NLRB Restores Precedent, Gives Employers Freedom to Unilaterally Discipline Union Employees Between Certification and First Contract

June 25, 2020

The National Labor Relations Board continues to overrule Obama-Board precedent at a rapid pace. (See our prior blog posts here, here and here for a few recent examples.) On June 23, 2020, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the Board overturned Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016), which had required employers to provide notice and an opportunity to bargain to a newly-certified union on “serious” disciplinary action against unit employees, even before a collective bargaining agreement is in place. In doing so,…

NLRB GC Issues Guidance Memo Laying Out Changes to Evidence Collection in Unfair Labor Practice Investigations

June 19, 2020

NLRB General Counsel Peter Robb issued a Memorandum on June 17th setting forth new guidelines for how Regions conduct unfair labor practice investigations—specifically, how Regions secure the testimony of former supervisors and agents, as well as how to handle audio recordings. The stated goal of the Memo is to “promote transparency and apply fairness” during the investigatory process. Testimony of Former Supervisors and Agents and Fact Witnesses during ULP Investigations First, Regions are instructed to now allow employers or labor organizations to be physically present during a Board interview of a former supervisor or agent when she/he is providing adverse…

Update: NLRB Extends Suspension of Notice-Posting Requirements to Cases Involving Informal Settlement Agreements

By Alex Downie

May 21, 2020

As we discussed here, the National Labor Relations Board decided early this month that it would temporarily suspend the remedial notice-posting and emailing requirement at facilities shut down due to the COVID-19 pandemic until after reopening and a return of a “substantial complement” of employees. See Danbury Ambulance Service, Inc., 369 NLRB 68 (2020). The Danbury Ambulance ruling addressed the posting obligation following the issuance of a Board decision in a contested unfair labor practice case. Normally, employers are required to post the Notice to Employees at the workplace within 14 days after issuance of a decision. The…

BREAKING: NLRB to Resume Unfair Labor Practice Trials June 1, 2020

By Alex Downie

May 19, 2020

As many states throughout the country have begun implementing phased reopening plans, so too has the NLRB begun to return to a semblance of normality. Representation elections resumed in early April, and the NLRB recently provided clarification as to how representation hearings should be conducted. In the last few weeks the agency has counted ballots in representation elections by videoconference. The agency’s prosecutorial arm is now ramping back up. The NLRB Division of Judges announced on May 15 that it will resume holding hearings on unfair labor practice complaints beginning on Monday, June 1. Unfair labor practice trials…

NLRB Establishes Bright-Line Rule Voiding Election Ballots with Dual or Additional Markings

May 15, 2020

One area of controversy over the years is the NLRB’s attempt to interpret markings on representation ballots that are not clearly “yes” or “no.” This has given rise to a number of tests for divining voter intent. Overruling decades of conflicting precedent involving the interpretation of a voter’s intent, the NLRB issued a key decision on May 14, 2020, establishing a bright-line rule regarding the validity of ballots with markings in both the “Yes” and “No” boxes, or stray marks outside the boxes. From this point forward, dual markings or stray markings on the ballot will result in the vote…

NLRB Suspends Remedial Notice-Posting Requirements for Facilities Shutdown During COVID-19 Pandemic

May 7, 2020

The Board continues to issue decisions amidst the COVID-19 pandemic, while acknowledging that business operations around the country are far from “business as usual.” The agency is up and running. Representation elections vote counts are being conducted via video conference as are hearings. The remedy stage of unfair labor practice proceedings also has caught up with the these crisis-ridden times. The headline from the Board’s decision on May 6, 2020 in Danbury Ambulance Service, Inc., 369 NLRB 68 (2020), is an acknowledgment of this “new normal.” The NLRB temporarily suspended its standard remedial requirement that an employer must post…

NLRB: Employee’s Profanity and Threatening Comments Insufficient to Forfeit Protections of the Act

April 6, 2020

In the past, we frequently have discussed protected activity and how an employee’s profane outburst or deliberate conduct may render otherwise protected activity, “unprotected.” However, as this recently issued decision reinforces, the Board is usually quite tolerant of impulsive behavior and outbursts in response to legitimate grievances over the terms and conditions of employment. Plant Worker Refuses to Sign Dues-Checkoff Form In Alle Processing Corp. 369 NLRB No. 52 (2020), the employer, a manufacturer and packager of kosher food products for hospitals, entered into a bargaining relationship with a local union. The parties’ CBA contained a union-security clause requiring…

BREAKING: NLRB Announces Representation Elections Will Resume April 6, 2020

April 2, 2020

On March 19, 2020, the NLRB announced that it was suspending all representation elections through April 3, 2020. The Board stated that the suspension was necessary to ensure the safety of its own employees, as well as those members of the public involved in the elections. Today, the Board announced that it will not extend the temporary suspension past April 3, 2020, and elections will resume beginning Monday, April 6, 2020. In a short statement, the Board indicated that over the last two weeks, the General Counsel had developed solutions to the logistics problems caused by the closure of several…

NLRB Issues Final Rule Reworking Union Election Procedures

April 1, 2020

Although, like everyone else, the personnel at the NLRB have been consumed with the impact of the COVID-19 pandemic on daily operations, including the ability of its Regional Offices to function and serve the public, the Board nevertheless continues moving forward on non-COVID-19 matters as well. On March 31, 2020, the NLRB announced it had finalized three amendments to its rules and regulations regarding union election and recognition procedures. The rule was finalized on April 1, 2020, and will take effect on May 31, 2020. The Board implemented the final rules with minor modifications from the proposed rules published on…

CARES ACT Relief for Mid-Size Businesses Comes with Important Union Related Conditions

April 1, 2020

Mid-sized businesses (defined as 500 to 10,000 employees) impacted by the Coronavirus may be able to obtain relief loans under the COVID-19 stimulus law, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), but only if non-union employers agree not to oppose the unionization of their workforce for the term of the loan, and if unionized employers agree not to “abrogate” existing collective bargaining agreements for the term of the loan and 2 years following loan repayment. First, for the entire term of a Treasury Department loan, an employer must agree to “remain neutral in any union organizing effort.” …

NLRB General Counsel Issues Guidance on the Duty to Bargain During Emergencies