Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Tag Archives: concerted activity

“A Day Without a Woman” May Bring Employers a Day Of Legal Troubles

Posted in NLRB
Heard about “A Day Without a Woman”?  Did your business feel any impacts of “A Day Without Immigrants”?  Not sure how, as a labor professional, you should respond to these developments?  Then you should check out this Labor and Employment Alert that we posted yesterday on our Firm’s website. In the Alert, we discuss the… Continue Reading

Court Disagrees with NLRB Ruling on Dress of Customer-Facing Employees

Posted in Employee Discipline, NLRB, Union Insignia
More than four years ago, the NLRB gave priority to an employee’s right to wear clothing with messages critical of their employer over an employer’s interest in its reputation with customers.  In a case involving AT&T employees, the NLRB ruled that an employer violated the law when it prevented its service technicians, when visiting customer… Continue Reading

Policies on Employee Appearance and Social Media Use Declared Unlawful

Posted in Employee Discipline, NLRB
Recently, the NLRB, in a three-member panel of Chairman Pearce (D) and Members Hirozawa (D) and Johnson (R), ruled on more employee handbook provisions covering an expanse of topics including social media, employee conduct, and dress and grooming. In Boch Imports, Inc., the NLRB determined that the employer, a car dealer, violated the NLRA by… Continue Reading

Just When You Thought it Couldn’t Get Worse, it Does: NLRB Protects Facebook Attack on Supervisor

Posted in Employee Discipline, NLRB, Union Organizing
Consider this employee’s Facebook post: Bob is such a NASTY MOTHERF___ER don’t know how to talk to people!!!!!!  F__k his mother and his entire f__king family!!!!  What a LOSER!!!!  Vote YES for the UNION!!!!!!! In this case, “Bob” was the employee’s supervisor.  The employee (a banquet server) published the post at least 5-10 minutes after… Continue Reading

NLRB General Counsel Releases New Guidance on Employee Handbooks

Posted in Employee Discipline, NLRB
Last week, NLRB General Counsel (GC) Richard F. Griffin, Jr. released a new report addressing problematic employee handbook provisions which could be “reasonably construed” as having a chilling effect on employees’ Section 7 activity.  Similar to the three reports previously issued by predecessor Lafe Solomon on social media cases, Griffin offers the report as guidance on… Continue Reading

Employers Won’t “Like” This One: NLRB Holds Facebook “Thumbs Up” Is Protected Concerted Activity

Posted in NLRB
By Ashley Manfull Numerous actions by the NLRB’s General Counsel and administrative law judges (highlighted in prior posts on this blog) have caused great concern for labor professionals grappling with the inappropriate comments of employees posted on social media. While these actions have made it difficult enough to determine whether employees’ online comments sufficiently cross the… Continue Reading

Cry “Solidarity” and Let Loose the NLRB: A Significant Expansion of the NLRA’s Protections

Posted in NLRB
A recent NLRB decision will likely result in a significant expansion of the activity the NLRA protects. The case, Fresh & Easy Neighborhood Market, Inc., 361 N.L.R.B. No. 12 (2014) (pdf), arose from a complaint about sexual harassment. A female employee – Elias – placed a message on a whiteboard at the request of her supervisor. A word… Continue Reading

Can You Really Call Your Boss a !$@#%#^&? Maybe, says the NLRB

Posted in NLRB
Employees sometimes get upset at work. Employers and managers sometimes do things that can cause that upset. But many employers, and I suspect many employees, believe there is a line that cannot be crossed in expressing the dismay about an employer’s action(s). There is, not surprisingly, always debate about where that line should be drawn.… Continue Reading

OSHA and NLRB Agree to New Program: Employers Beware

Posted in NLRB
Earlier this week, the NLRB announced (pdf) that it had entered into a new program with the Occupational Safety and Health Administration (“OSHA”).  The new program will likely result in the filing of more unfair labor practice charge complaints with the NLRB.  Under existing law, an employee who believes that she is being retaliated against… Continue Reading

NLRB (Again) Invalidates Employer Conduct Policy

Posted in NLRB
As readers of this blog know, the NLRB is quite interested in what the employee’s handbook or policy manual says.  A recent decision from the NLRB underscores this interest. A hospital published a “Values and Standards of Behavior” policy that, among other things, contained three different rules: A rule prohibiting employees from making “negative comments… Continue Reading

Fifth Circuit Rejects NLRB’s Decision Prohibiting Arbitration Agreement Waivers of Class/Collective Actions

