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National Labor Relations Board General Counsel Jennifer Abruzzo recently asked the National Labor Relations Board (“Board”) to overrule its decision in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019) (“Rio All-Suites”). The Rio All-Suites Board overruled the Board’s prior decision in Purple Communications, Inc., 361 NLRB 1050 (2014) (“Purple Communications”), which in turn overruled the Board’s decision in Register Guard, 351 NLRB 1110 (2007). All three cases deal with whether the National Labor Relations Act (“Act”) gives employees the right to use an employer’s email systems to engage in union and other protected concerted activities.
Continue Reading The NLRB is Reviewing Union Access to Employer Email and Electronic Communications Systems

On March 22, 2023, the General Counsel of the National Labor Relations Board (NLRB or the “Board”), Jennifer Abruzzo, issued a memorandum providing guidance in light of the NLRB’s recent decision in McLaren Macomb, 372 NLRB No. 58 (2023). As previously reported, the Board in McLaren Macomb held that overly broad non-disclosure and non-disparagement provisions in severance agreements violate employee rights under the National Labor Relations Act (NLRA or the “Act”). The General Counsel’s memorandum—which is directed to the Board’s regional offices over which she exercises supervisory authority—seeks to clarify the scope of the McLaren Macomb decision, including: the types of provisions that may violate the NLRA; language that may be acceptable in light of the decision; whether the decision applies retroactively to previously executed severance agreements; and the potential applicability of the decision to supervisors. The memorandum is not legally binding, but it does give employers a more informed roadmap for how the Board initially will handle unfair labor practice (“ULP”) charges challenging severance agreements.…

Continue Reading NLRB General Counsel Issues Guidance Memorandum Regarding Severance Agreements

The Court of Appeals for the D.C. Circuit has recently revived a portion of an election rule promulgated by the NLRB during the Trump administration. In 2019, the NLRB promulgated an election rule which modified several “quickie” election procedures established by the NLRB during the Obama administration in 2014. The 2014 Rule sped up the union election timeframe, and the 2019 Rule aimed to address criticisms that the timeframe was too short a time in which to meet the various new obligations triggered by the filing of a union representation petition while also adequately preparing for the representation hearing. The AFL-CIO sued in 2020 to block the 2019 Rule. …
Continue Reading U.S. Appeals Court Partially Revives Trump-Era Union Election Rule

The National Labor Relations Board (NLRB) and the Department of Justice (DOJ) recently announced a new partnership, which, in their words, will “better protect free and fair labor markets and ensure that workers can freely exercise their rights under the National Labor Relations Act.”  Through a memorandum of understanding (MOU), the agencies have agreed to collaborate with the stated aim of advancing workers’ rights to obtain fair market compensation and to freely exercise their legal rights under labor laws.
Continue Reading NLRB & DOJ Announce New Partnership

The National Labor Relations Board (Board) announced on June 21, 2022, that it intends to engage in rulemaking with respect to several subjects. One of those which was revealed to be a subject of rulemaking was joint-employer status under the National Labor Relations Act (Act).…

Continue Reading The National Labor Relations Board is Engaging in Rulemaking, Again

On April 11, 2022, the National Labor Relations Board’s General Counsel urged the Board to revive the long-abandoned Joy Silk doctrine, which has not been in effect in nearly 50 fifty years. …
Continue Reading NLRB General Counsel Urges The NLRB To Revive The Joy Silk Doctrine For Union Elections

On November 10, 2021, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo issued a memorandum outlining employers’ bargaining obligations with respect to compliance with OSHA’s Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”).
Continue Reading NLRB General Counsel Issues Memo Regarding Bargaining Obligations for Vaccine Mandate

A recent memorandum released by National Labor Relations Board (Board) General Counsel Jennifer Abruzzo previews a Biden-appointed Board’s agenda and priorities. In the August 12, 2021 “Mandatory Submission to Advice” memorandum, General Counsel Abruzzo identifies three types of cases and subject matter areas that the General Counsel would like to “carefully examine.” These three types of cases and subject matter areas include: (1) cases where the Trump-appointed Board overruled past Board precedent, (2) “other initiatives and areas that, while not necessarily the subject of a more recent Board decision, are nevertheless ones [the General Counsel] would like to carefully examine,” and (3) “casehandling matters traditionally submitted to Advice.” Accordingly, General Counsel Abruzzo has instructed the Board’s Regional Directors to seek advice for cases that fall into these three categories.
Continue Reading Memo from NLRB General Counsel Signals Upcoming Shifts in Board Precedent

It is early in 2021 and already the NLRB has before it ALJ determinations that employee handbook policies conflict with the NLRA. When analyzing employee handbook policies, the Board generally applies the Boeing test, whereby a handbook policy’s potential interference with employee rights under the NLRA is balanced against an employer’s legitimate justifications for the policy, when viewing the policy from the employee’s perspective. While the NLRA and the Boeing test apply to a number of employee handbook policies, confidentiality, social media, and solicitation/distribution policies are especially vulnerable.
Continue Reading It’s Time Again for Employers to Ensure Handbook Compliance

With the ushering in of a new administration, several changes have quickly taken place at the National Labor Relations Board. Within hours of taking office, the Biden administration removed Trump appointee NLRB General Counsel Peter Robb and replaced him with interim General Counsel Peter Ohr.
Continue Reading Changes Afoot at the NLRB Under the New Administration