National Labor Relations Board Changes its Mind (Again) – Reverts to Previous Rule on Disciplining Misconduct Occurring in Connection with Protected Activity

Jordan Dunham
Jordan Dunham
05/04/2023
It is no secret that the National Labor Relations Board’s (“NLRB” or the “Board”) General Counsel Abruzzo is pushing a pro-union/employee agenda.  She stated as much in 2021 when she released her 10-page memo to NLRB staff outlining that under her leadership, the NLRB would focus on reviewing the “numerous adjustments to the law, including a wide array of doctrinal shifts” that occurred under the NLRB’s prior leadership.  Don’t...
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New NLRB Joint Employer Rule Coming This Summer

Randi Klein Hyatt
Randi Klein Hyatt
04/19/2023
In September 2022, the National Labor Relations Board (NLRB) issued its proposed rule on the Standard for Determining Joint-Employer Status under the National Labor Relations Act (NLRA).  This rule, which is a return to the Obama-era standard, states entities are joint employers if they "share or codetermine those matters governing employees' essential terms and conditions of employment."  Significantly, under this rule, the authority alone to...
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ALJ Finds Employer Violated Federal Law By Reinstating Employee Subject To A Last Chance Agreement Containing A Broad Non-Disparagement Provision

Clifford Geiger
Clifford Geiger
04/13/2023
The recent case Challenge Mfg. Holdings, Inc., Case 07-CA-286573 (2023), demonstrates how some judges may apply the National Labor Relations Board’s recent decision in McLaren Macomb, 372 NLRB No. 58 (2023), which held that an overly broad non-disparagement provision in a severance agreement was unlawful under the National Labor Relations Act (the “Act”). The provision at issue in McLaren Macomb prohibited employees who accepted severance from...
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What to Expect When you are Expecting: Labor Pains

Darrell VanDeusen
Darrell VanDeusen
02/10/2023
The turn of the phrase “labor pains” when talking about union organizing is now an old, trite (and stupid, while meant to be humorous) expression.  But it’s one I heard used regularly when I was a baby lawyer in the mid-1980s.  K&S posted a number of blogs in 2022 regarding the new wave of union organizing.  Moreover,  a quick inquiry to your favorite search engine will show you that there is a resurgence in organizing.  It has not...
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You Quit? That’s An Unfair Labor Practice Says NLRB

Darrell VanDeusen
Darrell VanDeusen
12/29/2022
The National Labor Relations Board (NLRB) came out with a bunch of year-end decisions, some of which were blogged about by my friend and partner Eric Paltell on this site a couple of weeks ago.   Put gently, none of these decisions could be considered “employer-friendly.”  Here’s another one. On its last day before the winter break, the NLRB held, in a 2-1 decision, that an employer committed an unfair labor practice (ULP) by refusing to...
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NLRB Refuses to Set Aside Election Based on Failure to Provide Home Phone Numbers

Kollman & Saucier
Kollman & Saucier
12/21/2022
In a decision issued on the last day of Member Ring's term, the NLRB ruled that an employer's failure to provide the union with  home phone numbers for five employees did not warrant setting aside the employer's election victory.  In MVM, Inc., 372 NLRB No. 32, the Board held that omitting the numbers for only five of the 92 employees while providing cell phone numbers for all employees "substantially complied" with the voting list requirements...
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NLRB Expands Remedies Available for Unfair Labor Practice Charges

Kollman & Saucier
Kollman & Saucier
12/19/2022
On December 13, 2022, the National Labor Relations Board issued a decision  that will substantially expand the relief available to an employee who prevails in an unfair labor practice charge proceeding.  The Board's decision in Thrive, Inc., 372 NLRB No. 22, holds that the standard "make-whole" remedy for an employee harmed by an employer's unfair labor practice includes compensation for "all direct or foreseeable pecuniary harm" resulting from...
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T-Mobile Violated Labor Law With Company Union

Garrett Wozniak
Garrett Wozniak
11/28/2022
One way an employer may violate the National Labor Relations Act (NLRA) is to create a “company union.”  Under Section 8(a)(2) of the NLRA, it is an unfair labor practice for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.”  A labor organization is “any organization of any kind, or any agency or employee representation committee or plan,...
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NLRB General Counsel Issues Guidance on Employer Use of Electronic Surveillance

Kollman & Saucier
Kollman & Saucier
10/31/2022
On October 31, 2022, the General Counsel to the National Labor Relations Board, Jennifer Abruzzo, issued a memorandum on the legality of an employer's use of electronic surveillance and algorithm-driven management.  In Memorandum GC 23-02, the General Counsel announced her intention to seek a new legal framework to analyze whether the use of such tools in the workplace violates the National Labor Relations Act.  Over the past decade, employers...
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Running a Business? Having Someone to Call for Labor Advice is a Good Idea

Jordan Dunham
Jordan Dunham
10/24/2022
Things are really heating up between Apple, Inc. (“Apple”) and the Communication Workers of America, AFL-CIO (“CWA”).  The CWA has been campaigning at numerous Apple retail stores, attempting to gain a foothold in the sector.  Earlier this year, an Apple store in Towson, Maryland voted to unionize, becoming Apple’s first US unionized location.  That store’s employees are represented by the International Association of Machinists and...
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