Posted in NLRB
By Ben Shepler The Fifth Circuit Court of Appeals recently provided employers with some welcome holiday cheer. In a 2-1 decision, the Court rejected an NLRB ruling that called into question the wide-spread practice of having employees sign arbitration agreements that bar class or collective actions. While the Fifth Circuit’s ruling largely favors employers, the Court did… Continue Reading

Union Can Offer Gift Card to Entice Employees to Strike, says NLRB’s GC

Posted in NLRB
Yesterday, this blog covered an advice memorandum released by the NLRB’s General Counsel finding that Wal-Mart didn’t violate the law in responding to mass demonstrations and picketing by union-sponsored groups. Today, we look at another case relating to union activity directed at Wal-Mart, but this time alleging that the union violated the NLRA. In 2012, the… Continue Reading

It’s Official: NLRB Confirms Protection for Employees Involved in Facebook Rants Against Coworkers

Posted in NLRB
By Nelson Cary and Ashley Manfull As readers of this blog know, in September 2011, Administrative Law Judge Arthur Amchan was the first NLRB judge to issue a ruling on a Facebook-related termination. In Hispanics United of Buffalo, Inc., ALJ Case No. 3-CA-27872, ALJ Amchan ruled that five employees of a non-profit organization were unlawfully terminated… Continue Reading

Union Attorneys Can’t Wear Union T-shirts: Another Lesson in Context (Among Other Things)

Posted in NLRB
Last year, the NLRB held that AT&T could not prohibit its service technicians from wearing a t-shirt while visiting customer homes with the words “Inmate #” on the front and “Prisoner of AT$T” on the back. Last week, the General Counsel’s Division of Advice determined (pdf) that the New York State Public Employee Federation, a union,… Continue Reading

Termination Based on Facebook Posting Lawful, but Handbook Policy Unlawful

Posted in NLRB
By Nelson Cary and James Patrick After posting to Facebook sarcastic comments and pictures about an accident that occurred at a neighboring car dealership, owned by the same entity that owned his dealership, the employer terminated the employment of a salesman.  The NLRB unanimously adopted the ALJ’s finding that an employee was lawfully discharged for these… Continue Reading

NLRB Finds Vulgar and Threatening Statements Not Sufficiently Vulgar or Threatening to Warrant Termination

Posted in NLRB
By Nelson Cary and Al Kinzer While a petition to decertify a union was pending, a pro-union employee wanted to express his support for the union. In the employer’s breakroom, he encountered three different pro-union newsletters.  Impulsively, he scribbled onto each of these newsletters a different message. These included: “Dear P***ies, Please Read!” (The actual message did… Continue Reading

Employer Request for Confidentiality During Investigation of Complaint Unlawful

Posted in NLRB
An employee complains to human resources about misconduct by another employee.  Human resources begins an investigation to determine whether the complaint is true.  During its investigation, it requests that employees it interviews keep the matter confidential.  Unlawful?  Potentially so, according to the NLRB majority in Banner Health System, 358 N.L.R.B. No. 93 (2012), a decision released yesterday.  … Continue Reading

NLRB Announces Webpage Describing Employee Rights

Posted in NLRB
A new page on the NLRB’s website went live today.  According to the NLRB, the page "describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union."  The NLRB’s action is consistent with its push in the last couple of years to increase awareness of rights afforded under… Continue Reading

A Moment of Clarity: Third Report on Social Media Provides Employers with a Policy Deemed Entirely Lawful

Posted in NLRB
By Nelson Cary and Ashley Manfull In an extremely significant report concerning social media cases, issued on May 30, 2012, the NLRB’s Acting General Counsel (AGC) has provided more guidance to employers with social media policies.  Perhaps the most helpful information for labor professionals comes at the end of the 22 page report (pdf). In concluding… Continue Reading

NLRB’s Acting General Counsel Issues Second Report on Social Media Cases

Posted in NLRB
By Nelson Cary and Ashley Manfull Recognizing that the increased use of social media by employees commenting on work-related matters has led to many complex issues for employers, the Acting General Counsel (AGC) issued its first report in August 2011 summarizing cases involving social media issues. As the complexities of this issue are far from resolved,… Continue Reading

NLRB Invalidates Arbitration Agreement Prohibiting Class/Collective Actions

Posted in NLRB
By Nelson Cary and Ben Shepler New year, same controversial NLRB. In a decision that seems destined for appeal, the NLRB recently ruled that employers may not utilize individual arbitration agreements that prevent employees from joining in employment-related class or collective actions. The NLRB’s decision is notable because, among other things, it arguably conflicts with both the Federal… Continue Reading