Articles Posted in NLRB Decisions

The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to organizing and collective bargaining. The statute prohibits employers from interfering with employees who are exercising their rights, or from coercing them against such activities. New Jersey employment laws provide some protections for labor organizing, but much of the work happens at the federal level. The National Labor Relations Board (NLRB) has the authority to investigate and adjudicate alleged NLRA violations. In April 2022, the General Counsel (GC) of the NLRB issued a memo calling on the NLRB to challenge meetings held by employers to address labor organizing activities, which employees are required to attend. The GC’s position would require the NLRB to reverse a seven-decade-old precedent allowing these types of meetings.

Employees have the right to “self-organization,” to join a union or form their own, and to select representatives to engage in collective bargaining with their employers. They also have the right to refrain from engaging in these types of activities. Employers may not “interfere with, restrain, or coerce employees” with regard to any of these rights. They may not discriminate against employees based on participation in protected activities, nor may they retaliate against workers who engage in acts protected by the NLRA.

In 1948, the NLRB issued a decision regarding an employer that required employees to attend a meeting, held during work hours, at which several managers gave speeches discouraging union organizing or membership. A Trial Examiner had held that the “compulsory” nature of the meeting violated the NLRA’s ban on coercion by employers. The NLRB disagreed. It held that the employer’s actions were not unlawful under the NLRA based on the “totality of the circumstances.” This decision has functioned as a precedent for seventy-four years in cases challenging mandatory employee meetings in which employers address organizing activities.

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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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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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