On March 21, 2017, the United States Supreme Court ruled that the National Labor Relations Board’s former Acting General Counsel Lafe Solomon served in violation of the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345, et seq. (“FVRA”) when he continued in that position after President Barack Obama nominated him for a full term as General Counsel.
By a 6 to 2 vote, the Justices affirmed an August 2015 decision by the D.C. Circuit, which found that Solomon improperly served as Acting General Counsel during the almost three-year period between January 2011 and late 2013 while his ...
Over the past week the U.S. Court of Appeals for the District of Columbia Circuit weighed in on two separate related efforts by the Obama-Board to expand the protections of the National Labor Relations Act (the “Act”) to workers who are not in traditional employer-employee relationships.
One Court – Two Cases
In a March 3, 2017 decision, the Court rejected the National Labor Relations Board’s (“NLRB”) finding that FedEx Home Delivery drivers were employees and agreed with the company that the drivers were independent contractors and therefore did not have the right to ...
Featured on Employment Law This Week - Philip Miscimarra, Acting Chairman of the National Labor Relations Board (NLRB), has given a strong indication of the changes likely to come once President Trump fills vacant seats on the NLRB.
In a sharply worded dissent, Miscimarra doubled down on his disagreement with the NLRB’s controversial 2014 rule on union representation elections. Miscimarra argues that the rule’s heavy emphasis on election speed interferes with an employee’s right to make informed decisions on union representation and is inconsistent with the requirements ...
NLRB Acting Chair Philip Miscimarra has given the clearest indication to date of what steps a new Republican majority is likely to take to reverse key elements of the Labor Board’s hallmark actions of the Obama administration once President Trump nominates candidates for the Board’s two open seats and the Senate confirms. In each of these cases, Miscimarra highlighted his earlier opposition to the majority’s changes in long standing precedents and practices.
The Acting Chair’s Position On the Board’s 2014 Amended Election Rules – The Emphasis On “Speed Above All ...
On February 23, 2017 the National Labor Relations Board (“Board” or “NLRB”) made public a proposed Final Rule to revise its Rules and Regulations “ (the “Rules”) to reflect modern technology, such as E-Filing, and eliminate references to telegraphs, carbon copies, and the requirements for hard copy submissions and multiple copies, and to eliminate legalistic terms” from the Rules.
Because the Board contends these amendments to its Rules as “procedural rather than substantive,” it has taken the position that it is not obligated to allow for comment before the ...
A recent decision of the United States Court of Appeals for the District of Columbia Circuit in connection with an employer’s challenge to a National Labor Relations Board (“NLRB” of “Board”) representation election in which the Board certified a “wall to wall” bargaining unit provided clear evidence of just how critical it is for employers to make detailed “offers of proof” concerning issues the Board will not allow them to litigate under the amended election rules which took effect in April 2015.
While this case involved a representation petition filed before ...
Following on the heels first of the U.S. Supreme Court’s January 13, 2017 announcement that it granted certiorari in NLRB v. Murphy Oil USA, along with Epic Systems Corp. v. Lewis (7th Circuit) and Ernst & Young, et al. v. Morris (9th Cir.), and then of President Trump’s January 26, 2017 appointment of Philip A. Miscimarra as Acting Chair of the National Labor Relations Board (“NLRB” or “Board”), there is yet another new development in the ongoing fight over the NLRB’s challenge of class action waivers in arbitration agreements.
Acting swiftly, on January 26, 2017, the ...
By appointing Philip Miscimarra, who has served as a Member of the National Labor Relations Board (“NLRB” or “Board”) since August 2013, to serve as Acting Chair of the agency, President Donald Trump has taken the first step in what will undoubtedly be an ongoing process to change the National Labor Relations Board. Chairman Miscimarra is the only Republican currently serving on the Board. Mark Gaston Pearce, who has served as chairman, a Democrat who has served as chairman since 2011 and as a Board Member since 2010, will continue to serve under his appointment which expires in ...
