Scabby the Rat Gets a Reprieve from NLRB

Vincent Jackson
Vincent Jackson
02/10/2021
Anyone who has ever passed by a labor protest is no doubt familiar with Scabby the Rat—a large inflatable balloon deployed by unions protesting an employer or contractor who uses non-union labor.   The rat balloons are usually 12 feet tall (sometimes larger), and are grotesque, featuring large teeth and a scabby stomach.  The National Labor Relations Board (NLRB), under former General  Counsel  Peter Robb, had sought to prohibit Scabby from...
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NLRB: “Salt Mine” for Employees Means ULP for Employer

Darrell VanDeusen
Darrell VanDeusen
11/27/2020
Unless you have been off the planet for the last four years, you’ve likely heard of The Federalist, the conservative online magazine “focused on culture, politics, and religion that publishes commentary on a wide variety of contemporary newsworthy and controversial topics.”  It’s a part of FDRLST Media, LLC, which also has websites, electronic newsletters and satellite radio shows.  The publisher of The Federalist is Ben Domenech.   As...
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Zoom Outage Not Grounds to Set Aside NLRB Election

Eric Paltell
Eric Paltell
11/17/2020
For those of us who practice labor and employment law, the COVID-19 pandemic has normalized both the use of Zoom and mail ballot union representation elections.  These phenomena  have inherent risks, such as technical malfunctions and voter irregularities.  Both of these concerns surfaced in a recent NLRB case when a  Zoom link failed during  the counting of mail ballots. Stericycle, Inc.  and International Association of Sheet Metal, Air,...
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NLRB Outlines Covid-19 Factors Warranting Mail-Ballot Elections

Andrea Murphy
Andrea Murphy
11/12/2020
Mail ballots.  Those two little words have made big headlines lately, even in the world of labor law.  As the Covid-19 pandemic continues to roll on, the National Labor Relations Board (Board) issued a decision outlining six specific factors that Regional Directors (RDs) should consider in deciding whether to hold mail-ballot elections or manual elections.  Aspirus Keweenaw, Case 18-RC-263185 (11/9/20).     The underlying facts involve the...
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NLRB Proposes Changes To Excelsior Lists

Clifford Geiger
Clifford Geiger
07/29/2020
In Excelsior Underwear, 156 NLRB 1236 (1966), the National Labor Relations Board (NLRB) first required employers to provide unions with the names and home addresses of eligible voters in advance of representation elections. This list of voters became known as an Excelsior list.  In 2014, the NLRB expanded the information required to be on Excelsior lists to include all available personal email addresses and cell phone numbers. On Tuesday, July 29,...
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Wright Line is Baaaaaaaack. No More Cussin’ Folks.

Darrell VanDeusen
Darrell VanDeusen
07/22/2020
One of the first cases I worked on as a baby lawyer involved a guy who was fired for cussing out his supervisor.  The employee’s union claimed that it was really because of his protected union activity; he was simply disagreeing with his boss.  Colorfully.  Very colorfully.  I was tasked to figure out whether the company should rescind the termination.  The answer was no:  the “Wright Line” test (based on the NLRB’s decision in Wright...
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NLRB Ordered To Consider NLRA’s Conflict With Anti-Discrimination Laws

Garrett Wozniak
Garrett Wozniak
01/06/2020
Section 7 of the National Labor Relations Act gives employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Section 8(a)(1) of the Act protects these rights by making it an unfair labor practice for an employer “to...
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NLRB Reverses Course on Legality of Investigation Gag Orders

Clifford Geiger
Clifford Geiger
12/19/2019
Employers have a legitimate interest in investigating allegations of employee misconduct.  It seems obvious that a certain amount of confidentiality is required to maintain the integrity of those workplace investigations.  Otherwise, investigations may be hindered.  Parties may be coached or discuss ahead of time what they will say, accusers may openly discuss complaints and try to influence others to provide corroboration, employees...
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Determining How Rude An Employee Can Be to the Boss

Frank Kollman
Frank Kollman
10/29/2019
The National Labor Relations Board recently affirmed a decision that an employee's rudeness and disrespect toward his supervisor (in this case the president of the company) did not necessarily warrant termination if the employee is exercising statutory rights.  Blue Earth Digital Printing, Inc., 31-CA-133542 (2019).  The employee, after a somewhat heated exchange with the employer, said:  “I don’t think that you really care about our jobs or...
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NLRB To Review Successor Rule on Bargaining

Frank Kollman
Frank Kollman
10/25/2019
When a company purchases another company that has a unionized workforce, there are various rules developed by the National Labor Relations Board to decide the status of the union following the purchase.  Generally, the purchaser is not obligated to adopt the Union contract, and it can set whatever rates and benefits it wants for any employees it hires. The purchaser, however, may be obligated to recognize and bargain for a new contract with the...
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