Mark Theodore on Administrative Law Judge (ALJ)

Applying the Boeing Standard, NLRB Upholds Employer’s Policies Restricting Cell Phone Use, Non-Work Email Use and Disclosure of...

Applying the facially neutral work rule test laid out in Boeing, the Board recently reversed an Administrative Law Judge decision, concluding that the employer maintained lawful workplace rules restricting employee use of (i)...more

2/24/2020 / Administrative Law Judge (ALJ) , Boeing , Confidentiality Agreements , Corporate Counsel , Employee Handbooks , Employee Rights , Employer Liability Issues , Employment Policies , NLRB , Protected Concerted Activity , Purple Communications , Section 7 , Workplace Safety

NLRB Upholds Employer’s Bargaining And Demotions Post-Impasse As Lawful

In its January 31, 2020 decision in Phillips 66, 369 NLRB No. 13 (January 31, 2020) the Board reversed a number of findings of unfair labor practices found by an Administrative Law Judge related to the employer’s conduct...more

2/15/2020 / Administrative Law Judge (ALJ) , Collective Bargaining , Collective Bargaining Agreements (CBA) , Employer Liability Issues , Employment Contract , Good Faith , NLRB , Terms and Conditions , Unfair Labor Practices , Unions , Wage and Hour

Union’s Failure to Provide Factual Reasons as to Why It Needed Certain Information Privileged Employer to Deny Request, NLRB Rules

In prior posts, we’ve discussed how information requests in the context of labor relations can be deceptively complex to comply with for employers. We’ve seen how an employer’s assertion of confidentiality, standing alone, is...more

1/22/2020 / Administrative Law Judge (ALJ) , Employer Liability Issues , Employment Contract , Information Requests , NLRA , NLRB , Terms and Conditions , Unfair Labor Practices , Union Representatives , Unions , Wage and Hour

Federal Appeals Court Vacates Arbitration Award, Concluding Arbitrator Issued Own “Brand of Industrial Justice”

In the field of labor relations, there exist some rare occurrences, things that happen so seldom that it seems as if they are impossible. As we’ve previously discussed, one such “unicorn sighting” is the NLRB overturning an...more

1/17/2020 / Administrative Law Judge (ALJ) , Appeals , Arbitration , Arbitration Awards , Arbitrators , Collective Bargaining Agreements (CBA) , Corporate Counsel , Labor Relations , NLRB , Vacated

NLRB: Outsized Payment to Union Supporter to Waive Reinstatement in Board Settlement Not Unlawful Bribe

Shamrock Foods Company, 369 N.L.R.B. No. 5 (January 7, 2020) is the latest in the National Labor Relations Board’s series of employer-friendly decisions. In Shamrock Foods, the Board held that an employer did not violate...more

1/13/2020 / Administrative Law Judge (ALJ) , Employee Rights , Equal Employment Opportunity Commission (EEOC) , Hiring & Firing , NLRA , NLRB , Reinstatement , Section 7 , Settlement Agreements , Termination , Unfair Labor Practices , Unions

NLRB Gives End of Year Gift for Employers, Restores Longstanding Standard for Deferring to Arbitral Decisions

In yet another end-of-2019 decision overruling significant NLRA precedent, the Board reverted to the less stringent Spielberg / Olin standard for determining whether to defer to arbitration decisions in the context of Section...more

National Labor Relations Board: Labor Day Roundup

While much of the country spent the last week of summer enjoying the last few days of sun, the National Labor Relations Board spent the week before its eponymous three-day weekend churning out a couple of important decisions....more

9/4/2019 / Administrative Law Judge (ALJ) , Employer Liability Issues , Hiring & Firing , Independent Contractors , Misclassification , NLRA , NLRB , Section 7

NLRB: Employer Did Not Unlawfully Discontinue Christmas Bonus

Summer is winding down but the NLRB continues to be a source of vigorous activity. The Board recently issued a sweeping decision regarding the lawfulness of arbitration agreements. Also, the Board announced its intention to...more

8/20/2019 / Administrative Law Judge (ALJ) , Ambush Election Rules , Arbitration Agreements , Bonuses , Corporate Counsel , NLRB , Union Elections , Unions , Wage and Hour

NLRB Issues “Epic” Decision Concerning the Intersection of Mandatory Arbitration Agreements and NLRA Section 7 Rights

On August 14, 2019, the NLRB issued its first decision addressing employer conduct related to mandatory arbitration agreements and Section 7 activity since the Supreme Court decided Epic Systems Corp v. Lewis, 584 U.S. __,...more