In the new issue of Take 5, our colleagues examine five employment, labor, and workforce management issues that will continue to be reviewed and remain top of mind for employers under the Trump administration:
Read the full Take 5 online or download ...Epstein Becker Green is pleased to be participating in the 2017 National HR In Hospitality Conference & Expo at the Aria Hotel in Las Vegas on March 27-29, 2017. EBG is sending two of its hospitality industry focused attorneys to represent the Firm, Jeffrey H. Ruzal and Steven M. Swirsky.
Jeff and his co-panelists will discuss the topic of new wage and hour regulations, which will be held on Monday, March 27, 2017. This panel of hospitality employment law professionals will cover changes associated with the minimum salary for exempt employees, managing challenges of off-duty work ...
In yet another decision that exhibits the current Board’s overreaching and expansive view of its jurisdiction, the Board recently ruled that nurses who supervise and assign other hospital staff are not statutory supervisors.
A Position Expressly Created to be Supervisory is Not Supervisory, According to the Board
In 2016, Lakewood Health Center (“Lakewood”) restructured its staffing system and replaced charge nurses with a newly created position, Patient Care Coordinator (“PCC”). According to the uncontradicted testimony of Lakewood Vice-President of Patient ...
The year-end episode of Employment Law This Week looks back at the biggest employment, workforce, and management issues in 2016.
Our colleague Laura Monaco discusses the National Labor Relations Board's decision in Miller & Anderson, which expanded the already-relaxed joint-employer standard adopted by the Board in its August 2015 decision in Browning Ferris Industries.
The show also reviews the Trustees of Columbia University decision on collective bargaining and union organizing.
Watch the segment below and read Epstein Becker Green's recent Take 5
As we previously reported, the ambush election rules implemented by the National Labor Relations Board (“Board”) last year tilted the scales of union elections in labor’s favor by expediting the election process and eliminating many of the steps employers have relied upon to protect their rights and those of employees who may not want a union. We warned that in addition to rapidly expediting election timeframe, the regulations were full of technical and burdensome procedural mandates on employers. The Board further emphasized the pro-union impact of these requirements ...
Our colleagues Lauri F. Rasnick and Jonathan L. Shapiro, attorneys at Epstein Becker Green, have a post on the Financial Services Employment Law blog that will be of interest to many of our readers: “Policies Prohibiting 'Insubordination or Other Disrespectful Conduct' and 'Boisterous or Disruptive Activity in the Workplace' Struck Down by NLRB Majority.”
Following is an excerpt:
Once again seemingly appropriate work rules have been under attack by the National Labor Relations Board (“NLRB”). In a recent decision (Component Bar Products, Inc. and James R. Stout, Case ...
In the waning days of the Obama Administration, the President’s appointed General Counsel to the NLRB took official action this week to permit questionable and disruptive strike activity, including one day strikes that are frequently used by aggressive unions against hospitals and other employers. Specifically, the GC’s Office issued an Operations-Management Memorandum acknowledging unions and employees “are more frequently engaging in short-term strikes” and seeking to “clarify and modify the law regarding intermittent and partial strikes” to address ...
When: Tuesday, October 18, 2016 8:00 a.m. – 4:00 p.m.
Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019
Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:
- Latest Developments from the NLRB
- Attracting and Retaining a Diverse Workforce
- ADA Website Compliance
- Trade Secrets and Non-Competes
- Managing and Administering Leave Policies
- New Overtime Rules
- Workplace Violence and Active-Shooter Situations
- Recordings in the Workplace
- Instilling Corporate Ethics
The National Labor Relations Board (NLRB or Board) has ruled that graduate teaching assistants, i.e. graduate students who provide instruction and assist faculty with research as part of their own post-graduate education are “employees” within the meaning of the National Labor Relations Act (NLRA or Act), and thus have the right to join unions and engage in collective bargaining with the universities and colleges where they study.
