Category Archives for NLRB

NLRB to centralize decision-making, possibly overturn Purple Communications

  • August 1, 2018

NLRB to centralize decision-making, possibly overturn Purple Communications  

The NLRB will centralize decision-making, according to Bloomberg Law, in an effort to reduce the influence of regional directors, whom business groups see as too pro-labor.

In a memo sent to regional directors Monday, Beth Tursell, associate to the general counsel, said the changes would lead to higher quality and speed in decision-making.

“Under a centralized approach, decision-writers can expect to be called upon to draft decisions on short notice, and they will give that work the highest priorities,” she wrote.

The memo said that regional directors will be “expected to delegate” certain decision authorities to their supervisors, allowing supervisors to dismiss, withdraw or settle existing cases. Tursell said the approach was tested successfully in 17 of the 26 regional offices.

The National Labor Relations Board today asked for input on whether it should overturn Purple Communications, Inc., an Obama-era decision that allows employees to use corporate emails for union organizing after hours.

The notice, which asks the public to file briefs on the matter, suggests that the Republican-controlled board likely will reverse the Obama standard, barring organizers from using corporate email. While Purple Communications applied only to emails, the board also asked whether it should review the standard for other employer-controlled resources such as company phone lists.

In-N-Out Burger Loses “Fight For $15” Button Case

  • July 11, 2018

In-N-Out Burger Loses “Fight For $15” Button Case

Labor Law

This information provided by Clyde Jacob of Fisher Phillips.

Last Friday, the U.S. Court of Appeals for the Fifth Circuit in New Orleans, which has jurisdiction over Texas, Louisiana, and Mississippi, upheld a National Labor Relations Board case that In-N-Out Burger violated the nation’s labor laws with a uniform rule that prohibited employees wearing buttons or pins on their uniforms. In the case, the company forbade employees at a restaurant located in Austin, Texas from wearing “Fight For $15” buttons on their uniforms.

In-N-Out Burger argued that its button rule fits under a category of special circumstances because it long maintained a carefully curated public image with employee uniforms as part of that image. The Board and the Court, however, found that the prohibition in this instance of buttons related to terms and conditions of employment, protected under the National Labor Relations Act, was undercut by the company’s requirement that employees wear larger buttons twice a year – once at Christmas and at a second time in April to promote the company’s foundation for abused children. A copy of the decision is attached, and on pages 3 and 4 you can see photographs of the three actual buttons involved.

The key to the case was the inconsistent application of the no button and pin rule permitting them in two other instances. The case is concerning because In-N-Out Burger required the two buttons to be worn as part of the uniform and prohibited at all times any other buttons or pins.

It is important for employers to monitor any work rules restricting buttons and pins on required uniforms to ensure they are consistently applied across the board. Keep in mind that protected buttons are those that deal with wages, benefits, and terms and conditions of employment, including unionization. Buttons which are profane or relate to other non- work subjects, such as sports, rock/country music, animal rights, politics, etc., can be restricted.

In N Out Burger Decision on Scribd

NLRB launches ethics review

  • June 8, 2018

NLRB launches ethics review

It is becoming apparent that reform of the NLRB is well underway via the leadership of Peter Robb and John Ring.  Earlier this week, GC Peter Robb issued guidance issued a new Guidance Memorandum (18-04) detailing how NLRB Regional Offices receiving claims of improper employment policies are to interpret employer workplace rules.

There are three categories of rules

  • Category 1 Rules are generally lawful, covering things like workplace civility, recording and speaking to the press on behalf of the employer
  • Category 2 Rules are not obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, such as conflict of interest policies or broad confidentiality rules that could impact employee protected concerted activity rights.
  • Category 3 Rules are generally unlawful, such as rules barring discussion of wages or rules against joining outside organizations.

Board chair John Ring has also been active, telling members of Congress the NLRB will be engaging in rulemaking on joint employer issues this year.  Ring also announced this week that the NLRB will conduct a “comprehensive review” of its ethics policies concerning the circumstances under which a board member should recuse himself from a case.

NLRB Chairman John Ring previewed the review in a letter sent to three liberal lawmakers on June 5. Today’s announcement said the board will seek outside guidance and examine the recusal practices of other independent agencies. The review will conclude with a report that specifies conditions for recusals.

Earlier this week, the board rejected a motion by Hy-Brand Industrial Contractors to reconsider its joint employer case after the board vacated its decision in February. But board members split along partisan lines over whether an agency ethics official was right to conclude that member William Emanuel had a conflict of interest when he ruled in the case in December.

The two other Republicans on the NLRB called the determination “unprecedented,” claiming it appeared to “go far beyond the stated ethical rules.” Ring appeared to have this objection in mind today, saying the review would “ensure [that] each board member’s right to participate in cases is protected in the future.”