Tag Archives: Protected Concerted Activity

NLRB Has Republican Majority: Emanuel Confirmed By Senate

Management-side lawyer William Emanuel was confirmed late on September 25, 2017 by the United States Senate to fill the last vacant seat on the National Labor Relations Board. Republican Marvin Kaplan was confirmed on August 2, 2017.   According to Bloomberg BNA, the Senate voted along party lines, 49-47, in confirming Emanuel and giving the Board … Continue Reading

Discharge of Employee Who Protested Illegal Policy By Himself Ran Afoul of NLRA, Federal Appeals Court Rules

An employee who was discharged after protesting an admittedly illegal policy was entitled to reinstatement and back pay despite having acted on his own, the federal appeals court in New York has ruled, enforcing a National Labor Relations Board order. National Labor Relations Board v. Long Island Ass’n for AIDS Care, Inc., No. 16-2325 (2d … Continue Reading

Labor Law Lessons from Our Favorite Films: Dirty Dancing (Weingarten Rights – Nobody Puts Weingarten In The Corner)

As noted in our previous post about Dirty Dancing, as part of its investigation into thefts of guests’ property, the resort owner interviewed staff dance instructor, Johnny Castle (Johnny denies involvement in the burglaries), to determine whether he had an alibi for the evening when Moe Pressman’s wallet was stolen. We now know that Castle responded … Continue Reading

Labor Law Lessons from Our Favorite Films: Dirty Dancing

There are films with clear labor law undertones, such as On The Waterfront and Norma Rae. The National Labor Relations Act and its teachings, however, lurk in other pop culture examples. Thirty years ago, the romantic drama, Dirty Dancing premiered. The plot centers around the relationship between Baby (Frances) Housman (coincidentally, named after the first … Continue Reading

Management Labor Attorney Being Considered for NLRB General Counsel Nomination

Peter B. Robb, a management-side labor law attorney, reportedly is being considered to be the National Labor Relations Board’s next General Counsel. The four-year term for the current NLRB General Counsel, Democrat Richard F. Griffin, Jr., expires this November. Robb previously worked as an NLRB field attorney and as chief counsel to Republican NLRB Member … Continue Reading

Change is Coming: Management-Side Labor Attorney Emanuel Nominated to Labor Board

President Donald Trump has nominated management labor attorney William Emanuel to fill one of the two vacant seats on the five-member National Labor Relations Board. Trump previously had nominated attorney Marvin Kaplan, counsel to the Commissioner of the Occupational Safety and Health Review Commission, for the other vacant seat. If Kaplan and Emanuel, Republicans, are … Continue Reading

Labor Board Allows Evidence to Explain Employee Handbook Ban on Video Recording

The National Labor Relations Board has denied a motion for summary judgment by the NLRB’s General Counsel in a case involving Mercedes-Benz U.S. International Inc.’s maintenance of an employee handbook rule prohibiting the use of cameras and video recording devices without prior approval. The 2-1 decision allows MBUSI to attempt to prove that: (1) the … Continue Reading

President to Nominate Republican Attorneys to Fill Labor Board Vacancies

Attorneys Marvin Kaplan and William Emanuel will be nominated by President Donald J. Trump to fill the two openings on the five-member National Labor Relations Board, according to the Daily Labor Report. Trump plans to nominate Kaplan and Emanuel by June, following completion of their FBI background checks. If Kaplan and Emanuel are confirmed, the … Continue Reading

Solicitor General Reviewing Government’s Position in Class Action Waivers Cases

Last week, the Supreme Court extended the deadline for initial briefs from April 28, 2017 to June 9, 2017 in three consolidated cases raising the issue whether arbitration agreements between individual employees and their employers that bar the employees from pursuing work-related claims on a collective or class basis are lawful under the National Labor … Continue Reading

Miscimarra Named NLRB Chairman

The National Labor Relations Board has announced that Republican Philip A. Miscimarra has been named NLRB Chairman by President Donald J. Trump.  Miscimarra had been designated Acting Chairman by President Trump on January 23, 2017. Miscimarra has served as a Board Member since August 7, 2013, and is the sole Republican Member currently serving on the … Continue Reading

Short List of Possible Trump NLRB Candidates Reported

President Donald J. Trump has narrowed his list of candidates to fill the two open seats on the five-member National Labor Relations Board to Marvin Kaplan, William Emanuel, and Douglas Seaton, according to Bloomberg BNA. Emanuel and Seaton are labor attorneys and Kaplan is counsel to the Commissioner of the Occupational Safety and Health Review … Continue Reading

