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Executive Labor Summary (July - August 2014)

NLRB extends Weingarten right of union representation to drug and alcohol test situations "Petitioned-for" bargaining units at department stores get a mixed reception from the Board NLRB decides not to take a chance on Supreme Court review of its position on class action waivers in arbitration agreements

Supreme Court Decides Noel Canning – NLRB Must Redo or Ratify its Prior Acts

Almost one year after it granted review of Noel Canning, the U.S. Supreme Court, in a 5-4 vote, affirmed the D.C. Circuit Court’s decision that President Obama lacked the authority to appoint three National Labor Relations Board (“Board”) members during a three-day intra-session recess.

Inconsistent discipline leads to reinstatement of employee fired for “throat slashing” motion.

Can an employer fire an employee who allegedly makes a throat slashing motion to a co-worker who interprets the motion as a threat? According to a recent NLRB decision, maybe not. Nichols Aluminum, LLC and Teamsters Local Union No. 371, Case No. 25-CA-08260, august 18, 2014.

NLRB Expands Reach of NLRA by Finding Employee Who Sought Help From Coworkers For Her Sex Harassment Complaint Was Protected

In yet another case that impacts both union and non-union employers, the National Labor Relations Board (NLRB) recently found that an employee who asked coworkers for assistance in preserving evidence for a sex harassment complaint she planned to raise with her employer was engaged in "concerted activities" for "mutual aid and protection" under Section 7 of the National Labor Relations Act (NLRA). Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12 (Aug. 11, 2014). In so doing, the NLRB broadened the scope of protections under the NLRA to cover employees who pursue claims against their employers under a multitude of other federal and state statutes that regulate the workplace.

Board Using OSHA To Drum Up Business

The National Labor Relations Board (“Board”) recently released a Memorandum which could greatly increase the number of unfair labor practice charges filed against employers.

Asking coworkers for assistance in supporting legal claim may constitute concerted activity under the NLRA.

Most employers are aware that Title VII of the Civil Rights Act protects individuals from harassment and discrimination, and further protects them from filing claims alleging such harassment or discrimination. However, many employers are not aware that Section 7 of the National Labor Relations Act (NLRA) also protects employees who attempt to garner support for a potential claim related to employment.

NLRB Regional Director Alleges Immigrant Workers Were Subject to Retaliation for Participating in FLSA Lawsuit and Union Organizing Efforts

A National Labor Relations Board (NLRB) Regional Director is pursuing a set of complaints against a Maryland-area contractor, accusing the contractor of retaliating against immigrant employees for bringing a Fair Labor Standards Act (FLSA) action and attempting to unionize. The matter has drawn the attention of local politicians and interest groups calling for additional workplace protections for undocumented workers.

NLRB Continues Its Busy Summer with Important New Decisions on Weingarten Rights, Noel Canning Issues

The National Labor Relations Board continued its busy summer over the past two weeks. First, the Board issued a decision reaffirming the importance it places on an employee’s Weingarten rights, even if they impede an employer’s investigation of an employee allegedly under the influence of drugs or alcohol. The Board also ratified all of the administrative and personnel actions it took between January 4, 2012 and August 5, 2013, the period during which recess appointees took actions invalidated by the Supreme Court’s ruling in Noel Canning.

NLRB continues to criticize employer restrictions on employees’ use of confidential information.

In another of the increasingly frequent decisions by the National Labor Relations Board critical of employers’ policies and handbook provisions, a Board panel recently determined that the confidentiality rule included in an employer’s “Code of Business Conduct” was overly broad and restricted employees’ right to engage in concerted activities, a restriction in violation of Section 7 of the National Labor Relations Act (NLRA). Fresh & Easy Neighborhood Market, Case Nos. 31-CA-077074 and 080734 (July 31, 2014).

NLRA Violation for Refusal to Allow Union Representation Prior to Drug Test

Executive Summary: The National Labor Relations Board (NLRB or Board) recently held that an employer violated the National Labor Relations Act (NLRA) when it discharged an employee who refused to take a drug test without first consulting with his union representative. See Ralphs Grocery Company and United Food and Commercial Workers Union, Local 324, 361 N.L.R.B. No. 9 (July 31, 2014). In the 2-1 decision, the Board found that the employee's suspension and subsequent discharge were "inextricably linked to his assertion of Weingarten rights," and therefore, reinstatement and backpay were warranted.