Labor Board Proceedings and Practice

The National Labor Relations Board (NLRB or Board) recently announced it was changing course on whether students should be considered employees and therefore can unionize. This change of course returns to previous Board precedent from case law that graduate students, and perhaps any students employed for pay, can be considered employees. This change of course

Can language in the workplace, even if uttered during otherwise protected conduct, lose its “protected” status under the National Labor Relations Act (NLRA) because the language is too offensive?  The answer is, generally, yes.

Prior NLRB Rulings Protected Offensive Language

However, in several rulings, the Obama-era National Labor Relations Board (NLRB) ruled that certain speech, which was patently offensive, nonetheless retained its protected status.  On September 5, 2019, the current NLRB invited briefs on the proper legal standard for when extremely profane or offensive language loses its protection.


Continue Reading NLRB Seeks Public Comment on Offensive Language in the Workplace

In an article published earlier this year, I asked the question whether the National Labor Relations Act (NLRA) protects racist insults.  In a decision rendered on August 8, 2017, a majority of an Eighth Circuit panel, over a vigorous dissent, answered “Yes” – that the NLRA does protect racist insults by a picketing worker.

Continue Reading 8th Circuit Panel Rules NLRA Protects Picketing Employee’s Racist Remarks

On Thursday, January 26, President Trump named Republican Phillip Miscimarra as acting Chairman of the National Labor Relations Board (the Board). Miscimarra was the sole remaining Republican on the Board, along with two Democrats – all of whom had been appointed by President Obama. Miscimarra takes over the chairmanship from Mark Gaston Pearce. Miscimarra has a background as a member of several management-oriented labor and employment law and general practice firms. The Board currently has two vacancies which President Trump will be filling in the coming months, along with the position of general counsel. The term of the current general counsel expires later this year.

Continue Reading A Step in the Right Direction

A case currently under consideration in the Eighth Circuit Court of Appeals deserves watching.  The case will determine whether the National Labor Relations Act (NLRA) protects a picketing employee’s right to hurl racist insults at replacement workers, so long as no threat is involved.  The case is Cooper Tire & Rubber Company v. NLRB, Case No. 16-2721.  The facts show an intriguing – and some would argue sad – sacrifice by the current Labor Board of race relations at the altar of protecting striking workers’ and their “impulsive behavior.”

Continue Reading Does the NLRA Protect Racist Insults by Picketing Workers?

The General Counsel for the National Labor Relations Board (the “Board”) recently revealed the Board’s policy initiatives for 2016 in a memorandum to local regional offices.  The memo informs the NLRB regions which cases it considers to be of particular concern and requires that they be submitted to the Division of Advice at the Board’s Washington, D.C. headquarters so the General Counsel’s office may “provide a clear and consistent interpretation of the [National Labor Relations] Act” that is consistent with the General Counsel’s view.  While the memo contains few surprises, it does offer employers a cautionary warning of possible changes to current labor law jurisprudence.  Because these changes may negatively impact employers, employers would be wise to take note of its warnings.
Continue Reading NLRB Policy Initiatives for 2016: Employers Be Warned

Bass, Berry & Sims attorney Tim Garrett authored an article outlining several new labor rulings and developments and explained how these issues impact the healthcare industry. Specifically, Tim highlights cases related to pregnancy accommodation, religious discrimination and accommodations, and union activity. Should an employment situation arise, Tim recommends “engaging employees in an ‘interactive process’ to

In a ruling on August 17, 2015, the National Labor Relations Board (NLRB) decided that it should not exercise jurisdiction over the unionization attempts by Northwestern football players.  The NLRB “punted” the issue and declined to decide whether the football players were employees permitted to unionize under the National Labor Relations Act.
Continue Reading Northwestern Football Players’ Unionization Drive Halted