NLRB GC Instructs Regions to Hold on Class Action Waiver Cases Until Supreme Court Rules

The General Counsel of the National Labor Relations Board has instructed Regional Offices to hold in abeyance cases involving mandatory arbitration agreements with opt in or opt out clauses. Regions must do the same in cases where an employer argues that the class action waiver in its arbitration agreement is different than the one at … Continue Reading

NLRB General Counsel Concludes Division I Scholarship Football Players are Employees under Labor Law

Scholarship football players in Division I FBS private sector colleges and universities are employees under the National Labor Relations Act, National Labor Relations Board General Counsel Richard F. Griffin has concluded. Accordingly, he explained, the players have all of the rights and protections available to employees under the Act. Click here to read the full … Continue Reading

Non-Union, Specialty Lights Maker Must Return Work from Mexico, Federal Appeals Court Rules

The NLRB properly found a non-union employer unlawfully retaliated against striking employees and violated the National Labor Relations Act by transferring work from Illinois to Mexico, the federal appeals court in Chicago has ruled. Amglo Kemlite Labs., Inc. v. NLRB, 2016 U.S. App. LEXIS 15100 (7th Cir. Aug. 17, 2016). The Court enforced the Board’s … Continue Reading

NLRA Protection Accorded Class or “Collective” Action Brought By Single-Employee

The National Labor Relations Board has decided that “a single employee who files a lawsuit ostensibly on behalf of himself and other employees is engaged in protected concerted activity.” (Emphasis provided.) Beyoglu, 362 NLRB No. 152 (July 29, 2015). Marjan (Mario) Arsovski was discharged after he filed a Fair Labor Standards Act collective action lawsuit. … Continue Reading

NLRB Requires Employers to Let Employees Use Workplace Email Systems for Union and Concerted Activities, Overruling 2007 Decision

In a landmark and not-unexpected ruling, the National Labor Relations Board decided today to require employers to allow their employees to use company email systems for Section 7 (union organizing and protected concerted activity) purposes during nonworking time.  Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014). The decision overrules the Board’s 2007 Register Guard … Continue Reading

Employer’s Warning Violates NLRA, Board Rules

An employer’s verbal warning for “continued frivolous requests for information…and interfering with the operation of the business,” directed to a shop steward who made two  requests to the employer for information including payroll information, violated the National Labor Relations Act, according to the National Labor Relations Board. Dover Energy, Inc.,Blackmer Division, 361 NLRB No. 48 … Continue Reading

Firings for Facebook Comments Unlawful, NLRB Rules

An employer violated the National Labor Relations Act by discharging two employees because of their participation in a Facebook discussion about their employer’s State income tax withholding mistakes, by threatening employees with discharge for their Facebook activity, by questioning employees about that activity, and by informing employees they were being discharged because of their Facebook … Continue Reading

Employee’s Facebook ‘Like’ is Part of Concerted Activity: NLRB

An employee’s selection of the “Like” option under a former employee’s initial Facebook status update was “an expression of approval” of the initial status update it followed (and therefore part of concerted activity), but not of the entire topic of which the update was part as it existed at the time.  Therefore, the NLRB determined, … Continue Reading

Terminations Lawful for Statement Not Impugned by Discharged Employees’ Accompanying Protected Communication

The National Labor Relations Board’s Division of Advice has concluded an employer did not violate the National Labor Relations Act for terminating two workers for a statement about their pay and other working conditions in a survey posted online to third parties.  Varsity Brands, Inc., Case 15-CA-110683 (12-23-13).  It recommended the fired workers’ unfair labor … Continue Reading

ALJ Finds No Protected Employee Right to Record Workplace Conversations

While employees making audio or video recordings of others in the workplace have long concerned employers, companies usually refrain from banning employee recording, uneasy about potentially infringing on employees’ rights to engage in protected concerted activity.  A recent case illustrates the analysis the National Labor Relations Board uses to scrutinize a workplace policy that restricts … Continue Reading

NLRB Judge Says Employer’s Baseball Cap Logo Restriction Violates Employees’ Section 7 Rights

An employer’s policy prohibiting employees from wearing baseball caps other than the employer’s is an unlawful restriction on employees’ Section 7 activity, an NLRB Administrative Law Judge has decided.  Quad Graphics, Inc., 32-CA-062242 (July 31, 2013). Under the National Labor Relations Act, the wearing of union insignia by employees in most workplaces   generally is presumed … Continue Reading
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