8/16/2019 / Administrative Law Judge (ALJ) , Arbitration Agreements , Collective Actions , Corporate Counsel , Employment Contract , Epic Systems Corp v Lewis , Fair Labor Standards Act (FLSA) , Federal Arbitration Act , Mandatory Arbitration Clauses , NLRA , NLRB , Protected Concerted Activity , SCOTUS , Section 7 , Wage and Hour

Employer’s Discipline of Employees Engaging In “Intermittent Strikes” Lawful: NLRB Majority

This summer has been punctuated by walkouts. We have seen walkouts in support of a $15 minimum wage and walkouts to protest the sale of goods to the government. Walking off the job is, of course, a staple of labor action, and...more

7/31/2019 / Administrative Law Judge (ALJ) , Corporate Counsel , Employee Rights , Employment Policies , NLRA , NLRB , Protected Activity , Strike , Unions , Wage and Hour , Wal-Mart

Employers No Longer Have To Allow Union Representatives Use of Public Areas, NLRB Majority Rules

Citing judicial criticism, as well as the original Supreme Court decisions on the issue, the NLRB swept away years of precedent permitting union representatives to access public areas of an employer’s premises. In UPMC...more

6/18/2019 / Administrative Law Judge (ALJ) , Bright-Line Rule , Disparate Treatment , Employee Rights , New Rules , NLRA , NLRB , Private Property , Property Owners , Public Access Laws , Public Property , Solicitation , Surveillance , Union Organizers , Union Representatives , Unions

Employer’s Grant of Extra Holiday to All Employees Except Those Represented by Union Not Unlawful, NLRB Rules

Employers with union-represented employees also always have non-union employees, whether working in the office or at another worksite. Invariably, there are differences between the wages, benefits, and terms and conditions of...more

6/4/2019 / Administrative Law Judge (ALJ) , Collective Bargaining , Collective Bargaining Agreements (CBA) , Employer Liability Issues , Employment Contract , Holiday Pay , NLRA , NLRB , Union Representatives , Unions , Wage and Hour

NLRB: Employer’s Reasons For Policy Changes Kept Union’s Information Request Alive Even After Proposals Withdrawn

Information requests in the realm of labor relations are simple in theory but can be complicated in practice. We have seen how the topics of information sought by a union can cause skirmishes, sometimes deliberately so. We...more

4/5/2019 / Administrative Law Judge (ALJ) , Business Conduct Standards , Collective Bargaining Agreements (CBA) , Confidential Information , Employment Contract , Employment Policies , Information Requests , NLRB , Privacy Concerns , Publicly-Traded Companies , Unions , Wage and Hour

NLRB Majority: Employer Not Required To Disclose Identity Of Bargaining Unit Informant

An employer’s duty to provide information to the union representing its employees is a frequent of topic of interest to labor relations practitioners because it is very easy to violate the law. For example, an employer’s...more

2/20/2019 / Administrative Law Judge (ALJ) , Bargaining Units , Collective Bargaining Agreements (CBA) , Disclosure Requirements , NLRA , NLRB , Unions , Unpaid Overtime , Witness Statements , Workplace Investigations

Unanimous NLRB: Context Matters – Asking Employee Whether He Saw Union Organizer Not Unlawful Interrogation

How the NLRB treats employer statements made to employees in the context of union organizing or other protected activity has been a frequent topic of discussion. While the actual case law analyzing the coerciveness of an...more

2/14/2019 / Administrative Law Judge (ALJ) , Coercion , Corporate Counsel , Employer Liability Issues , Hiring & Firing , Interrogations , NLRB , Termination , Totality of Circumstances Test , Unfair Labor Practices , Unions , Witness Statements

Employee’s Complaint About Low Tippers Not Protected Concerted Activity, NLRB Majority Rules

The right of employees to band together for purposes of bringing grievances to their employer is at the very core of the National Labor Relations Act, as embodied in Section 7. This right is called protected concerted...more

2/4/2019 / Administrative Law Judge (ALJ) , Corporate Counsel , Employer Liability Issues , Employment Policies , Hiring & Firing , NLRA , NLRB , Protected Concerted Activity , Section 7 , Wage and Hour

NLRB Majority: Unqualified Notice to Picket Jobsite Where Neutrals Are Present Violates Act

We recently saw interesting decisions from the NLRB including cases about the employer’s duty to provide information about tax cuts, the lawfulness of litigation holds, and the validity of decertification petitions. At the...more

