Mark Theodore on NLRA

Business Groups’ Lawsuit Slams California Ban on “Captive Audience” Meetings

As we reported here, California’s Senate Bill (S.B.) 399, took effect on January 1, 2025. This law prohibits employers from requiring employees to attend meetings about the company’s opinions on political or religious...more

1/21/2025 / California , Constitutional Challenges , Declaratory Relief , Employee Rights , Employment Litigation , First Amendment , Fourteenth Amendment , Free Speech , Injunctive Relief , Labor Reform , NLRA , NLRB , State Labor Laws , Unions

NLRB Returns to Exacting “Clear and Unmistakable” Waiver Standard for Contractual Waiver of Right to Bargain Over Unilateral...

This week, in an expected decision, the National Labor Relations Board (“NLRB” or “Board”) reinstated its prior “clear and unmistakable” waiver standard—a standard that has been much criticized by the courts—for determining...more

12/13/2024 / Collective Bargaining , Contract Waiver , NLRA , NLRB , Unfair Labor Practices , Unilateral Modification , Waivers

Compete All You Want: ALJ Strikes Down Non-Compete Agreement, Setting Up NLRB Review

As we’ve discussed previously (see here and here), next up on the NLRB chopping block is whether non-compete agreements create a “chilling effect” on employees in the exercise of their Section 7 rights of the National Labor...more

6/25/2024 / Administrative Law Judge (ALJ) , Federal Trade Commission (FTC) , NLRA , NLRB , Non-Compete Agreements , Non-Solicitation Agreements , Pre-Employment Agreements , Restrictive Covenants , Retaliation

Appellate Court Rejects NLRB’s Findings in Employer Surveillance Case as “Nonsense”

Declaring the NLRB’s rationale to be “nonsense,” on March 26, 2024, a unanimous three-judge panel for the United States Court of Appeals for the District of Columbia in Stern Produce Company Inc v. NLRB, refused to enforce...more

4/1/2024 / Administrative Law Judge (ALJ) , Appellate Courts , Corporate Counsel , EEO , Employee Handbooks , Employment Policies , NLRA , NLRB , NLRB General Counsel , Surveillance , Unfair Labor Practices

Not A Clean Break: Cautionary Tale for Employers Looking To Close Plants

In a very active end of summer for labor law, the National Labor Relations Board (“Board”) ruled in a 2-1 decision, in Quickway Transportation, Inc., 372 NLRB No. 127, that a company’s closure of a terminal where its drivers...more

9/1/2023 / Administrative Law Judge (ALJ) , Anti-Union Actions , Business Closures , Corporate Counsel , Employees , Hiring & Firing , NLRA , NLRB , Section 8(a) , Unions

NLRB Reinvigorates 1949 Joy Silk Doctrine Giving Great Weight To Demands For Recognition

As we previously reported in April 2022, the National Labor Relations Board (“NLRB” or “Board”) General Counsel, Jennifer Abruzzo, asked the Board to revive the Joy Silk doctrine (which was rejected in 1969) and require...more

8/29/2023 / NLRA , NLRB , NLRB General Counsel , Secret Ballot , Unfair Labor Practices , Union Elections , Unions

NLRB Establishes Stricter Test for Whether Employer Policies and Work Rules Violate the NLRA

Late summer brings picnics, hiking, and general fun. It also brings a slew of NLRB decisions as the agency’s fiscal year comes to an end on September 30. One of the more highly-anticipated decisions concerns the lawfulness of...more

8/8/2023 / Boeing , Employee Handbooks , Employer Liability Issues , Employment Policies , NLRA , NLRB

Stericycle Brings Us Full Circle

Late summer brings picnics, hiking, and general fun. It also brings a slew of NLRB decisions as the agency’s fiscal year comes to an end on September 30. One of the more highly-anticipated decisions concerns the lawfulness of...more

8/4/2023 / Boeing , Employee Handbooks , Employment Policies , Labor Law Violations , NLRA , NLRB , Section 7

No Limits: Non-Compete Agreements Next Up on NLRB General Counsel Chopping Block

Following the National Labor Relations Board’s (“NLRB”) highly-controversial decision in McLaren Macomb declaring most confidentiality and non-disparagement clauses in separation agreements to be unlawful, General Counsel...more

5/31/2023 / Corporate Counsel , NLRA , NLRB , NLRB General Counsel , Non-Compete Agreements , Non-Disparagement Provisions , Section 7 , Severance Agreements

NLRB Flips (Again), Reinstates Context-Specific Standards For Employee Misconduct

On Monday, the National Labor Relations Board (“Board”) issued a decision making it riskier and more complicated for employers to discipline employees for abusive workplace conduct alleged to have arisen within the context of...more

5/9/2023 / Abusive Conduct Training , Employee Misconduct , NLRA , NLRB , Section 7 , Social Media , Wright Line Test

Drafter Beware: NLRB Finds That Employers Who Offer Severance Agreements With Broad Non-Disparagement or Confidentiality...

