NLRB Decisions

February 24, 2023

NLRB Obtains Injunction Against New Jersey Employer in Union Dispute

New Jersey employment laws safeguard a wide range of rights for employees, including the right to a minimum wage and overtime compensation, a workplace free from unlawful discrimination, and the ability to organize and negotiate collectively for better working conditions. The National Labor Relations Act (NLRA) is a federal law that protects employees’ rights to self-organization and collective bargaining. It prohibits both employers and unions for coercing employees or interfering with their lawful activities. If an employer has allegedly violated its employees’ rights under the statute, the National Labor Relations Board (NLRB) has the authority to seek a temporary injunction blocking the employer’s alleged actions. A federal district court in New Jersey granted this type of injunction to the NLRB in late 2022.

The NLRA broadly protects workers’ rights to form or join unions. It prohibits a variety of unfair labor practices by both employers and unions. Employers violate the statute if they interfere with lawful employee actions or discriminate against employees because of organizing activity. The statute also imposes affirmative duties on employers. Once employees have chosen a union to represent them in contract negotiations, § 8(a)(5) of the NLRA makes it an unfair labor practice for an employer to refuse to negotiate with an authorized union representative.

The General Counsel (GC) of the NLRB can bring an administrative action against an employer or union for alleged NLRA violations. If the GC and the employer cannot reach a settlement, an administrative law judge (ALJ) will hear the case and render a decision. The members of the Board may hear appeals of ALJ decisions. From there, it may be possible to appeal a decision in the federal court system. One provision of the NLRA, however, allows the NLRB to seek relief from a federal court while a case is pending.
Continue reading

February 16, 2023

NLRB Rules in New Jersey Workers’ Favor in Labor Disputes

by Resnick Law Group, P.C.

Many of the features that we take for granted in the modern workplace are the result of labor organizing that occurred decades ago. The forty-hour work week and eight-hour work day are examples of benefits that labor unions achieved not only for their own members but for workers across the country. New Jersey employment laws regulate minimum wage and overtime pay thanks to the work of unions. Partly in recognition of the important role labor organizing plays in protecting workers’ rights, Congress enacted the National Labor Relations Act (NLRA) in the 1930s. The National Labor Relations Board (NLRB) has the authority to adjudicate disputes involving alleged interference with organizing activities and other unlawful acts. Two recent NLRB decisions involving disputes arising in New Jersey demonstrate the NLRA’s importance for worker protection.

From workers’ point of view, the two most important provisions of the NLRA are probably § 7 and § 8(a). Section 7 broadly identifies workers’ protected rights, including self-organization and collective bargaining. Section 8(a) defines unfair labor practices by employers. These may include:
– Interfering with workers’ attempts to organize themselves;
– Preventing workers from forming or joining a union;
– Discriminating against employees because of protected union activities; and
– Refusing to engage in collective bargaining with employees’ lawfully chosen representatives.

The NLRB has the authority to investigate alleged violations of workers’ rights. The General Counsel of the NLRB may pursue a claim against an employer before an administrative law judge (ALJ). A party before an ALJ may appeal the ALJ’s decision to the full NLRB. Remedies for aggrieved workers may include back pay and reinstatement to a former position. The NLRB may also order an employer to cease and desist from further violations and to revise its employment policies and practices.
Continue reading

October 10, 2022

New Jersey Employer Unlawfully Dealt with Employees Instead of Union, NLRB Rules

by Resnick Law Group, P.C.

The National Labor Relations Act (NLRA) protects the rights of employees to engage in activities related to organizing for the purposes of collective bargaining with their employers. It prohibits employers from interfering with or restraining these activities. Once employees have formed or joined a union and designated it as their authorized representative, the NLRA requires their employer to negotiate with the union regarding issues affecting member employees. An employer violates the NLRA if it deals with represented employees directly rather than through the union. The National Labor Relations Board (NLRB) recently affirmed a ruling finding that an employer violated the NLRA by communicating with employees without notifying the union. If your employer is in discussions with individual employees rather than the union that represents them, reach out to a New Jersey employment lawyer to discuss the situation.

