By Nelson Cary and Lauren Sanders on Posted in Employee Handbooks,NLRBAs many employers know, confidentiality can be essential to performing workplace investigations. Last month, in Apogee Retail, LLC, a 3-1 decision, the NLRB agreed. Applying the test for facially neutral rules established in The Boeing Company, 365 N.L.R.B. No. 154 (2017) (discussed here), the NLRB held that workplace rules that require employees to keep pending… Continue Reading
By Allen Kinzer on Posted in Employee Discipline,NLRBSome precedent at the NLRB may be changing, but some is not. Relying on a 40-year old case, the NLRB recently ruled that an Ohio manufacturer violated the NLRA when it suspended and discharged a non-union employee for complaining about working conditions. Meyer Tool, Inc., 366 N.L.R.B. No. 32 (March 9, 2018). The employer argued… Continue Reading
By Nelson Cary on Posted in Employee Discipline,NLRBEmployers firing employees for the content of their social media posts continue to do so at their own risk. An NLRB decision from last week provides a good reminder of this important point. An ambulance company, in two unrelated events, fired two employees for what they posted to Facebook. The first employee, in response to… Continue Reading
By Nelson Cary, Monica Oathout and Mike Griffaton on Posted in NLRBHeard 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
By Ben Shepler on Posted in NLRBLike it or not, the NLRB is at least consistent in its belief that employee participation in class or collective actions is protected concerted activity under the NLRA. In a 2-1 ruling, the Board in Philmar Care, LLC., 363 N.L.R.B. No. 57 (December 11, 2015) once again reaffirmed this belief and held that employers may… Continue Reading
By Nelson Cary on Posted in Employee Discipline,NLRB,Union InsigniaMore 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
By Nelson Cary and Ashley Manfull on Posted in Employee Discipline,NLRBRecently, 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
By Nelson Cary on Posted in Employee Discipline,NLRB,Union OrganizingConsider 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
By Nelson Cary and Ashley Manfull on Posted in Employee Discipline,NLRBLast 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
By Nelson Cary and Ashley Manfull on Posted in NLRBWhen employees take to Facebook with profanity-laced exchanges about their employer and job duties, odds are they will get fired. When the same employees go to the NLRB for protection under the NLRA, they cannot count on a receptive audience all the time. This much is demonstrated in an NLRB decision released last week. In… Continue Reading
By Nelson Cary on Posted in NLRBBy 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
By Nelson Cary on Posted in NLRBA 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
By Nelson Cary on Posted in NLRBEmployees 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
By Nelson Cary on Posted in NLRBEarlier 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
By Nelson Cary on Posted in NLRBAs 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
By Nelson Cary on Posted in NLRBBy 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
By Nelson Cary on Posted in NLRBYesterday, 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
By Nelson Cary on Posted in NLRBBy 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
By Nelson Cary on Posted in NLRBLast 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
By Nelson Cary on Posted in NLRBThe polls are closed, the votes are counted, and the results are in: President Obama will remain in office for another four years. This much, of course, is old news. But what the days since the election have provided is time to think about what it means for employers interested in labor law issues. Here… Continue Reading
By Nelson Cary on Posted in NLRBBy 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
By Nelson Cary on Posted in NLRBBy 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
By Nelson Cary on Posted in NLRBAn 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
By Nelson Cary on Posted in NLRBA 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
