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Articles Posted in NLRB Decisions

Since taking office in January of this year, the new presidential administration has made numerous changes to federal regulations intended to help New Jersey employees and others throughout the country. This includes adjustments by the National Labor Relations Board (NLRB) to its interpretation of federal labor law. The NLRB’s general counsel (GC), who is responsible for investigating alleged unfair labor cases and pursuing actions against employers, issued two memoranda in August 2021 outlining changes in procedures and priorities. One memorandum announces that the GC will be reviewing cases in which the NLRB overturned its own precedents in recent years. This could signal a new direction for the NLRB, which seems to have taken a pro-employer stance in many recent decisions. The second memorandum sets new enforcement priorities for the GC’s office.

Section 7 of the National Labor Relations Act protects employees’ right to organize themselves for the purpose of collective bargaining. This could include joining an existing union or forming a new one. The statute also protects workers who engage in “other concerted activities” related to organizing “or other mutual aid or protection.” Under § 8(a) of the statute, employers may not interfere with employees who are exercising any of these rights, nor may they discriminate or retaliate against employees who engage in protected or concerted activities.

Courts and the NLRB have interpreted “concerted activities” rather broadly at various times since the NLRA’s enactment in 1935. A 2019 decision by the NLRB, however, overruled an earlier decision that took an expansive view of “concerted activities.” The board stated at the time that it sought to overrule cases “that erroneously shield[] individual action” as opposed to concerted activities. In Memorandum GC 21-04, issued on August 12, 2021, the GC includes the 2019 decision and several others in a list of NLRB decisions addressing the definition of “concerted activity.” This is one of numerous areas of labor law where the GC intends to review the NLRB’s recent decisions.
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The economy is slowly recovering from the worst of the COVID-19 pandemic in New Jersey and all around the country. Millions of people lost their jobs in the early months of the pandemic in 2020. Congress allocated money to help employers keep paying their employees even if they were not open for business. At the same time, many employees voiced concerns about workplace safety, such as the availability of personal protective equipment (PPE) to help prevent the spread of the coronavirus. The National Labor Relations Board (NLRB) has tended to side with employers over workers seeking better protections against COVID. In June 2021, however, the NLRB ruled in favor of a former barista who alleged that her employer fired her in retaliation for advocating for workplace safety and other issues. Since the ruling was a default judgment, it is not clear to what extent it will affect other similar cases.

The NLRB adjudicates disputes under the National Labor Relations Act (NLRA). Section 7 of this statute protects workers’ rights to organize, form or join a labor union, and engage in other “concerted activities” related to self-organization or “mutual aid.” Section 8(a) identifies “unfair labor practices” by employers. It states that an employer may not “interfere with, restrain, or coerce employees” who are exercising rights protected under § 7. An employer also may not retaliate against an employee, such as by firing them, for asserting their legal rights.

The employer in the recent NLRB ruling operates several coffee shops. The COVID-19 pandemic forced it to close in early 2020, but it was able to reopen by late spring of that year. During that time period, several employees, including the head barista at one location, began corresponding on social media regarding concerns about their workplace. According to the NLRB’s ruling, their concerns involved “communication, wages, recall rights, and worker safety.” They began to circulate a petition through social media in May 2020.
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Under the National Labor Relations Act (NLRA), employers may not interfere with or restrain New Jersey employee activities or those occurring elsewhere in the country that involve self-organizing for the purpose of engaging in collective bargaining. Employees may join an existing labor union or form one of their own without retaliation from their employers. In order for the NLRA’s protections to apply, a worker must be an “employee” within the statute’s meaning. In 2016, National Labor Relations Board (NLRB) ruled that student employees at private colleges and universities in New Jersey and around the country are “employees” under the NLRA. A proposed rule first published in 2019 would have changed the definition to exclude student workers. The NLRB withdrew the proposed rule in March 2021, so the 2016 ruling remains in effect.

Section 2(3) of the NLRA, codified at 29 U.S.C. § 152(3), offers a rather circular definition of “employee.” It does not state what an employee is. Instead, it provides that an individual is not excluded from being an “employee” for various reasons, such as if they lost their job due to an “unfair labor practice” or “current labor dispute.” An NLRB regulation adopted in 1970, 29 C.F.R. § 103.1, states that the NLRB may assert jurisdiction over claims involving private colleges and universities with at least $1 million in gross annual revenue.

The NLRB has ruled several times since 1970 on the question of whether students who work for the colleges and universities they attend should be considered “employees” under the NLRA. For thirty years, it excluded student workers from the definition of “employee,” but in 2000 it ruled that graduate student assistants should be included. It reversed its own decision in 2004, finding that graduate student assistants were students before they were employees. In 2016, it not only reversed its 2004 decision, but also expanded the definition to include both graduate and undergraduate student assistants.
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Labor organizing has helped workers in New Jersey and around the country achieve better pay and improved working conditions for over a century. The National Labor Relations Act (NLRA) of 1935 protects workers’ right to engage in activities related to organizing and collective bargaining. The National Labor Relations Board (NLRB) is charged with certifying labor unions and adjudicating disputes under the NLRA. A decision issued in March 2021 by the NLRB could be of note for those involved in New Jersey employment law matters. The board decided to retain the “contract bar rule,” which limits the time for filing any petition that challenges a union’s status while a collective bargaining agreement (CBA) is in force.