For those who follow the Board, the 3-1 decision in Columbia University in, 364 NLRB No. 90 (2016) should come as no surprise. This past January ...
The National Labor Relations Board (NLRB or Board), which continues to apply an ever expanding standard for determining whether a company that contracts with another business to supply contract labor or services in support of its operations should be treated as a joint employer of the supplier or contractor’s employees, is now considering whether a company’s requirement that its suppliers and contractors comply with its Corporate Social Responsibility (CSR) Policy, which includes minimum standards for the contractor or supplier’s practices with its own employees can ...
Featured on the new episode of Employment Law This Week: Employers must have specific waivers to make unilateral policy changes when bargaining with a union.
That's according to the NLRB, which once again clarified its "clear and unmistakable" waiver standard to restrict employers’ midterm changes. In this case, an employer relied on a broad management rights clause in its contract with the union to make unilateral changes to specific policies. The NLRB found that the union had not waived its right to bargain over those changes because the contract did not refer to the policies ...
The National Labor Relations Board (“NLRB” or “Board”) has reversed the findings of an Administrative Law Judge (“ALJ”) who found that an employee who was told he was fired and then almost instantly told by the owner of the company he worked for that he was not fired and continued to work without any loss of compensation or working time had in fact been unlawfully discharged in violation of the National Labor Relations Act (“NLRA” or the “Act”). It would seem that if “discharge is the ‘capital punishment’ of employment,” this case presents a rare example, in ...
The National Labor Relations Board (“NLRB” or “Board”) announced in its 3-1 decision in Miller & Anderson, 364 NLRB #39 (2016) that it will now conduct representation elections and require collective bargaining in single combined units composed of what it refers to as “solely employed employees” and “jointly employed employees,” meaning that two separate employers will be required to join together to bargain over such employees’ terms and conditions of employment.” To understand the significance of Miller & Anderson, one must consider the Board’s ...
On June 20, 2016, the United States Supreme Court granted a request by the National Labor Relations Board (“NLRB” or the “Board”) to review a decision from the D.C. Circuit Court of Appeals, which found that the Board’s former Acting General Counsel Lafe Solomon served in violation of the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345, et seq. (“FVRA”) when he remained in that position after President Barack Obama nominated him to permanently fill the General Counsel role.
In June 2010, President Obama named Solomon as Acting General Counsel for the Board. Then, just ...
Featured on Employment Law This Week: The NLRB reverses its mixed-guard unit recognition rule. If a union represents both security guards and other employee groups, then an employer’s decision to recognize the union is voluntary. Before this decision, employers could also withdraw their recognition if no collective bargaining agreement was reached. Now, employers must continue to recognize the union unless and until the employees vote to decertify it in an NLRB election.
View the episode below or read more about this story in a previous blog post, written by Steven M ...
Featured on Employment Law This Week: The National Labor Relations Board (NLRB) finds the hiring of permanent replacements for strikers to be an unfair labor practice.
In a 2-1 decision that could benefit unions during contract negotiations, the NLRB found that a continuing care facility in California violated federal labor law when it hired permanent replacements after a series of intermittent strikes. While the NLRB and courts have long held that an employer’s motivation for hiring permanent replacements is irrelevant, in this case, the board held that if the hiring is ...
One of the top stories featured on Employment Law This Week: The U.S. Court of Appeals for the Seventh Circuit has joined the National Labor Relations Board in finding that arbitration agreements containing class action waivers violate the National Labor Relations Act (NLRA).
At issue is a collective and class action by employees of Epic Systems about overtime pay. The company was seeking to dismiss the case based on a mandatory arbitration agreement that waived an employee’s right to participate in a collective or class action. Unlike the Fifth Circuit, the Seventh Circuit ...