When a majority of employees within a particular unit select a representative for the purposes of collective bargaining, § 9(a) of the NLRA states that this will be those employees’ exclusive representative. A “unit,” according to § 9(b), could consist of all employees in a company, in a division of a company, at a particular plant or facility, or in other groups or divisions. Section 8(a)(5) of the NLRA states that an employer engages in an “unfair labor practice” when it refuses to negotiate with employees’ exclusive representative, as designated under § 9(a).

The NLRB’s interpretation of §8(a)(5) draws on a decision by the Second Circuit Court of Appeals from 1969, in which the court deal with a situation where an employer attempted “to deal with the Union through the employees, rather than with the employees through the Union.” The NLRB has developed a three-part test for identifying situations in which an employer dealt directly with employees in violation of § 8(a)(5):
1. The employer “communicate[d] directly with union-represented employees.”
2. The purpose of the communication was to “establish[] or chang[e] wages, hours, and terms and conditions of employment,” or to “undercut[] the union’s role in bargaining.”
3. The employer excluded the union from the communication.
Continue reading

September 19, 2022

NLRB Rules in Favor of Hotel Workers in New Jersey Labor Dispute

by Resnick Law Group, P.C.

Federal labor law protects workers’ rights to organize themselves in order to engage in collective bargaining and advocate for their interests. The National Labor Relations Act (NLRA) identifies these rights and prohibits employers from interfering with employees who are engaged in protected activities. The National Labor Relations Board (NLRB) adjudicates allegations of unlawful actions by employers and labor unions. Recently, a panel of the NLRB in New Jersey ruled in a case that alleged numerous NLRA violations by an employer, including refusing to negotiate with its employees’ authorized representative and firing multiple employees because of their union activities. An administrative law judge (ALJ) found that the employer violated multiple provisions of the NLRA. The NLRB panel affirmed the ruling, with some modifications. If you are involved in a labor dispute, contact a New Jersey employment lawyer today to learn more about your rights.

Workers have the right to “self-organization” under the NLRA. They may engage in activities directed towards organizing themselves to join or form a union, along with other activities related to “collective bargaining or other mutual aid or protection.” Section 8(a) of the statute identifies prohibited “unfair labor practices by employer[s].” These include interfering with protected activities by employees, discriminating on the basis of union membership or organizing activities, and refusing to participate in collective bargaining with authorized union representatives. Workers may report alleged violations to the NLRB.

The employer in the recent NLRB decision operates a hotel in North Bergen, New Jersey. According to the ALJ’s opinion, it entered into a collective bargaining agreement (CBA) with its employees’ union in 2011. The CBA expired in 2015, but the employer and the union had not been able to agree to a new CBA. As of the date of the ALJ’s ruling in late 2021, the 2011 CBA remained the most recent agreement between the two.
Continue reading

July 17, 2022

NLRB Rules on Question of Back Pay in New Jersey Labor Dispute

by Resnick Law Group, P.C.

Federal law protects workers’ rights to organize themselves and engage in collective bargaining with their employers. The National Labor Relations Act (NLRA) prohibits employers from interfering with these rights. It also authorizes the National Labor Relations Board (NLRB) to investigate alleged violations, rule on complaints, and award remedies like back pay and reinstatement to employees. The NLRB recently issued a ruling in an ongoing New Jersey employment dispute. The employer had raised objections to various details of an order awarding back pay to several former employees. The NLRB’s ruling generally goes in the employees’ favor.

Section 8(a) of the NLRA prohibits “unfair labor practices” by employers, such as interfering with protected activities described in § 7 or discriminating against employees on the basis of their involvement in protected activities. The NLRB has the authority under § 10 “to prevent any person from engaging in any unfair labor practice…affecting commerce.” It may serve complaints on employers based on charges received from workers, and conduct proceedings to determine whether an employer has violated the NLRA. Remedies may include reinstatement of any employee who was not dismissed for cause, along with back pay.

The case that was recently before the NLRB began with charges filed by several employees of a New Jersey nursing center in 2011 and 2012. The employees, who are licensed practical nurses (LPNs), alleged that the employer retaliated against them for their union-related activities by eliminating LPN positions and replacing them with other nurses. In 2016, the NLRB ruled that the employer’s actions violated § 8(a). It ordered the employer to offer reinstatement to the employees and awarded them back pay. The Third Circuit Court of Appeals affirmed the order in 2018.
Continue reading

June 20, 2022

New Jersey Workers Recover $2.3 Million in NLRB Action

by Resnick Law Group, P.C.

