Archives: NLRB

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NLRB Plans to Push for Protection of Partial Strikes

On October 3, the National Labor and Relations Board (NRLB) Office of the General Counsel (OGC) issued a Memorandum from the Division of Operations-Management to all Regional Directors, Officers-In-Charge, and Resident Officers.  This Memo (Memorandum OM 17-02) reveals an aggressive new position from the OGC, one which attempts to overturn decades of Board precedent. For … Continue Reading

Weingarten Confusion

In most situations the NLRB’s long established Weingarten doctrine can be applied in a fairly straight-forward fashion.  But I still get questions regarding the interplay of drug and alcohol testing when it comes to Weingarten.  This is probably due to the fact that the Ralphs Grocery Company decision, which issued in 2014, is a relatively … Continue Reading

Nerds Win, Jocks Lose

Once again I shake my head at the NLRB’s analysis in their application of the National Labor Relations Act. In the high profile Northwestern University case which issued in August of last year, the Board found that it would not assert jurisdiction over the grant-in-aid scholarship football players of Northwestern University, citing in particular the … Continue Reading

NLRB Successful in Obtaining Subpoena Enforcement as to Joint Employer Issue in McDonalds Franchise Dispute

Many of us have been watching the ongoing battle taking place in Region 2 of the NLRB as to the consolidated unfair labor practice proceedings that are taking place with respect to McDonalds and various McDonalds’ franchisees. The hearing that was originally scheduled to begin on March 30th of this year has been postponed repeatedly … Continue Reading

And Around And Around We Go

In the NLRB’s never ending expansion of its jurisdiction, it has agreed to reconsider whether graduate teaching assistants at private non-profit universities are entitled to collective bargaining under the National Labor Relations Act. As anyone who has been involved in education labor law for any period of time knows, the Board has gone back and … Continue Reading

Joint Employer Relationship . . . Not This Time

In the first reported decision since the Board’s holding in Browning-Ferris, the Regional Director for Region 5 of the NLRB found that, with respect to the particular facts in a case before that Region, the union failed to establish a joint employer relationship. The case arose in the context of a staffing agency, GJW, providing … Continue Reading

D.R. Horton Decision Controls Once Again in the Fifth Circuit

In the case of Murphy Oil USA, Inc. v NLRB, the Fifth Circuit recently reaffirmed its position allowing class waivers in arbitration agreements, contrary to the NLRB’s position in D.R. Horton. Obviously, given the fact that this same Court of Appeals recently denied enforcement of the Board’s Order in D.R. Horton on this same subject … Continue Reading

No Purple Communications Exception Applied to Healthcare Providers

In an August 27, 2015 decision, a majority of the Board found that the Purple Communications standard, with respect to an employer’s email system, would apply without exception to healthcare providers and, in particular, for acute care hospitals. Contrary to the cogent arguments put forth by member Johnson in his dissent, the majority found that … Continue Reading

More Changes by the NLRB . . . Joint Employer and Dues Check-Off Doctrines . . . Why?

The NLRB continues to overrule long-standing case law in key areas. Last week, in particular, two major determinations of the NLRB issued which will no doubt be tested before the courts of appeal. One, involving the Joint Employer Doctrine for which this Firm issued a client alert, can be reviewed here; the second, involved Dues … Continue Reading

Right to Work Translated to Right to Pay

With the recent change in events whereby, state by state, legislation is being passed to implement right to work laws, labor unions are responding by promoting, through the NLRB, a “fair share policy” requiring non-member bargaining unit employees pay a grievance processing fee. Indeed, the NLRB has issued a Notice and Invitation To File Briefs … Continue Reading

No Good Deed…

As many of you know, there has been a rash of data breaches with various entities in recent years with the Post Service being among those impacted. An interesting twist of this whole drama is the fact that when the breach took place with respect to the Postal Service, they acted quickly, in an attempt … Continue Reading

More Micro Management by the NLRB

The General Counsel of the National Labor Relations Board (“NLRB”) recently issued a 30 page report summarizing its position on employer work rules (such as, most commonly, employee handbooks) and providing examples of what does and does not have a “chilling effect” on possible concerted (i.e., potential union) activity as defined by Section 7 of … Continue Reading

Search First, Ask Questions Later

A recent Advice Memorandum from the NLRB’s Office of the General Counsel suggests that a worker’s right to Union representation during an investigatory interview attaches to a search conducted in conjunction with such an interview only if the worker knows about the search. In this case, Southwestern Bell Telephone Company interviewed an employee as part … Continue Reading

Higher Education A Hotspot For Union Organizing

Adjunct Instructors Given past restrictions by rulings from the Supreme Court and the NLRB, union organizing in higher education simply has not been very effective. One of the primary hurdles for most unions in the education arena has been the managerial status of full-time faculty, which would exempt them from coverage under the National Labor … Continue Reading

Don’t Fix It If It’s Not Broken

Well once again the NLRB is attempting to change the rules of the game when it comes to union organizing.  They recently announced new regulations in the election process which is already subject to litigation in the courts through various employer associations.  The current administration, with assistance from the various trade unions, has stated over … Continue Reading

Union Organizing Via Email

Before the advent of the digital age, when there was an organizing campaign afoot, most employers would be told by their legal counsel to put their rolodex under lock and key, and to review their standard no solicitation/no distribution policies in an effort to slow down organizing attempts in their workplace.  Obviously much of this … Continue Reading

Joint Employer Part Deux

The recent decision of the General Counsel of the NLRB to expand ULP liability to McDonalds, under a joint employer theory, should not come as a surprise to anyone.  As some may recall, the NLRB recently requested briefing on the issue of joint employer status in the organizing context as previously noted by this blog.  … Continue Reading


After reviewing the most recent decisions by the NLRB with respect to the retail industry and the application of Specialty Healthcare to that industry, all I can say is – thank you Harry.  Specialty Healthcare reversed many long standing principles of what is an appropriate bargaining unit.  Fundamentally, the decision should turn on what is best in … Continue Reading

Do You Take Profanity With Your Coffee? The NLRB Says You Should

Earlier this week the National Labor Relations Board issued a decision finding Starbucks violated the National Labor Relations Act when it terminated an employee who uttered profanities at a Starbucks manager in the presence of customers.  This was the employee’s second profanity (and presumably espresso) fueled tirade directed toward a Starbucks manager at the Manhattan … Continue Reading