The National Labor Relations Board, in a 2-1 decision by Chairman Mark Pearce and Member Kent Hirozawa, in American Baptist Homes of the West, 364 NLRB No. 13, has adopted a new standard for considering the legality of an employer’s hiring of permanent replacements in response to economic strikes. The decision, in the words of Member Philip Miscimarra’s dissent, is not only a “deformation of Board precedent,” but “a substantial rearrangement of the competing interests balanced by Congress when it chose to protect various economic weapons, including the hiring of ...
[caption id="attachment_1437" align="alignright" width="98"] Steven M. Swirsky[/caption]
The US Court of Appeals for the Seventh Circuit in Chicago has now sided with the National Labor Relations Board (NLRB or Board) in its decision in Lewis v. Epic Systems Corporation, and found that an employer’s arbitration agreement that it required all of its workers to sign, requiring them to bring any wage and hour claims that they have against the company in individual arbitrations “violates the National Labor Relations Act (NLRA) and is unenforceable under the Federal ...
[caption id="attachment_1437" align="alignright" width="98"] Steven M. Swirsky[/caption]
National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., has announced in a newly issued Memorandum Regional Directors in the agency’s offices across the country that he is seeking a change in law that would make it much more difficult for employees who no longer wish to be represented by a union to do so. Under long standing case law, an employer has had the right to unilaterally withdraw recognition from a union when there is objective evidence that a majority of the ...
[caption id="attachment_1437" align="alignright" width="98"] Steven M. Swirsky[/caption]
In a further incursion into the area of the gig and new age economy, the Regional Director for the National Labor Relations Board’s Los Angeles office has issued an unfair labor practice complaint alleging that it is a violation of the National Labor Relations Act (the “Act”) for an employer to misclassify an employee as an independent contractor.
The Complaint, which is based on a charge filed by the International Brotherhood of Teamsters, through its’ Justice For Port Truck ...
[caption id="attachment_1437" align="alignright" width="98"] Steven M. Swirsky[/caption]
NLRB General Counsel Richard F. Griffin, Jr. has released a General Counsel Memorandum that offers an unusually frank insight into how he intends to use his office for the remainder of his term to pursue what he calls “initiatives and/or priority areas of the law and/or labor policy” to set an agenda to expand the rights of both represented and unrepresented employees and to pare back, substantially in many circumstances, the rights of employers in collective bargaining, responding ...
Steve Swirsky, one of the co-editors of this blog, is featured on Employment Law This Week. He discusses the NLRB's General Counsel memo that outlines the agency's top enforcement priorities for 2016.
The General Counsel for the National Labor Relations Board has issued an internal memo that offers employers insight into his office’s initiatives and emphasis this year. The memo describes the types of cases that must be submitted to the Division of Advice for review, rather than decided by the Regional Office where the charge was filed. Among other priorities, the General ...
The US Department of Labor has finally issued its long awaited Final Rule radically reinterpreting the “Advice Exemption” to the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA.”). The Final Rule eviscerates any meaningful use of the Advice Exemption, which would be swallowed up by the new expansive definition of persuader activity which could include discussion regarding strategy, reviews of employer drafts and myriad other ways labor attorneys currently aid their clients including essentially any meaningful advice or counsel provided by labor ...
A featured story on Employment Law This Week is the NLRB's crackdown on employers restricting the content of personal emails sent through the employer’s email system.
In 2014, the NLRB ruled that employees who have email through their employers can use that email to communicate about union-related issues. In a recent election at Blommer Chocolate Company, the union claimed that company email rules interfered with the voting process. Employees were allowed to use the company’s email system for personal emails, but were prohibited from expressing personal opinions in their ...
One of the questions asked of NLRB General Counsel Richard F. Griffin, Jr. following his presentation at this week’s meeting of the Committee on Developments Under the National Labor Relations Act of the American Bar Association was whether the National Labor Relations Board will follow the EEOC’s lead and adopt a practice of turning employers’ position statements in ULP investigations over to the unions and individuals who have filed the charges.
While his carefully phrased response was that the General Counsel’s office has not made such a decision at this time, most of ...