The right of workers to organize and bargain collectively with employers has led to many important reforms in workplace safety and working conditions. Congress enacted the National Labor Relations Act (NLRA) in the 1930s to protect these rights. The law created the National Labor Relations Board (NLRB) to adjudicate complaints about interference with organizing activities and other unlawful acts. In 2020, the NLRB ruled in favor of three former employees of a New Jersey bakery production plant who alleged that their employer wrongfully terminated them because of their union activities, along with other alleged NLRA violations. After an appellate court affirmed the ruling, the NLRB pursued an enforcement action against the employer. This resulted in an award of $2.3 million in damages for the three employees. If you have questions or concerns about organizing or collective bargaining in the workplace, reach out to a New Jersey employment lawyer as soon as possible.

The NLRA protects workers’ rights to organize themselves, either by joining an existing labor union or forming a new one, and to engage in collective bargaining and other “concerted activities” related to organizing or protection. Section 8 of the statute prohibits a variety of actions by both employers and unions. Employers may not interfere with employees’ protected activities, nor may they discriminate or retaliate on the basis of union activities. Once employees have chosen representatives to bargain collectively on their behalf, the employer may not refuse to engage with them.

The three complainants in the NLRB action worked at a plant in Fair Lawn, New Jersey as floor helpers and icing mixers. The plant produces cookies and crackers for a major brand. The complainants had been involved with the union for multiple years. The union, according to the decision from the administrative law judge (ALJ), has been the exclusive representative for plant workers since 1958.
Continue reading

May 18, 2022

NLRB General Counsel Takes on Mandatory Meetings by Employers About Unionization in New Jersey

by Resnick Law Group, P.C.

The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to organizing and collective bargaining. The statute prohibits employers from interfering with employees who are exercising their rights, or from coercing them against such activities. New Jersey employment laws provide some protections for labor organizing, but much of the work happens at the federal level. The National Labor Relations Board (NLRB) has the authority to investigate and adjudicate alleged NLRA violations. In April 2022, the General Counsel (GC) of the NLRB issued a memo calling on the NLRB to challenge meetings held by employers to address labor organizing activities, which employees are required to attend. The GC’s position would require the NLRB to reverse a seven-decade-old precedent allowing these types of meetings.

Employees have the right to “self-organization,” to join a union or form their own, and to select representatives to engage in collective bargaining with their employers. They also have the right to refrain from engaging in these types of activities. Employers may not “interfere with, restrain, or coerce employees” with regard to any of these rights. They may not discriminate against employees based on participation in protected activities, nor may they retaliate against workers who engage in acts protected by the NLRA.

In 1948, the NLRB issued a decision regarding an employer that required employees to attend a meeting, held during work hours, at which several managers gave speeches discouraging union organizing or membership. A Trial Examiner had held that the “compulsory” nature of the meeting violated the NLRA’s ban on coercion by employers. The NLRB disagreed. It held that the employer’s actions were not unlawful under the NLRA based on the “totality of the circumstances.” This decision has functioned as a precedent for seventy-four years in cases challenging mandatory employee meetings in which employers address organizing activities.

April 29, 2022

Employees of Major Retailer Vote to Unionize, Which Could Influence New Jersey Workers

by Resnick Law Group, P.C.

Labor unions have helped workers achieve significant improvements in pay and working conditions in New Jersey and across the county by enabling them to bargain collectively with their employers. Instead of each individual employee negotiating with their employer, employees can pool their resources and present a united front. Union membership has fallen over the past few decades for a variety of reasons, but this might be changing. As people return to the workforce after the economic slowdown caused by the COVID-19 pandemic, workers are asserting their rights to fair pay, safe work environments, and more. Employees of a major online retailer on Staten Island, for example, voted to unionize in early April 2022. While their employer is contesting the vote, the impact is already spreading to other workplaces, including many workers in New Jersey who have said they plan on holding votes to unionize. If you feel you have been subjected to unlawful practices in the workplace in violation of state or federal law, please contact a New Jersey employment lawyer today.

Section 7 of the National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to union organizing and collective bargaining. It also protects the rights of workers who do not want to join a union to refrain from these types of activities. Section 8(a) of the statute states that employers may not interfere with union organizing activities. In § 8(b), the statute prohibits unions from “restrain[ing] or coerc[ing]” employees with regard to organizing or membership. Section 9 establishes procedures for employees to vote on forming a union or joining an existing union, and for a union to become the employees’ official representative.