The National Labor Relations Board (“Board”) issued a ruling on February 21, 2023, in McLaren Macomb, 372 NLRB No. 58 (2023), which in effect finds broad confidentiality and non-disparagement clauses in severance agreements...more

2/23/2023 / Confidentiality Agreements , NLRA , NLRB , Non-Disclosure Agreement , Non-Disparagement Provisions , Severance Agreements

Federal Appeals Court Partially Affirms Elimination of NLRB Rule, Hitting Fast-Forward Button on Representation Elections

A divided three-judge panel of the D.C. Circuit Court of Appeals partially affirmed a federal district court’s decision to vacate part of a rule issued by the National Labor Relations Board (the “Board”) in 2019 that...more

1/19/2023 / Administrative Procedure Act , AFL-CIO , Appeals , Certifications , NLRA , NLRB , Union Elections

Latest NLRB General Counsel Memorandum Directs Regions to Attempt to Settle 10(j) Injunctions Before Going to Court

National Labor Relations Board (“NLRB”) General Counsel (“GC”) Jennifer Abruzzo stated over a year ago that 10(j) injunctions in NLRB charges were “one of the most important tools available to effectively enforce the...more

10/21/2022 / Injunctions , NLRA , NLRB , NLRB General Counsel , Unfair Labor Practices

Divided NLRB Rules (Again) that Dues Deductions Survive Contract Expiration

For more than five decades, employers could cease deduction of dues at the expiration of a collective bargaining agreement as a legitimate economic weapon. It was only recently that, as part of the constant shifting of...more

10/4/2022 / Collective Bargaining Agreements (CBA) , Labor-Managment Relations Act , NLRA , NLRB , Union Dues

Appellate Court Reverses NLRB, Holding Tweet About “Salt Mines” Not an Unfair Labor Practice

Last week, the Third Circuit reversed a National Labor Relations Board (“NLRB”) decision finding that FDRLST Media, publisher of online news magazine The Federalist, unlawfully threatened its employees when its Executive...more

5/31/2022 / Collective Bargaining , Embedded Tweets , Employee Rights , Employer Liability Issues , Labor Law Violations , Labor Reform , Labor Regulations , Labor Relations , NLRA , NLRB , Unfair Labor Practices , Unions

NLRB GC Seeks Dramatic Change to Employer’s Right to Speak to Employees About Unionization at Work

For decades, employers had been free to gather employees to discuss – in a non-coercive manner – the employer’s views on unionization, and had been free to share with employees what employees’ rights were with respect to the...more

4/7/2022 / Collective Bargaining , Employee Rights , Labor Relations , NLRA , NLRB , NLRB General Counsel , Unions

We Knew This Was Coming: NLRB General Counsel Recommends Abandoning Workplace Rule and Confidentiality Rule Frameworks

As foreshadowed by the NLRB General Counsel’s August 2021 Advice Memorandum, the vacillating standard for the legality of employer handbooks and policies and confidentiality requirements during open employer-investigations...more

3/11/2022 / Boeing , Confidentiality Agreements , Corporate Counsel , Employee Handbooks , Employee Rights , Employer Liability Issues , Employment Policies , Labor Reform , NLRA , NLRB , NLRB General Counsel , Section 7

NLRB Plans to Revise Joint Employer Standard Once Again

On Friday, December 10, 2021, the Board announced in its regulatory agenda that it plans to engage in rulemaking on the standard for determining whether two employers are “joint employers” under the NLRA. ...more

12/16/2021 / Browning-Ferris Industries of California Inc. , Collective Bargaining , Corporate Counsel , Employer Liability Issues , Federal Labor Laws , Franchises , Joint Employers , Labor Reform , Labor Regulations , NLRA , NLRB , Staffing Agencies , Unfair Labor Practices , Unions

Here We Go Again: NLRB Foreshadows A Potential Return To Micro-Units

The ability to form smaller bargaining units by breaking up larger aspects of an employer’s organization—sometimes called “micro-units”—is generally seen as an effort to enhance the ability of unions to gain entry into an...more

12/10/2021 / Bargaining Units , Collective Bargaining , Employee Rights , Employer Liability Issues , Labor Relations , Micro-Unions , NLRA , NLRB , Unions

Google’s Union Campaign Strategy Documents Not Privileged, NLRB Administrative Law Judge

Google recently suffered a blow in its ongoing National Labor Relations Board litigation, when an Administrative Law Judge appointed to rule on a discovery dispute ordered the Silicon Valley company to turn over the lion’s...more

12/6/2021 / Administrative Law Judge (ALJ) , Attorney-Client Privilege , Discovery , Discovery Disputes , Employer Liability Issues , Employment Litigation , Evidence , Google , Labor Relations , NLRA , NLRB , Retaliation , Subpoenas , Unions , Work-Product Doctrine

Hands Off My Ballot: NLRB Finds that Solicitation of Mail-Ballots is Objectionable Conduct That May Warrant Setting Aside an...

Since the onset of the COVID-19 pandemic, mail-ballot elections—rather than manual, in-person elections, have been mandatory for most NLRB representation elections. The NLRB’s recent ruling, on June 9, 2021, in Professional...more

6/11/2021 / Coronavirus/COVID-19 , Mail-In Ballots , NLRA , NLRB , Union Elections , Unions

5/10/2021 / Administrative Law Judge (ALJ) , Collective Bargaining , Collective Bargaining Agreements (CBA) , Discipline , Duty to Bargain , Employer Liability Issues , Employment Policies , Labor Relations , NLRA , NLRB , Unfair Labor Practices , Unions

Mark Theodore

Proskauer Rose LLP

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