In a decision with ramifications for employers in health, retail, hospitality and other industries serving the public, on October 22, 2015 in a decision, Marina Del Rey Hospital, 363 N.L.R.B. No. 22, 2015 BL 347693, the NLRB confirmed the legality of policies barring employees from the premises when not on duty, which contain an exception permitting off-duty employees to be on the premises as members of the public, e.g., as a patient or a visitor. The Board found, however, that enforcement of the facially neutral policy to certain employment restrict protected activity constitutes ...
Employment Law This Week has released bonus footage from its interview with Steven Swirsky, co-founder of this blog and Member of the Firm at Epstein Becker Green.
In its recent Browning-Ferris decision, the NLRB loosened the standard for determining who qualifies as a joint employer. In this video, Mr. Swirsky elaborates on his comments featured as the top story in Employment Law This Week, Episode 1 (Oct. 19, 2015).
The top story on Employment Law This Week - Epstein Becker Green's new video program - is the NLRB’s recent Browning-Ferris decision, where it loosened the standards for determining who qualifies as a joint employer. It’s a critical ruling that affects many different industries and employers and the episode sums it up very succinctly.
The episode features a soundbite from this blog's co-founder Steven Swirsky, who has written extensively on the decision. See below to view the episode or read more about this important ruling and its implications.
Unions no longer will need to gather employees’ signatures on authorization cards before they can file a petition with the National Labor Relations Board (“NLRB” or “Board”) for a representation election. General Counsel Richard F. Griffin, Jr. has issued Memorandum 15-08 (pdf) announcing that effective immediately unions filing petitions will be allowed to submit and the Board will “accept electronic signatures in support of a showing of interest if the Board’s traditional evidentiary standards are satisfied.”
Acceptance of Electronic Signatures ...
The National Labor Relations Board (“NLRB” or “Board”) has issued its long-anticipated decision in Browning-Ferris Industries, 362 NLRB No. 186 (pdf), establishing a new test for determining joint-employer status under the National Labor Relations Act (“NLRA” or the “Act”). Because this revised standard will resonate with businesses relying on contractors and staffing firms throughout the economy and across industry lines, employers should be wary of its potential impact upon relationships with service providers that are supportive of, or critical to ...
Evidence continues to mount as to how much more quickly representation elections are being held since the National Labor Relations Board’s (“NLRB” or “Board”) Amended Representation Election Rules that took effect on April 14, 2015. Melanie Trottman of The Wall Street Journal has crunched the data and reports today that the median number of days between the filing of a representation petition and the day on which employees vote has fallen to 23 days in uncontested elections where the employer and union stipulated to the terms for the vote, and 25 days in the 20 contested ...
As we reported, earlier this week the National Labor Relations Board (“NLRB” or “Board”) decided that it would not exercise jurisdiction with respect to the representation petition filed by the College Athlete Players Association seeking to represent the scholarship members of the Northwestern University football team. The Board did not answer the question of whether it considered the team members to be employees of the university and explained that for policy reasons it was not answering the critical questions at this time. It did however make clear that it might well do ...
The National Labor Relations Board (“NLRB” or “Board”) has ruled in a unanimous decision that it is dismissing the petition filed by the College Athlete Players Association for an election declaring Northwestern University football team members who receive grant-in-aid scholarships are “employees” within the meaning of the National Labor Relations Act (“Act”). The Board explained that it had concluded that “asserting jurisdiction in this case would not promote stability in labor relations.” The Board made clear however that it might well assert ...
The National Labor Relations Board has issued an Order (PDF) denying a request for a special appeal filed by McDonald’, USA, LLC and its franchisees (collectively referred to as “McDonald’s” in the Board’s Order) and found that the Administrative Law Judge presiding in the unfair labor practice hearing did not err when she denied McDonald’s motion for a bill of particulars explaining the factual basis for the General Counsel’s claim that McDonald’s, USA, LLC and the named franchisees are joint employers.
