October 1, 2020

Volume X, Number 275

October 01, 2020

Subscribe to Latest Legal News and Analysis

September 30, 2020

Subscribe to Latest Legal News and Analysis

September 29, 2020

Subscribe to Latest Legal News and Analysis

Second ‘Day Without Immigrants’ Protest, Protected Concerted Activity, NLRB: union kNOw - April 2017

Second ‘Day Without Immigrants’ Protests and Strikes to Take Place on May 1

Building off of what organizers see a successful February 16 ‘Day Without Immigrants,’ a second series of protests and strikes has been scheduled for May 1.

For more information on similar recent activities and strategies on how to respond lawfully to the protest and strike, see our articles, ‘A Day Without Immigrants’ National Strike Planned – What Can Employers Do? and ‘A Day Without a Woman’ Demonstrations Planned for March 8.

According to the website Portside.org, “By striking, we make it clear that this country cannot function without immigrants. We build confidence that through non-cooperation, we can force this country to recognize us and realize that it depends on us. It is not until the United States accepts that it cannot sustain itself without immigrant labor that we will be able to win permanent protection, dignity, and respect.”

Talk Radio Call Is Protected Concerted Activity

An employee’s call to a talk radio program, during which he criticized staffing and the outcomes of management decisions, was protected concerted activity under the National Labor Relations Act, according to the National Labor Relations Board’s Division of Advice. Trinity Technology Group, Case 12-CA-165643 (June 9, 2016) (released Mar. 27, 2017). The Division decided the employee’s comments were a “logical outgrowth” of prior common coworker complaints about working conditions and in furtherance of the group’s goals, even though the employee was not deputized to speak for others. The Division determined he spoke without knowledge the statements were false or with a reckless disregard for their truth and that the statements were not so “disloyal” as to lose the protection of the NLRA. A broadcast is transitory, but the words spoken can be lasting.

Disposition of Unfair Labor Practices Cases Taking Up to 14 Weeks, Few ‘Overage’ Cases, NLRB General Counsel Reports

The National Labor Relations Board’s General Counsel has reported that for Categories III, II, and I unfair labor practice cases, disposition takes 7, 11, and 14 weeks, respectively. (“Disposition” for NLRB case tracking purposes is when the case is “dismissed, deferred, withdrawn, or settled; a complaint is issued; or a 10(k) notice of hearing is issued.”) Memorandum GC 17-02 Report on the Midwinter Meeting of the ABA (Mar. 10, 2017). Under the GC’s Impact Analysis system, cases are prioritized based on public impact and assigned to a category from Category III (highest) to Category I (lowest). For example, a bargaining order investigation (Category III) commands more Board resources than a single allegation of unlawful interrogation (Category I). When a charge is filed, the Region assigns the case an Impact Analysis category. Any case still pending disposition on the last day of the month in which the time target is exceeded is reported as “overage.” Such a case may be excused by the Division of Operations-Management. The Report notes that, in Fiscal Year 2016, only 1.62% of cases in Category I, 1.95% of cases in Category II, and 3.46% of cases in Category III were “overage” without excuse.

Insufficient Funding Hampers Mission, NLRB General Counsel Says

The NLRB is not sufficiently funded to meet its mission, its General Counsel Richard Griffin has admitted. In a March 10, 2017, Memorandum, Griffin wrote to management personnel in the NLRB’s regional offices that “years” of “flat fund[ing]” has had a “detrimental effect on the public.” Memorandum GC 17-02. Ever hopeful, however, in its Fiscal Year 2017 OMB Budget Submission, the NLRB seeks additional funding to “efficiently and effectively” process “comprehensive and complex cases” such as “nationwide efforts to improve the wages ... of retail and fast food workers,” “expanded use of mandatory arbitration clauses in employment” agreements, and the expanded use of technology and social media by employees to discuss employment outside the workplace, among other things.

Jackson Lewis P.C. © 2020National Law Review, Volume VII, Number 121

TRENDING LEGAL ANALYSIS


About this Author

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000
Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta
Shareholder

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented management in dozens of counter-organizing drives and participated in countless unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and other federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

404-586-1835
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

617-367-0025
Patrick Egan, Labor Law Attorney, Jackson Lewis, Boston Law Firm
Patrick L. Egan

Patrick L. Egan is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Mr. Egan works in traditional labor law.

He has assisted employers in all industries in all phases of union organizing campaigns. Mr. Egan has represented employers in card-signing efforts and representation and decertification campaigns. He has conducted union awareness and positive employee relations training for hundreds of companies and employer groups. He has also assisted dozens of employers to preempt, prepare for and defend against union corporate campaigning....

617-367-0025
Matthew D. Freeman, Jackson Lewis, Boston, absence issues lawyer, wage hour litigation attorney
Principal

Matthew D. Freeman is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He routinely advises clients regarding compliance with state and federal labor and employment laws, including those related to employee discipline and discharge, disability management and leave of absence issues, wage and hour issues, and reductions in force.

Mr. Freeman also regularly advises clients regarding traditional labor law issues, including employer rights and obligations under collective bargaining agreements and the...

(617) 367-0025