1/14/2019 / Administrative Law Judge (ALJ) , Coercion , Collective Bargaining , Decertification , Employer Liability Issues , NLRA , NLRB , NLRB General Counsel , Protests , Right to Picket , Secondary Boycott , Unions , Wage and Hour

Decertification Petition Was Improperly Dismissed, NLRB Rules

Recently, we explored how the NLRB’s rules for determining the timeliness of a representation can be confusing. Another area of complexity comes from whether a decertification petition will be processed in the face of unfair...more

1/7/2019 / Administrative Law Judge (ALJ) , Collective Bargaining , Decertification , Employer Liability Issues , NLRA , NLRB , Unfair Labor Practices , Union Representatives

NLRB Finds Employer Effectively Repudiated Unlawful Handbook Rule…and RecusalGate Continues

The Board issued an interesting decision discussing an employer’s successful efforts to repudiate unlawful conduct, which we’ll get to in a minute. In our last post, we discussed a simmering dispute over the circumstances...more

10/24/2018 / Administrative Law Judge (ALJ) , Employee Handbooks , Employee Rights , Employer Liability Issues , Employment Policies , Mandatory Arbitration Clauses , NLRB , Unfair Labor Practices

NLRB Majority Decides 50-50 Balls In Employer Favor

The NLRB has been in a period of dormancy. When the make-up of the Board changed, a lot of people expected an onslaught of NLRB decisions reversing the reversals of precedent made by the agency in the last 8 years. Except...more

10/16/2018 / Administrative Law Judge (ALJ) , Coercion , Collective Bargaining , Decertification , Employer Liability Issues , NLRA , NLRB , NLRB General Counsel , Notice Requirements , Wage and Hour

NLRB Rejects “Constructive Denial of Transfer” and “Threat” Theories of Unfair Labor Practice Liability

As we hurtle toward Labor Day, and the probable onslaught of decisions, and as NLRB Member Pearce’s tenure ends on August 27, the Board has been issuing a steady stream of cases. Many of these appear to be garden variety type...more

8/28/2018 / Administrative Law Judge (ALJ) , Coercion , Collective Bargaining , Constructive Discharge , Employee Transfers , Hiring & Firing , NLRB , Performance Reviews , Protected Concerted Activity , Section 7 , Unfair Labor Practices , Unions

Arbitration Class Waivers, Past Practice (not established) and Skirmishing Over Information Requests All Part of Recent NLRB...

Since December 2017, when the Board issued a number of decisions which restored precedent that had been changed in the last few years, not much of note has been happening at the Board. Indeed, there was not a full complement...more

8/10/2018 / Administrative Law Judge (ALJ) , Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Collective Bargaining , Corporate Counsel , Employer Liability Issues , NLRB , Sexual Harassment

Employee’s Failed Attempt To Secure Union Representation Sufficient Notice of Weingarten Request, Divided NLRB Rules

One area of labor relations that continues to vex practitioners is the scope of the so-called Weingarten rights. NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975). Some 43 years after the Supreme Court set forth the right that...more

6/29/2018 / Administrative Law Judge (ALJ) , Appeals , Discipline , Employee Rights , Employer Liability Issues , NLRB , Professional Misconduct , Union Representatives , Unions , Weingarten Rights

Thorough Employer Investigation Helps Establish Employer’s “Honest Belief” of Employees’ Picket Line Misconduct

The Board is now operating at a full complement and is issuing decisions on a fairly regular basis. Nothing earth shattering in terms of law (which is kind of a relief) but there are some interesting issues worth discussing....more

5/10/2018 / Administrative Law Judge (ALJ) , Burden-Shifting , Contract Negotiations , Employee Misconduct , Employer Liability Issues , Employment Discrimination , Hiring & Firing , Internal Investigations , NLRB , Property Damage , Protected Concerted Activity , Right to Picket , Strike , Unions

Gridlock Broken: Senate Confirms John Ring as Newest Member of NLRB

By a vote of 50 to 48 the U.S. Senate confirmed Republican John Ring as a Member of the National Labor Relations Board, giving the agency a full five member complement. Member Ring, whose term expires December 16, 2022, takes...more

4/13/2018 / Administrative Appointments , Administrative Law Judge (ALJ) , Employee Handbooks , NLRB , NLRB General Counsel , Regulatory Oversight , Regulatory Standards , Unions

Mark Theodore

Proskauer Rose LLP

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