The ALJ Had Denied McDonald’s Motion for a Bill of ...
On August 7, in SW General Inc. v. NLRB 2015 US App LEXIS 13812, a federal appellate court ruled that the January 5, 2011 appointment of Lafe Solomon as Acting General Counsel to the NLRB violated the Federal Vacancies Reform Act 5 U.S.C. Sections 3345 et. seq. (FVRA) (PDF). For that reasons it held that his authorizations to issue an unfair labor practice (“ULP”) complaint in the case was invalid and the NLRB’s decision finding the employer guilty of ULPs must be vacated. Since Solomon served as Acting General Counsel until November 4, 2013, the Court’s decision renders ...
One of the hallmark initiatives of NLRB General Counsel Richard F. Griffin Jr. has been the pursuit of more aggressive remedies in response to what the General Counsel considers to be egregious unfair labor practices (“ULP’) activity. While his predecessors and prior Board members spoke of “special remedies” that they would seek to impose in what they deemed extraordinary cases, General Counsel Griffin and today’s National Labor Relations Board (“NLRB” or “Board”) are much more frequently arguing for and directing remedies that go beyond those that the NLRB ...
U.S. District Court Judge Amy Berman Jackson on Wednesday issued a 72 page opinion (PDF) rejecting each of the arguments raised by the U.S. Chamber of Commerce, the National Retail Federation and other business groups and found that the Amended Election Rules adopted by the National Labor Relations Board in December 2014, which took effect in April 2015, in an action that argued that the Board had exceeded its authority, violated the Administrative Procedures Act and that the Amended Rules were unconstitutional.
This is the second district court decision to reject such challenges ...
Last week we reported that the NLRB continues its assault on arbitration agreements in spite of judicial rejection of its holdings. Days after our post, another federal judge disregarded the NLRB’s holdings and actually dismissed employees’ wage and hour claims because the employees failed to follow the court’s order compelling the employees to arbitration.
Specifically, on July 8, 2015, a federal judge dismissed (PDF) the original wage and hour collective action that ultimately led to the NLRB’s decision in Murphy Oil where it held that arbitration agreements ...
On July 10, in Venetian Casino Resort, LLC v. N.L.R.B., the D.C. Circuit Court of Appeals ruled that a resort and casino operator’s call to the Las Vegas Police Department, asking it to take action in response union demonstrators trespass on its private property, was protected by the First Amendment and did not violate the National Labor Relations Act (“Act”). The Court’s decision vacated a decision by the National Labor Relations Board (“NLRB” or “Board”), in which the Board found that the act of calling the police in those circumstances unlawfully interfered with ...
Last month, in two separate cases, the National Labor Relations Board (“NLRB” or the “Board”) and an NLRB Administrative Law Judge (“ALJ”) found against employers in cases involving the right of employees to wear union insignia at work. While the Board has long held that wearing union t-shirts, stickers and the like is a form of concerted protected activity protected by Section 7 of the National Labor Relations Act (“Act” or “NLRA”), it has historically recognized the right of employers to limit this when necessary to maintain an appropriate atmosphere, these ...
The National Labor Relations Board (NLRB or Board) invited interested parties to submit amicus briefs in Miller & Anderson, Inc. in connection with the Board’s reexamination of critical issues affecting the ability of unions to organize employees employed by temporary and staffing agencies (“temporary employees”) in the same bargaining units as employees of an employer that supplements its direct workforce with temporary employees.
Elections Involving Joint-Employers
Under the existing law, the Board will only conduct an election and certify a unit that includes ...
Even further expanding the National Labor Relations Board’s (“NLRB”) holdings in D.R. Horton and Murphy Oil limiting employer requirements concerning class action waivers, on June 26, 2015, an NLRB administrative law judge (“ALJ”) ruled that even a non-mandatory arbitration agreement that is voluntarily entered into by employees is unlawful if it requires employees to waive joint, class or collective actions in all forums, judicial and arbitral.
