United States: Labor Day Wouldn't Be Labor Day Without New NLRB Decisions

Last Updated: September 6 2016
Article by Mark Theodore

The onset of Labor Day and the end of the NLRB fiscal year (September 30) one can count on seeing a number of decisions issued. This year is no different, and perhaps more are being issued during these last few days because Member Hirozawa's term expired on Saturday August 27.

Here is a summary of a couple of decisions of note issued by the NLRB in the last few days.

Pre-Discipline Bargaining In Newly Represented Units Required (Again)

Over three years ago, a constitutionally infirm panel issued a decision requiring employers to bargain over discipline and termination in a newly organized workplace if the employer's discipline system was discretionary. We discussed that development in a past post. That case ultimately was voided by the Supreme Court's decision in Noel Canning.

The NLRB in a new case Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (August 26, 2016) returned to the invalidated standard, which applies to newly organized units before a collective bargaining agreement is negotiated (after which, all discipline/discharge would be submitted to a contractual grievance procedure). The Board stated the new bargaining obligation as follows:

Under today's decision, after the employer has preliminarily decided (with or without an investigatory interview) to impose serious discipline, it must provide the union with notice and an opportunity to bargain over the discretionary aspects of its decision before proceeding to impose the discipline. At this stage, the employer need not bargain to agreement or impasse, if it commences bargaining promptly. In exigent circumstances, as defined, the employer may act prior to bargaining provided that, immediately afterward, it provides the union with notice and an opportunity to bargain about the disciplinary action and its effects.

"Exigent circumstances" according to the Board is a reasonable good faith belief by the employer that the "employee has engaged in unlawful conduct that poses a significant risk of exposing the employer to legal liability for the employee's conduct or threatens the safety, health or security inside or outside the workplace."

What this means is that in the narrow circumstances of the date a union gains representational rights until the date a contract is reached, the employer must bargain over the discretionary aspects of discipline prior to imposing such discipline. The risk of not engaging in such discipline of course, is now that a bargaining obligation attaches to the decision is that the discipline could be overturned by the NLRB.

The NLRB declined to extend this standard retroactively, so it will apply to discipline situations going forward as of August 26, the date of the decision.

Social Media Continues to Vex Employers

The explosion of social media, in particular the ability of employees to immediately express themselves to a wide audience, is an area that has caused significant hand wringing when it comes to the NLRB. We have discussed this issue many times including here, here and here.

Employers often want to regulate or outright prohibit the posts of employees, only to find out the NLRB deems such activity to violate the Act. The decisions can seem confusing and conflicting.

A recent NLRB decision on this issue adds to the confusion. In Chiptole Services LLC, 364 NLRB No. 72 (August 18, 2016) involved an employee who would use his Twitter account to respond to customers and sometimes fellow employees. The case involved, among other things, three "Tweets" the employer asked the employee to delete from his account, which he did. These Tweets were as follows:

  • The employee tweeted the employer's communication director a copy of a news article about people who have to work on snow days when public transportation was closed, adding the comment "Snow days for 'top performers' [communications director]?"
  • A customer posted "free Chipotle is the best thanks." In response, the employee tweeted "nothing is free only cheap #labor. Crew members make only $8.50hr how much is that steak bowl really."
  • A customer posted about guacamole. The employee responded "its not free like #Qdoba. enjoy the extra $2.

The employee deleted the tweets. As part of a larger unfair labor practice case (involving other issues including the employee's termination), the issue of the deleted tweets was alleged as unlawful.

In finding a violation of Section 8(a)(1) the NLRB ALJ noted that the analysis for evaluating whether an employee's actions are "protected, concerted activity" involves two prongs which are analyzed separately and objectively. First, the employee's action must be concerted. Second, the purpose of the employee's action must be for "mutual aid or protection.". In this case the Judge noted that the employee had not sought out other employees nor had he consulted with them before sending the tweets. Nevertheless, the ALJ ruled the first prong was met because the employee was seeking group action because the tweets "did not pertain to wholly personal issues relevant only to [the employee] but were truly group complaints."

On appeal a majority of the three member NLRB panel reversed this finding holding, simply, "On this record, we do not find that [the employee's] were concerted." The footnote also states Chairman Pearce dissents, and would affirm the ruling except with respect to the tweet about the guacamole.

In sum, whether a social media posting by an employee constitutes protected concerted activity can be very confusing. This case illustrates that four NLRB employees (the ALJ and three Board members) were split evenly over whether the tweet constituted activity protected by the Act.

The best course is to be extra careful when considering taking action for an employee's personal social media post, whether it is to ask the employee to delete the post or issue discipline. If the post does not violate a clear (and lawful) employer policy there will be risk taking action.

Labor Day Wouldn't Be Labor Day Without New NLRB Decisions

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions