Management Memo

It has been a decision-packed summer at the National Labor Relations Board (“NLRB” or “Board”), and the last weeks of summer were especially active, with a number of significant decisions released at the end of August that could affect employers with non-unionized as well as unionized workforces. The following is a roundup of significant developments, in order of recency:

Board Membership Update: Member Wilcox Confirmed for a Second Term – One Vacancy Remains

On Wednesday, September 6, 2023, the Senate confirmed President Biden’s nomination of Gwynne Wilcox for a ...

In footnotes to two recent unpublished NLRB decisions,  NLRB Chairman Marvin Kaplan, who was named to that role by the President following the December 16, 2017 conclusion of Philip Miscimarra’s term, and Member William Emanuel offered interested observers an indication of two additional areas of Board law that they believe warrant reconsideration once Mr. Miscimarra’s replacement is nominated and confirmed, and the Board returns to a 3-2 Republican majority.

While unpublished Board decisions “are not intended or appropriate for publication and are not binding ...

On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a Memorandum to the agency’s Regional Administrators notifying them of the withdrawal of its previous guidance, commonly referred to as the Fairfax Memorandum, permitting “workers at a worksite without a collective bargaining agreement” to designate “a person affiliated with a union or community organization to act on their behalf as a walkaround ...

An NLRB Administrative Law Judge issued a Decision on April 29^th in which he found that when a waiter in a restaurant in New York City, acting alone, instituted a class action lawsuit claiming violation of state or federal wage and hour laws, he was  engaging in concerted activity on behalf of himself and co-workers, even if none of those co-workers are aware of the filing.  While the decision does not mention whether the waiter was represented by a union, it seems pretty clear that there was no union in this case.

Thus, the Judge concluded, when the restaurant terminated the waiter, it did so ...

By Adam C. Abrahms and Steven M. Swirsky

In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized,  to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly ...

In the past week media reports abound regarding a controversial allegedly "anti-union" statement made by a high level executive associated with the iconic snack cake Twinkies.  As widely reported late last year, the original Twinkie maker, Hostess Brands, Inc.,  was forced to close, liquidate and lay off its entire unionized workforce, publicly blaming the recalcitrance of its unions for the company's downfall.  However, these statements did not cause this most recent controversy.  Rather, it was comments from an executive connected with Hostess Brands LLC, the newly formed ...

I wrote the October 2012 edition of Take 5: Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green. 

In it, I outline five actions that non-union employers should take to retain their union-free status in 2013:

1. Assess your company's vulnerability.
2. Ensure that company policies are compliant and pro-company.
3. Analyze and arrange your company's workforce to avoid micro-units.
4. Be prepared to respond at the earliest signs of union organizing.
5. Watch for NLRB developments directed at non-union employers.

The following is an excerpt:

With the ...

It seems with each passing month the National Labor Relations Board or its Acting General Counsel opens yet another new front on its assault on non-union employers.  A trend has emerged which puts labor law in conflict with standard employment practices.  From hire, to control of the workplace and employer property, to the manner post-termination disputes are handled, the NLRB is directing employers to ignore conventional wisdom, and often times other legal mandates, to alter the way they deal with their employees.

Much attention has been given to the NLRB’s more direct pro-union ...

Over the past year the NLRB has issued a series of decisions which, taken together, mark a dramatic shift in the property rights of employers and expand the right of employees seeking to use their employer’s property to organize.

Two decades ago, in Lechmere, Inc. v. NLRB, the U.S. Supreme Court ruled that employers had a right to limit or deny non-employee union organizers access to their property provided the denial was nondiscriminatory and consistent with state law.  For almost four decades, following its decision in Tri-County Medical Center, Inc., the NLRB has maintained that ...

It is Employment Law 101 – employment in the United States is generally at-will.  Equally elementary to HR professionals and employment counsel is the use of a good, strong at-will policy and/or agreement.  So common is the use of at-will policies and agreements that you would be hard pressed to find an employment handbook or an employer that does not make some use of them.

Notwithstanding this universal use, the National Labor Relations Board is poised to target non-union employers which maintain at-will policies or agreements.  Although the NLRB has taken several steps to ease the ...