In November 2011, AT&T Mobility Services (“AT&T”) sent via email a Management Arbitration Agreement ...
The National Labor Relations Board (“NLRB” or “Board”), in its June 26, 2015, Decision and Order in American Baptist Homes of the West d/b/a Piedmont Gardens (PDF) has overruled what it described as a longstanding “blanket exemption” allowing employers to protect the confidentiality of witness statements taken during investigations and not provide them to a union in response to an information request. In place of the long standing body of law protecting the confidentiality of witness statements, which was established in recognition of the needs for ...
One of two lawsuits challenging the National Labor Relations Board’s authority to issue the expedited election rules that took effect on April 14, 2015, has now been dismissed by Judge Robert L. Pitman of the United States District Court for the Western District of Texas in Austin. In his 27 page decision, Judge Pitman that the plaintiffs, including Associated Builders and Contractors of Texas and the National Federation of Independent Businessmen, could not establish that the NLRB’s December 14, 2014 rule “Representation – Case Procedures; Final Rule,” (the “New ...
A couple weeks ago we provided anecdotal reports from several NLRB Regional Directors that after one month the new Ambush Election Rules union elections were being held in considerably less time, with the Regional Directors claiming elections were being scheduled between 25-30 days. Last week, according to BNA’s Daily Labor Report and Law360, the NLRB released national results of the first month showing that the impact was worse than anticipated.
More Union Petitions Under Ambush Elections Rule
Between April 14 (the day the rules when into effect) and May 14, 280 ...
As reported in Epstein Becker Green’s May 2015 Immigration Alert, the National Labor Relations Board (the “Board” or “NLRB”) continues to focus on issues concerning the rights of undocumented workers whose rights under the National Labor Relations Act (the “Act”) are interfered with for engaging in union activity and other forms of protected, concerted activity covered by the Act.
In its March 27, 2015, Supplemental Decision in Mezenos Maven Bakery, Inc., 362 NLRB No. 41 (2015), the Board, in response to a remand from the United States Court of Appeals for the Second ...
May 14th marked the one-month anniversary of the effective date of the NLRB’s Amended Representation Election Rules (“amended rules”). That day, the Regional Directors for NLRB Regions 2 (New York, NY), 22 (Newark, NJ), and 29 (Brooklyn, NY) discussed their offices’ experiences processing representation petitions filed since the amended rules took effect on April 14th.
With respect to the questions of how the amended rules are actually affecting representation petitions and elections, while one month may not be representative, the data to date does offer some ...
The National Labor Relations Board (“NLRB”) unfair labor practice hearing against McDonald’s, USA, LLC (“McDonald’s) and numerous franchisees opened in New York City on Monday March 30, 2015, before Administrative Law Judge (“ALJ”) Lauren Esposito. (“ALJ”), a former NLRB field attorney and union lawyer. Also this week, the Service Employees International Union (“SEIU”) announced that it was investing an additional Fifteen Million Dollars in the Fight For Fifteen campaign, which seeks to organize fast food workers nationwide and that a series of ...
My colleague Barry A. Guryan published a Health Employment And Labor (HEAL) blog post that will be of interest to many of our readers: “NLRB Extends “Specialty Healthcare” to Acute Care Hospitals: Carves Unit into Multiple Smaller Pieces.”
Following is an excerpt:
Ever since 1974, when the NLRB (“Board”) first took jurisdiction over health care institutions, the Board has paid particular attention to the impact of union organizing on the delivery of healthcare in this industry in general and of acute care hospitals in particular. When the Act was first amended in ...
On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued General Counsel Memorandum GC 15-04 containing extensive guidance as to the General Counsel’s views as to what types employer polices and rules, in handbooks and otherwise, will be considered by the NLRB investigators and regional offices to be lawful and which are likely to be found to unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA” or the Act”).
This GC Memo is highly relevant to all employers in all industries that are under the jurisdiction of the National ...