Section 7 of the NLRA protects the rights of workers to “self-organization” and other labor organizing activities. Section 9(a) states that, once a majority of employees in a particular “unit,” have selected representatives for collective bargaining, they are the “exclusive representatives” for the employees in that unit. A union can lose its status as representative through a decertification petition filed with the NLRB. If at least thirty percent of the employees in a unit sign on to a petition to decertify the union, § 9(e) directs the NLRB to conduct a secret-ballot election of all employees to see if they favor decertification.

The contract-bar rule states that a petition to decertify a union cannot be filed during the first three years of a CBA, with two exceptions. First, a petition can be filed at any time if the CBA has a “union security clause” that “clearly” violates § 8(a)(3) of the NLRA. A CBA cannot require all of the employees in a unit to pay union dues unless it gives each employee a thirty-day grace period after their employment begins. A CBA that does not include the thirty-day period could be found invalid.
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Workers are often best able to negotiate with their employers for better pay, safer or improved working conditions, and other features of employment when they can do so as a group. Many employers prefer, however, that their employees not do this. Federal and New Jersey labor laws protect workers’ right to organize for various purposes, including advocacy on co-workers’ behalf. The National Labor Relations Board (NLRB) investigates and adjudicates alleged violations of workers’ rights under federal law. A recent investigation by the NLRB found that a major online retailer violated the rights of two workers who advocated for better working conditions during the COVID-19 pandemic in 2020. While it is not a formal decision by the Board, it could offer guidance to workers advocating for change at employers in New Jersey and around the country. If you have concerns regarding wage or labor practices at your place of employment, consider reaching out to a New Jersey employment lawyer to discuss your situation.

Section 7 of the National Labor Relations Act (NLRA), found at 29 U.S.C. § 157, guarantees the right of employees to “self-organization.” They can join an existing labor union or form their own. They can use collective bargaining procedures in negotiations with their employers. Finally, they can “engage in other concerted activities” related to “collective bargaining or other mutual aid or protection.” The term “concerted activities” can cover a broad range of acts.

Under § 8(a)(1) of the NLRA, id. at § 158(a)(1), an employer commits an “unfair labor practice” if they restrain or interfere with any activities that are protected by § 7. Section 8(a)(3) bars employers from discriminating against employees because of “membership in any labor organization.” New Jersey has even more extensive protections for employee organizing. See, e.g. N.J. Rev. Stat. § 34:13A-5.3, 34:13B-2.
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The National Labor Relations Board (NLRB) is charged with enforcing the federal statute that governs employees’ right to organize, engage in collective bargaining, and engage in other related activities. Its General Counsel (GC) investigates alleged violations of both employees’ and employers’ rights. The members of the Board itself adjudicate complaints filed by employees, employers, and labor unions. The recent change in presidential administrations brought some changes to positions at the NLRB, including a new acting GC. At the beginning of February 2021, the acting GC issued a memorandum, GC 21-02, rescinding several memoranda from the previous administration. At least one of the rescinded memos could impact New Jersey employee claims and affect similar cases throughout the country. GC 18-04 interpreted a 2017 decision by the Board regarding complaints about employer handbook policies.

Section 7 of the National Labor Relations Act (NLRA), codified at 29 U.S.C. § 157, protects employees’ “right to self-organization,” to form or join labor unions, to engage in collective bargaining with their employers, “and to engage in other concerted activities” directed at these rights. Under § 8(a) of the NLRA, id. at § 158(a), employers may not restrain employees from exercising their rights under the statute, nor may they discriminate or retaliate against employees who engage in protected activities or complain about alleged violations.

The 2017 decision by the NLRB mentioned earlier dealt with a “facially neutral rule” in an employee handbook that allegedly violated workers’ rights under § 7. The rule in question restricted the use of cameras on the employer’s property. This included cell phones with cameras. An administrative law judge (ALJ) ruled that the rule violated § 8(a)(1) of the NLRA, finding that “employees ‘would reasonably construe’ the rule to prohibit Section 7 activity.”

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The National Labor Relations Act (NLRA) protects the rights of employees to engage in activities related to organizing and collective bargaining. Workers alleging infringement of these rights can file a charge with the National Labor Relations Board (NLRB) and may wish to discuss their situation with a New Jersey employment attorney. In November 2019, the NLRB ruled on a charge alleging that a nonprofit organization’s executive director interfered with efforts to advocate on behalf of unpaid interns. The NLRB’s decision is notable for New Jersey workers in at least two ways. First, it demonstrates how the NLRA can protect workers before any significantly adverse actions, such as termination, occur. Second, the decision addresses the limits of the NLRA’s protection with regard to individuals who are not considered employees, such as unpaid interns.

