“Retweet”: Fifth Circuit Takes Up Free Speech Under NLRA

Kollman & Saucier
Kollman & Saucier
02/02/2024
It can be tempting to freely air thoughts and grievances on your cozy corner of the Internet, but lest we forget “the Internet is forever.”  That’s true if you are an ordinary person or the richest person in the world. Last week the full Fifth Circuit reheard Tesla, Inc.’s appeal from the NLRB decision made in 2021.  The Fifth Circuit’s decision in this matter has broad implications for the First Amendment rights of employers. The issue...
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Big Changes on the Horizon for College Sports?

Kollman & Saucier
Kollman & Saucier
01/23/2024
Charlie Baker’s tenure as NCAA President, being the first person to hold the office without first serving as an athletic director or college president, was always certain to bring a big shakeup to the college sports landscape. But change may be closer than many expected. The NCAA’s Division I (DI) Board of Directors assigned a recent revolutionary proposal, written by Baker, to the DI Council for evaluation. Although a small step in the NCAA’s...
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Accidental Disclosure of Salary Information Leads to Unfair Labor Practice

Kollman & Saucier
Kollman & Saucier
01/12/2024
Section 8(a)(1) of the National Labor Relations Act (the “Act”) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the Act. Section 7 guarantees employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, which would include employees working together to seek higher...
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Starbucks Forgot To Engage In Effects/Impact Bargaining, Now The NLRB Wants It To Reopen Stores

Kollman & Saucier
Kollman & Saucier
12/18/2023
To call Starbucks’ relationship with Starbucks Workers United union (Workers United) strained is an understatement.  The relationship began in December 2021 when Workers United’s campaign in Buffalo, NY resulted in the first unionized Starbucks store.  Since then, workers at over 400 Starbucks stores have voted to unionize nationally, many represented by Workers United.  Hundreds of unfair labor practice charges have also been filed on both...
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Is The Cemex Doctrine Is Here to Stay?

Mathew Moldawer
Mathew Moldawer
11/20/2023
The National Labor Relations Board (NLRB) has taken two affirmative steps to cement the Cemex doctrine into current labor law.  First, the NLRB Office of General Counsel, headed by Jennifer A. Abruzzo, issued Memorandum GC 24-01, Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific LLC.  Abruzzo stated in the guidance that “the Cemex Board took issue with the prior focus on the potential impact...
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Joint-Employer Rule Faces Early Legal Hurdle

Mathew Moldawer
Mathew Moldawer
11/16/2023
In September 2022, the National Labor Relations Board (NLRB) proposed a new rule to determine joint-employer status.  The new rule, adopted in October 2023, will take effect on December 26, 2023, and be applied prospectively.[1] One of the more controversial aspects of the new rule is that it removes the requirement that a putative employer actually exercise control over those essential terms and conditions of employment.[2]  In fact, an employer...
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NLRB Issues New Joint Employer Rule

The National Labor Relations Board (NLRB) released today its Final Rule regarding the Standard for Determining Joint-Employer Status under the National Labor Relations Act (NLRA).  The NLRB press release states: Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and...
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Employer’s Failure to Bargain with Union Proves Costly

Mathew Moldawer
Mathew Moldawer
10/05/2023
The National Labor Relations Board (NLRB) has ordered a hospital in Puerto Rico to rehire and provide back pay to eleven maintenance employees who it deemed were illegally terminated.  The September 30, 2023 decision from the three-member panel found that the employer, Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras violated Sections 8(a)(5) and (1) by its decision to subcontract the services performed by the Environmental Control...
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And So The Pendulum Swings: NLRB Revives Joy Silk From The Ashes

Mathew Moldawer
Mathew Moldawer
08/29/2023
The NLRB’s democratic majority struck a big win for unions by reviving the precedent set in the 1949 NLRB decision, In re Joy Silk Mills, Inc., 85 N.L.R.B. 1263 (1949).   Using Cemex Construction Materials Pacific, LLC as their torpedo, the NLRB has inflicted a blow to employers facing unionization efforts. The employees at issue were approximately 366 ready-mix cement truck drivers and driver trainers.  The drivers and trainers showed support...
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‘Captive Audience’ Memo from NLRB General Counsel Survives First Legal Battle

Mathew Moldawer
Mathew Moldawer
08/17/2023
Since the decision in Babcock v. Wilcox Co., 77 NLRB 577 (1948), the NLRB has permitted captive audience meetings. Under the captive audience doctrine and Section 8(c) of the NLRA, employers may hold mandatory employee meetings and speak to their employees about unionization so long as the employer does not threaten, punish, or promise benefits to the employees. Captive audience meetings are one of the few remaining arrows in management’s quiver...
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