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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

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Entries in NLRB (48)


NLRB Rules Company’s Moonlighting Ban is Unlawful

An NLRB administrative law judge has ruled that it is illegal for companies to ban employees from moonlighting without permission. 

In the case Nicholson Terminal & Dock Co. and Steve Lavender, NLRB Administrative Law Judge Elizabeth M. Tafe ruled that the company was unlawfully maintaining a handbook rule prohibiting employees from working other jobs unless approved by a company executive.  Nicholson was ordered to rescind or revise the moonlighting rule, due to the “significant potential impact” on employee rights.

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NLRB Confronts Confrontational Clothing Ban

Earlier this year, the National Labor Relations Board, in Medco Health Solutions of Las Vegas, Inc., 364 N.R.R.B. No. 115 (Aug. 27, 2016), found that a dress code policy that banned “confrontational” clothing banned federal labor law.  The case, stemmed from an incident in which the Company ordered an employee to remove a t-shirt that said “I don’t need a WOW to do my job.”  The WOW Program was created by the employer in 2009 and was an employee recognition program in which employees received “WOW awards” and could be featured on a “Wall of WOW” display.

The policy language at issue prohibited clothing that was “degrading, confrontational, slanderous, insulting or provocative.”  The Board found that the company failed to show that the t-shirt would adversely affect the business. 

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NLRB Blurs the Lines Between Being a Student and Being an Employee

As reported by my colleague Erik Peters last week, the National Labor Relations Board (“NLRB”) has again reversed course and held that graduate students at private universities may unionize.  See Columbia University, 364 NLRB No. 90 (2016). 

Until 2000, the NLRB consistently held that graduate students working at the universities in which they were enrolled as students were not “employees” within the meaning of the National Labor Relations Act (“NLRA”) and therefore could not unionize. The NLRB reversed its precedent in 2000 by holding that graduate students are employees under the NLRA. A change in Presidential Administration, and with it changes to the composition of the NLRB, resulted in the NLRB reverting to its prior precedent in 2004, i.e. graduate students are not employees. The NLRB, again altered by the change in Presidential Administration, has now again reversed course. While future changes to the composition of the NLRB may again bring about a ruling that graduate students are not employees, private universities should begin preparing for the consequences of this significant change.

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NLRB: Grad Students at Private Schools Can Join Unions

Well, law school certainly felt like a job to your humble correspondent, and now it appears that the National Labor Relations Board agrees.

Actually, it’s not quite that simple; however, on Tuesday, the NLRB ruled that grad students working as teaching and research assistants at private universities (specifically Columbia University) are entitled to collective bargaining. In so doing, the Board reversed its 2004 decision concerning a similar push for unionization at Brown University. Pending a challenge to the decision, the UAW will represent the Columbia grad students.

Decision accessible here; story containing a timeline of efforts at graduate student unionization here and here.

Also, stay tuned for follow up post by my colleague, Joanna Bowers, with her take on the dissent.


Policy to “Conduct only . . . business while at work” Found to Violate NLRA

The Casino Pauma expects employees to work while at work—a concept that is not foreign to many of us. In fact, they put the expectation into writing and placed in their employee handbook a clause which provided: “Team members are to conduct only Casino Pauma business while at work. Team members may not conduct personal business or business for another employee during their scheduled working hours.” Administrative Law Judge Robert A. Giannasi, however, in a July 18, 2016 decision found that this provision violates the National Labor Relations Act because it was overbroad and unlawfully restricted employees rights to discuss unions and engage in other protected activity during non-work time. (Casino Pauma, No. 21-CA-161832 (July 18, 2016)).

Specifically, the ALJ found that the “only business while at work” clause, “can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on non-work time.” The ALJ found the “while at work” language to be too broad “because it is not properly restricted to ‘work time,’” as set forth in the second clause.

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Beer Distributor Appeals NLRB Finding as to Terminated Union Employee Who Reeked of Marijuana

Appellate briefing to the Second Circuit was completed earlier this week in Manhattan Beer Distributors LLC v. NLRB, a case in which the NLRB, in 2015, held that Manhattan Beer Distributors violated an employee’s Weingarten rights when they terminated a distribution employee who “reeked” of marijuana after he refused to submit to a drug test without a union representative present.

In NLRB v. J. Weingarten Inc. (1975), the U.S. Supreme Court held that an employee has a statutory right to request a union representative during an investigative interview which the employee reasonably believes could result in disciplinary action. In the current action, the question was whether the submission to a drug test was “an investigatory interview” which would thus result in the employee having Weingarten rights.

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