Labor Relations Update

D.C. Circuit Remands Hotel Certification Decision and Reminds Board to Explain Its Reasoning

By Mark Theodore, Joshua Fox & Samantha Shear

December 2, 2020

On October 23, 2020, the D.C. Circuit granted Davidson Hotel Company’s petition for review of unfair labor practices resulting from its refusal to bargain with two newly-certified bargaining units, and denied the NLRB’s cross-petition for enforcement of an order to engage in collective bargaining with those units. The Circuit also remanded the underlying unit certification decision to the Board, noting that the NLRB failed to persuasively distinguish relevant precedent presented by the employer and otherwise…

Labor Relations Update

Handbook Civility Rules Aimed at Preventing Toxic Work Environments Found Lawful by NLRB’s Division of Advice

By Mark Theodore, Joshua Fox & Elizabeth Dailey

December 1, 2020

The NLRB’s Division of Advice recently released a long-awaited Advice Memorandum (originally issued in February 2019, Chipotle Mexican Grill, Case 28-CA-229134 (Feb. 22, 2019)) concerning the validity of two workplace rules under the Boeing standard: (1) a rule encouraging employees to “[b]e…objective” in their communications; and (2) a rule requiring employees to notify the employer of inquiries or requests for information from governmental entities. Advice concluded the rule concerning employee communications was a lawful workplace…

Labor Relations Update

NLRB: Employer Tweet Unlawfully Restrained Protected Activity

By Mark Theodore, Joshua Fox & Scott Tan

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…

Labor Relations Update

NLRB Establishes Pathway to Holding More In-Person Manual-Ballot Elections during the COVID-19 Pandemic

By Mark Theodore, Joshua Fox & Yonatan Grossman-Boder

November 10, 2020

As employers faced with a representation petition filed during the COVID-19 pandemic can attest, Regional Directors of the National Labor Relations Board have been incredibly reticent to hold in-person elections. Indeed, since April 1st, when the Board resumed processing representation petitions, approximately ninety percent (90%) of elections have been held by mail rather than in-person. This necessary paradigm shift flew in the face of the Board’s long-standing general policy to hold manual-ballot, in-person elections. However,…

Labor Relations Update

NLRB Seeks Comment: Rats, Banners and Neutrals, Oh My!

By Mark Theodore, Joshua Fox & Rachel Therese Gulotta

October 30, 2020

An age old question under the National Labor Relations Act is what constitutes “picketing”? By the Supreme Court’s definition, picketing is inherently coercive and may not be directed against a neutral employer. An issue that has vexed employers for the last several years has been the use of stationary protests, such as inflatable rats and banners, calling out neutral companies for doing business with the employer. For approximately 10 years, which in recent Board history…

Labor Relations Update

NLRB Advice Memorandum: Firing Employees Because of Discussions Related to Tip-Pooling Violates Section 8(a)(1)

By Mark Theodore, Joshua Fox & Heylee Bernstein

October 16, 2020

In an Advice Memorandum released Thursday, the NLRB’s Division of Advice concluded that employees who discussed an employer’s tip-pooling practices engaged in protected concerted activity, such that discharging the employees for this activity violated Section 8(a)(1) of the NLRA. Employees working at a steakhouse in New York City often complained about the restaurant’s tip-pooling system. Under the system, management counted and divided tips among employees regardless of the employees’ shift. The Advice Memorandum noted some…

Labor Relations Update

NLRB: Members Of Trade Group Are Not “Employees” Covered By The NLRA

By Mark Theodore, Joshua Fox & Jordan Simon

September 24, 2020

On September 11, 2020, a three-member National Labor Relations Board panel unanimously ruled that a trade group representing sign language interpreters did not violate Section 8(a)(1) of the Act by removing its members’ posts on its closed Facebook page. The posts, made by individual members of the trade group, discussed the interpreters’ work conditions and supported unionization. According to the Board, because the interpreters were not the organization’s employees and thus, not covered by the…

Labor Relations Update

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

By Steven Porzio, Joshua Fox, Dominique Kilmartin & Jordan Simon

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…

Labor Relations Update

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

By Mark Theodore, Joshua Fox & Dominique Kilmartin

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”…

Labor Relations Update

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

By Mark Theodore, Joshua Fox & 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…

Labor Relations Update

Blog Authors

D.C. Circuit Remands Hotel Certification Decision and Reminds Board to Explain Its Reasoning

Handbook Civility Rules Aimed at Preventing Toxic Work Environments Found Lawful by NLRB’s Division of Advice

NLRB: Employer Tweet Unlawfully Restrained Protected Activity

NLRB Establishes Pathway to Holding More In-Person Manual-Ballot Elections during the COVID-19 Pandemic

NLRB Seeks Comment: Rats, Banners and Neutrals, Oh My!

NLRB Advice Memorandum: Firing Employees Because of Discussions Related to Tip-Pooling Violates Section 8(a)(1)

NLRB: Members Of Trade Group Are Not “Employees” Covered By The NLRA

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

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

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

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