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ICYMI: National Labor Relations Board cases of August 2015


The Board issued a number of notable decisions in August. In case you missed them, each case is briefly summarized below.

NLRB continues to prohibit mandatory arbitration of workplace disputes subject to the NLRA.

Employers may not impose mandatory arbitration to resolve disputes at work if the requirement would reasonably be construed as prohibiting employees from filing ULPs with the Board or acting collectively. In one case where the employer sought to compel individual arbitration, the NLRB found that the Employer had an “illegal objective” and had violated the NLRA by attempting to force employees to arbitrate their Section 7 rights. The right to be free from some types of mandatory arbitration requirements is not limited to union workplaces; non-union workers are also protected.

Countrywide Financial Corp ., 362 NLRB No. 165 (August 14, 2015)

PJ Cheese, Inc ., 362 NLRB No. 177 (August 20, 2015)

Leslie’s Poolmart, Inc ., 362 NLRB No. 184 (August 25, 2014)

On Assignment Staffing Services, Inc , 362 NLRB No. 189 (August 27, 2015)

NLRB holds Weingarten rights apply to drug tests.

The Board held an employer violated Section 8(a)(1) by denying an employee the right to have union representation before consenting to a drug test, although the drug test would have been delayed. The Board further held that the employee was unlawfully discharged because the discharge was inextricably linked to the wrongful denial of his Weingarten rights.

Manhattan Beer Distributors, LLC , 362 NLRB No. 192 (August 27, 2015)

Board affirms employers may not prohibit employees from using email system to solicit when other non-work emails are permitted.

The Board applied Purple Communications and found an employer had violated Section 8(a)(1) of the NLRA by prohibiting employees from using the company’s email system to engage in solicitation, including Section 7 protected communications. The Board further found that the Employer did not rebut the presumption that employees had the right to use the email system to engage in Section 7 protected activities during nonworking time.

UPMC , 362 NLRB No. 191 (August 27, 2015)

NLRB holds employers may not limit workers’ disclosure of information or use of camera phones.

The Board found that the casino's confidentiality rule and ban of the use of cameras, camera phones, and other audio and video recording equipment on the Employer's property without permission were unlawfully overbroad and violated Section 8(a)(1). The Board considered nine rules in its decision, providing a useful guide regarding how to analyze employer handbooks for violations of the NLRA.

Caesars Entertainment , 362 NLRB No. 190 (August 27, 2015)