Articles Posted in NLRB Decisions

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 At least one of the rescinded memos could impact New Jersey employee claims and affect similar cases throughout the country.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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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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The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to labor organizing. The statute established the National Labor Relations Board (NLRB) to investigate and adjudicate alleged violations. Union organizing can now take place both online and in real life, and the NLRB regularly considers questions involving communications technologies like email. Its rulings can affect not just New Jersey employment law but workers in New Jersey and all over the country. In 2007, the NLRB ruled that employers can place restrictions on employees’ use of company email for non-work purposes, even if it might restrict employees’ ability to engage in NLRA-protected activities. It overturned that decision in 2014, but now the NLRB is asking the public to file briefs addressing whether it should return to the standard it established in 2007.

Section 7 identifies workers’ “right to self-organization,” and to engage in activities related to “bargain[ing] collectively through representatives of their own choosing.” 29 U.S.C. § 157. An employer commits an “unfair labor practice” under § 8 of the NLRA if it “interfere[s] with, restrain[s], or coerce[s]” an employee attempting to exercise a protected right. Id. at § 158(a)(1). Congress enacted the NLRA in 1935, and it last amended § 7 in 1947. The nature of union organizing has changed in many ways since that time, and the job of interpreting § 7 in light of new technologies has largely fallen on the NLRB.

In 2007, the NLRB ruled that “employees have no statutory right to use the [employer’s] e-mail system for Section 7 purposes.” The Guard Publishing Co. d/b/a The Register-Guard, et al, 351 NLRB 1110 (2007). The employer in that case, a newspaper, installed a computer system in 1996 that provided email accounts for many of the employees. It maintained a policy prohibiting employees from using their email accounts for “non-job-related solicitations.” Id. at 1111. An employee alleged violations of § 7 after the employer issued several written warnings to her about using her company email account to send notices about union activities. The NLRB affirmed an administrative law judge’s (ALJ’s) 2002 ruling that the employer’s policy did not violate § 8, but that the employer violated § 8 by enforcing the policy in a discriminatory manner.
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New Jersey labor laws protect the rights of workers to organize for the purpose of collectively asserting their workplace rights, such as by forming a union to engage in collective bargaining with their employer’s management. At the federal level, the National Labor Relations Act (NLRA) protects a wide range of activities related to organizing, and prohibits employers from interfering with employees in the exercise of those rights. The National Labor Relations Board (NLRB) is charged with investigating and, in some cases, issuing rulings on alleged violations of the NLRA. An ongoing issue of dispute between employers and employees is the extent to which employers can bar their employees from engaging in organizing activities on the employer’s property. The NLRB recently ruled that an employer’s ban on solicitation on company property was an unfair labor practice under the NLRA. UPMC, 366 NLRB No. 142 (2018).

Section 7 of the NLRA protects workers’ “right to self-organization,” which includes the right “to form, join, or assist labor organizations.” 29 U.S.C. § 157. It is an “unfair labor practice” for employers “to interfere with [or] restrain…employees in the exercise of the rights guaranteed in” Section 7. Id. at § 158(a)(1). Employees may file complaints alleging unfair labor practices with the NLRB.

The NLRB’s website states the agency’s position regarding employees’ solicitation of their fellow employees for union membership: “Working time is for work.” Employers, according to the NLRB, are permitted to “maintain and enforce non-discriminatory rules limiting solicitation and distribution,” but they cannot prohibit such activity “during non-work time, such as before or after work or during break times.” It bases this position on U.S. Supreme Court decisions affirming the right to engage in solicitation outside of work hours. The UPMC case involves businesses providing healthcare services. The Supreme Court has ruled that “health care facilities [must] permit employee solicitation and distribution during nonworking time in nonworking areas,” provided that the employer has not shown that such activities cause “disruption of health care operations or disturbance of patients.” Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978).

Establishing an employer-employee relationship is the first step in claims under most federal and New Jersey employment statutes, but that relationship is not always easy to identify. Multiple individuals or organizations can act in the capacity of an employer over a particular worker. They can cause the same harm that employment statutes were created to address, so courts have recognized the concept of “joint employment” for this type of situation. In 2015, the National Labor Relations Board (NLRB) expanded the earlier standard for determining joint employment in cases brought under the National Labor Relations Act (NLRA). Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). Two years later, the NLRB reversed this ruling in Hy-Brand Industrial Contractors, Ltd. (“Hy-Brand I”), 365 NLRB No. 156 (Dec. 14, 2017), but this victory for employers was short-lived. The NLRB vacated its ruling after finding that one of the board members who voted in Hy-Brand I should have recused himself. Hy-Brand Industrial Contractors, Ltd. (“Hy-Brand II”), 366 NLRB No. 26 (Feb. 26, 2018).

In Browning-Ferris, the NLRB revised its standard for determining joint employment. The standard in place at the time looked at the extent of control actually exercised over an employee by an alleged joint employer. The NLRB found that this standard was too narrow. It held that an alleged joint employer does not need to exercise control “directly and immediately.” Browning-Ferris at 1. Instead, indirect control, “such as through an intermediary,” could suffice to establish joint employment. Id. The key was that an alleged joint employer had the authority to exercise control, and therefore it could do so at any moment.

In Hy-Brand I, the NLRB reversed Browning-Ferris by a 3-2 vote. It affirmed the finding by the administrative law judge (ALJ) that the companies at issue were joint employers under the NLRA, but it went on to address the legal standard that the ALJ used. It found the Browning-Ferris standard to be “a distortion of common law,” “contrary to the [NLRA],” and “ill-advised as a matter of policy.” Hy-Brand I at 2. It restored the earlier standard, holding that joint employers must “have actually exercised joint control over essential employment terms” and that “the control must be direct and immediate” rather than “limited and routine.” Id. at 35.