Collective bargaining agreements (CBAs) that require employers to hire union members, known as “closed shop” agreements, are invalid under the NLRA. Some states, known as “right-to-work” states, also prohibit “union shop” agreements, which require employees to join the union once they have been hired. At least twenty-eight states have some form of right-to-work laws as of early 2022. New Jersey is not among them. A CBA between a union and an employer in New Jersey may require union membership. This type of CBA addresses the “free rider” problem, in which employees who are not union members still benefit from the union’s work.
Continue reading

March 4, 2022

New Jersey NLRB Office Files Complaint Against Hospital for Allegedly Trying to Undermine Union Support

by Resnick Law Group, P.C.

The National Labor Relations Act (NLRA) protects employees’ right to organize for the purpose of collective bargaining with their employers. They may do this by forming their own union, or by joining an existing union. Employers may not interfere with employees’ organizing activities. The National Labor Relations Board (NLRB) is responsible for enforcing the law. One part of the agency investigates complaints from workers about alleged violations. Another adjudicates those complaints. Region 22 of the NLRB, based in Newark, New Jersey, filed a complaint against a hospital in late 2021 for alleged NLRA violations. The NLRB’s description of the complaint outlines several examples of conduct prohibited by the statute. If efforts to organize at your workplace for the purposes of collective bargaining are being interfered with, reach out to a New Jersey employment attorney to learn more about your rights.

Section 7 of the NLRA states that employees may engage in activities related to organizing and collective bargaining, as well as “concerted activities for the purpose of…mutual aid or protection”. Employees also have the right to refrain from these activities. Section 8(a) of the statute prohibits various acts by employers, including:
– “[I]nterfer[ing] with…or coerc[ing] employees” with regard to their rights under § 7;
– Interfering with the creation or operation of a labor union;
– Attempting to discourage or encourage union membership among employees, with some exceptions;
– Firing an employee or retaliating against them in other ways for filing a complaint or cooperating with an NLRB proceeding; or
– Refusing to engage in collective bargaining with the employees’ authorized representative.

The NLRB may conduct a hearing to adjudicate a complaint alleging violations of § 8. If it finds that an employer has engaged in unlawful activity, it can award damages to an employee such as back pay. It can also order the employer to reinstate the employee and expunge their records of any unlawful disciplinary actions.
Continue reading

September 17, 2021

NLRB General Counsel Revises Enforcement Priorities for New Jersey and the Rest of the Country

by Resnick Law Group, P.C.

Since taking office in January of this year, the new presidential administration has made numerous changes to federal regulations intended to help New Jersey employees and others throughout the country. This includes adjustments by the National Labor Relations Board (NLRB) to its interpretation of federal labor law. The NLRB’s general counsel (GC), who is responsible for investigating alleged unfair labor cases and pursuing actions against employers, issued two memoranda in August 2021 outlining changes in procedures and priorities. One memorandum announces that the GC will be reviewing cases in which the NLRB overturned its own precedents in recent years. This could signal a new direction for the NLRB, which seems to have taken a pro-employer stance in many recent decisions. The second memorandum sets new enforcement priorities for the GC’s office.

Section 7 of the National Labor Relations Act protects employees’ right to organize themselves for the purpose of collective bargaining. This could include joining an existing union or forming a new one. The statute also protects workers who engage in “other concerted activities” related to organizing “or other mutual aid or protection.” Under § 8(a) of the statute, employers may not interfere with employees who are exercising any of these rights, nor may they discriminate or retaliate against employees who engage in protected or concerted activities.

Courts and the NLRB have interpreted “concerted activities” rather broadly at various times since the NLRA’s enactment in 1935. A 2019 decision by the NLRB, however, overruled an earlier decision that took an expansive view of “concerted activities.” The board stated at the time that it sought to overrule cases “that erroneously shield[] individual action” as opposed to concerted activities. In Memorandum GC 21-04, issued on August 12, 2021, the GC includes the 2019 decision and several others in a list of NLRB decisions addressing the definition of “concerted activity.” This is one of numerous areas of labor law where the GC intends to review the NLRB’s recent decisions.
Continue reading