Labor Relations Update

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Board Invites Briefing on Potentially Overturning “Johnnie’s Poultry” Standard for Questioning of Employees About Putative Protected Activity

March 2, 2021

On Monday, the Board voted 3-1 to solicit public briefing on whether it should overrule the Johnnie’s Poultry Co., 146 NLRB 770 (1964) safeguards employees must receive if they are questioned by employers about their own or another employees’ potentially protected concerted activity. Those safeguards include requiring the following: The employer must communicate to the employee the purpose of the questioning, assure the employee that no reprisal will take place, and obtain the employee’s participation…

Labor Relations Update

Recent Labor Victories for Adjunct Professors Signal Likely Uptick in Contingent Faculty Organizing

By Paul Salvatore, Steven Porzio & Elizabeth Dailey

February 26, 2021

Recently, adjunct professors at Elon University and Ithaca College won victories before the NLRB and an American Arbitration Association arbitrator, respectively, that further bolster the position that adjunct, or contingent, faculty members are “employees” as defined by the NLRA. Moreover, it also suggests that there will likely be a surge of new organizing activity amongst adjuncts in the future. Non-Tenure Track Faculty at Elon University In Elon University, 370 NLRB No. 91 (2021), the…

Labor Relations Update

NLRB: Initial Burden of Union Animus Met Largely by Timing of Employer’s Discharge of Employee

By Mark Theodore, Joshua Fox & Michelle Lappen

February 24, 2021

It is an unfair labor practice for an employer to retaliate against (1) union supporters pursuant to Section 8(a)(3) of the National Labor Relations Act (the “Act”), and (2) employees for filing a complaint with the National Labor Relations Board, testifying in a Board proceeding, or otherwise utilizing the Board’s processes, under Section 8(a)(4). Both require an analysis of the employer’s motivation. But, does an employer violate both sections of the Act under the same…

Labor Relations Update

BREAKING: President Biden Nominates Former Deputy General Counsel Jennifer Abruzzo for NLRB General Counsel

By Mark Theodore, Joshua Fox & Michelle Lappen

February 17, 2021

President Biden nominated Jennifer Abruzzo, Special Counsel for Strategic Initiatives for the Communications Workers of America, to be General Counsel of the National Labor Relations Board. Abruzzo was a Board veteran with more than two decades at the agency before becoming the union’s point person on NLRB issues. She was NLRB Deputy General Counsel and then Acting General Counsel before former General Counsel Peter Robb was confirmed by the Senate. According to the White House…

Labor Relations Update

No “Finite Fellows” in the Bargaining Unit – the Board Weighs in on Temporary Workers

By Mark Theodore, Joshua Fox & Dominique Kilmartin

February 17, 2021

When it comes to fellowship—and collective bargaining—it looks like “fellows” aren’t treated the same as their permanent status co-workers. In Phoenix News Times, LLC and The Newsguild–CWA, 370 NLRB No. 84 (Feb. 10, 2021), the National Labor Relations Board (the “Board” or “NLRB”) found that workers employed at a Phoenix newspaper in a fellowship program of finite duration were temporary workers who could not be included in a bargaining unit. Phoenix News and the…

Labor Relations Update

NLRB Acting General Counsel Strikes Again, Directs Agency to Withdraw Complaints Attacking Neutrality Agreements

By Mark Theodore, Joshua Fox & Dominique Kilmartin

February 3, 2021

As we recently reported, National Labor Relations Board Acting General Counsel Peter Sung Ohr recently gave us a peek behind the curtain at his prosecutorial priorities as General Counsel when he rolled back a number of General Counsel Memoranda issued by his predecessor, Peter Robb. Consistent with that roll back, Ohr recently directed the agency to withdraw complaints attacking union neutrality agreements, which were issued at Robb’s direction in an attempt to overturn Board…

Labor Relations Update

NLRB Acting General Counsel Rolls Back Guidance from Prior Administration

By Mark Theodore, Michael Lebowich, Joshua Fox & Alex Downie

February 2, 2021

On February 1, National Labor Relations Board (“NLRB”) Acting General Counsel Peter Sung Ohr rescinded a slew of General Counsel Memos issued by his predecessor, Peter Robb. On February 2, Ohr continued his actions by rolling back two Operations Management memos that were also issued during Robb’s term. Ohr’s actions come one week after he was appointed to the post by President Biden following the unprecedented firings of Robb and NLRB Deputy General Counsel Alice …

Labor Relations Update

NLRB Sees First Challenge to the Authority of Acting NLRB General Counsel’s to Process Unfair Labor Practice Cases after Recent Shakeup

By Michael Lebowich, Joshua Fox & Samantha Shear

January 28, 2021

In the first known of its kind objection to an ongoing NLRB proceeding, an employer has urged the NLRB to dismiss an unfair labor charge against it, arguing that the agency is unable to prosecute the matter, in light of President Biden’s unprecedented firing of then-General Counsel Peter Robb and Deputy GC Alice Stock, and appointment of Peter Sung as Acting General Counsel. (Discussed in our earlier blog postings here, here and here.)…

Labor Relations Update

After Unprecedented Firings of General Counsel and Deputy General Counsel, President Biden Names Peter Sung Ohr Acting General Counsel of the NLRB

By Mark Theodore, Michael Lebowich, Joshua Fox, Samantha Shear & Heylee Bernstein

January 25, 2021

President Biden named Peter Sung Ohr as Acting General Counsel of the National Labor Relations Board today. Ohr is a career employee of the NLRB, having served as a Field Attorney, Deputy Assistant General Counsel in the NLRB’s Division of Operations-Management, and as Regional Director of the Board’s Chicago Regional Office. Biden’s action comes after firing NLRB General Counsel Robb and naming Member Lauren McFerran, the lone Democratic member of the Board, as the…

Labor Relations Update

BREAKING: President Biden Continues NLRB Shake-Up By Firing Acting NLRB GC

By Mark Theodore, Michael Lebowich, Joshua Fox, Samantha Shear & Heylee Bernstein

January 21, 2021

One day after a standoff between President Biden and NLRB General Counsel Peter Robb resulted in his unprecedented termination, President Biden fired the NLRB’s second-ranked attorney, NLRB Deputy General Counsel Alice Stock, according to a Bloomberg report. Stock would have served as Acting NLRB General Counsel after Robb’s termination on January 20th. As of this posting, it is not clear who will be appointed to serve as Acting General Counsel. The Senate must confirm…

Labor Relations Update

Blog Authors

Board Invites Briefing on Potentially Overturning “Johnnie’s Poultry” Standard for Questioning of Employees About Putative Protected Activity

Recent Labor Victories for Adjunct Professors Signal Likely Uptick in Contingent Faculty Organizing

NLRB: Initial Burden of Union Animus Met Largely by Timing of Employer’s Discharge of Employee

BREAKING: President Biden Nominates Former Deputy General Counsel Jennifer Abruzzo for NLRB General Counsel

No “Finite Fellows” in the Bargaining Unit – the Board Weighs in on Temporary Workers

NLRB Acting General Counsel Strikes Again, Directs Agency to Withdraw Complaints Attacking Neutrality Agreements

NLRB Acting General Counsel Rolls Back Guidance from Prior Administration

NLRB Sees First Challenge to the Authority of Acting NLRB General Counsel’s to Process Unfair Labor Practice Cases after Recent Shakeup

After Unprecedented Firings of General Counsel and Deputy General Counsel, President Biden Names Peter Sung Ohr Acting General Counsel of the NLRB

BREAKING: President Biden Continues NLRB Shake-Up By Firing Acting NLRB GC

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