Section 7 of the NLRA protects a wide range of activities related to “mutual aid or protection” of fellow employees. This includes specific actions like forming or joining a labor organization, as well as “other concerted activities.” Under § 8(a)(1) of the statute, employers may not “interfere with, restrain, or coerce employees” with regard to any of the rights protected by § 7. The NLRA does not provide a clear definition of “employee.” Prior decisions by the NLRB have held that “receiv[ing] or anticipat[ing]…economic compensation” is an essential element to be considered an “employee” under the statute.

The respondent employer is a nonprofit organization headquartered in New York City, with several offices elsewhere around the country. According to the NLRB’s decision, the respondent’s Washington, D.C. office usually has twenty-five employees and fifteen interns. The interns are typically students who volunteer to work for the organization for one semester, and who receive no compensation for their work.

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Late last year, the National Labor Relations Board (NLRB) issued an important ruling regarding restrictions on the use of company email accounts by employees for non-work purposes. This ruling reverses a 2014 NLRB decision, which held that employment policies restricting the use of company email for union organizing purposes presumptively violate the National Labor Relations Act (NLRA). It largely reinstates another NLRB ruling, this one from 2007, which allowed a ban on company email use. While the 2019 decision is a setback for employees’ workplace rights, it is not a complete return to the situation in 2007. The NLRB left some exceptions that would allow use of company email for union organizing purposes when employees have no other “reasonable means…to communicate with one another.” If you have questions concerning use of company email, contact a New Jersey employment attorney to learn more about how federal law may affect you.

The NLRA protects workers’ labor organizing rights and regulates the relationship between labor unions and employers. Section 7 of the statute, codified at 29 U.S.C. § 157, states that employees have the right to organize, to form or join labor unions, to engage in other “concerted activities” related to organizing, and to refrain from any of those activities. Section 8(a), found at 29 U.S.C. § 158(a), prohibits employers from interfering with those rights, restraining employees’ ability to exercise their rights, or discriminating against an employee for engaging in protected activities.

The 2007 NLRB decision held that “employees have no statutory right to use [an employer’s] e-mail system for Section 7 purposes.” The employer maintained a policy that “prohibit[ed] the use of e-mail for all ‘non-job-related solicitations.’” The Board held that employers’ property rights in their email systems allowed them to restrict non-work-related uses, including activities otherwise protected by the NLRA.

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The “sharing economy” has brought significant changes, both good and bad, to many aspects of the job market. Rideshare companies, for example, give drivers flexibility in terms of when and how long they work, but this has come with disadvantages. Some rideshare drivers have sought the protection of employment statutes in claims for unpaid wages and other matters. The question of whether they are employees, who are eligible for relief under those employment laws, or independent contractors remains largely unresolved. Various courts and administrative agencies have reached different conclusions. Two federal agencies, the National Labor Relations Board (NLRB) and the Department of Labor’s Wage and Hour Division (WHD), recently issued opinions holding that rideshare drivers are independent contractors. The bases for their conclusions differ from the legal standard used in New Jersey.

A worker in New Jersey is deemed an “employee,” and therefore not an independent contractor, unless their employer can satisfy the three-prong “ABC test.” First, the employer must demonstrate that they do not exercise control over how the person does their job, and that their agreement with the person indicates that they will not exercise such control. Next, they must show that the job performed by the person is not part of their usual business, or that the person does their work away from the employer’s place of business. Finally, they must establish that the person has their own “independently established trade, occupation, profession or business.” N.J. Rev. Stat. § 43:21-19(i)(6).

The New Jersey Supreme Court adopted the ABC test in a 2015 ruling. Several other states have also adopted it. The test generally applies to employee misclassification claims under state law. The 2015 case, for example, involved alleged violations of New Jersey’s wage and hour statutes. Claims under federal law may require separate analyses.
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A collective bargaining agreement (CBA) is a contract between a labor union, which is legally authorized to negotiate on the employees’ behalf, and the company that employs the union’s members. When ownership of a business changes hands, the new owner is only subject to all of the terms of an existing CBA if it is a “perfectly clear successor” to the previous owner. The National Labor Relations Board (NLRB) developed a set of guidelines, known as the “perfectly clear successor” (PCS) rule, based on a 1972 ruling by the U.S. Supreme Court. In April 2019, the NLRB issued a ruling that seems to limit the scope of the PCS rule.

The National Labor Relations Act (NLRA) prohibits employers from interfering with or restraining efforts by employees to organize for the purpose of collective bargaining, either by forming a union or joining an existing organization. Employers may not discriminate or retaliate against employees who exercise any of the rights protected by the statute. Once an employer and a union enter into a CBA, the employer commits an unlawful act if it refuses to negotiate with its employees’ authorized representative.

In 1972, the Supreme Court ruled that a successor employer must recognize a union’s authority when it has retained a majority of the union members as employees. This does not mean, however, that the successor employer is bound by the substantive terms of its predecessor’s CBA. The court held that a successor is not bound by the old CBA and is therefore free to set the initial terms for employment, unless “it is perfectly clear that the new employer plans to retain all of the employees in the unit.” NLRB v. Burns Int’l Security Services, Inc., 406 U.S. 272, 294-95 (1972).
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