Last week we reported on the fact that Teamsters Local 853 and Loop Transportation had completed negotiations for a first collective bargaining agreement covering a unit of shuttle bus drivers who provide transport for employees of Facebook. We pointed out that employers in technology, media and telecommunications were facing union organizing targeting employees of their vendors and suppliers for transportation, maintenance, food service and the like, that threatened to enmesh such employers as a consequence of unions gaining recognition of their vendors’ and ...
Employers in the Technology Media and Telecommunications (“TMT”) industries have generally not thought that union organizing was an issue that affected their businesses and workforces. Recent developments suggest that this is no longer the case.
These industries have earned reputations for innovative workplaces, generous benefits, and free food. At the same time, technology companies have outsourced many non-core functions such as campus security, maintenance, and transportation to third party suppliers. Employees of these vendors generally receive less ...
New Union Rules and Rulings: Proactive Strategies for Employers Facing Today’s Aggressive National Labor Relations Board and New Expedited Representation Elections
April 14, 2015 – Hilton Westchester, Rye Brook, New York
May 7, 2015 – The L.A. Hotel Downtown, Los Angeles, California
The National Labor Relations Board (NLRB) has adopted dramatic new rules and processes for union representation elections scheduled to take effect on April 14, 2015. The NLRB has also changed many of its standards concerning workplace rules, handbooks and policies affecting ALL EMPLOYERS ...
On January 5, 2015, less than one month after the National Labor Relations Board (NLRB) voted to adopt a Final Rule to amend its rules and procedures for representation elections, a lawsuit has been filed in the US District Court for the District of Columbia, asserting that the Board exceeded its authority under the National Labor Relations Act (Act) when it amended its rules for votes on union representation and that the new rule in unconstitutional and violates the First and Fifth Amendments of the US Constitution.
The suit was filed by the Chamber of Commerce of the United ...
On December 19, 2014, the National Labor Relations Board published a public notice stating that the NLRB General Counsel has issued 13 unfair labor practice complaints against McDonald’s USA, LLC, and McDonald’s franchisees alleging that McDonald’s and the franchisees are joint-employers, and as such, are jointly responsible for alleged violations of the National Labor Relations Act. What’s at stake in these cases is not only shared responsibility for these alleged violations of the Act, but possibly also shared responsibility in collective bargaining should those ...
In our new Act Now Advisory, “NLRB Adopts Expedited Election Rules, Effective April 15, 2015,” we report on the National Labor Relations Board’s new rules for representation elections. These rules will substantially shorten the time between the point when a union files a petition for a vote and the timing of the vote, severely limit the right of employers to litigate important issues before an election is held, and are expected to result in more union wins in representation votes. We include steps that employers may want to consider taking in advance of April 2015, in order to ...
Updated, 12/12/14 — In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to email at work. While the majority in Purple Communications characterized the decision as “carefully limited,” in reality, it appears to be a major game changer. This decision applies to all employers, not only those that have union-represented employees ...
On October 28 a three-member majority of the National Labor Relations Board in Murphy Oil U.S.A., Inc. revisited and reaffirmed its position that employers violate the National Labor Relations Act (the “Act”) by requiring employees covered by the Act (virtually all nonsupervisory and non-managerial employees of most private sector employees, whether unionized or not) to waive, as a condition of their employment, participation in class or collective actions.
As previously reported in an Act Now Advisory, in 2012 the NLRB held in D.R. Horton that the home ...
For retail and hospitality industries especially, it is turning out to be a long, hot summer as franchises continue to be in the employment law spotlight.
On July 29, 2014 the NLRB’s General Counsel announced a decision to treat McDonald’s, USA, LLC as a joint employer, along with its franchisees, of workers 43 McDonald’s franchised restaurants with regard to unfair labor practices charges filed by unions on behalf of the workers and authorized charges against of both the franchisees and McDonalds. (See our July 30 blog post and Aug. 14 blog ...
We have written about it before but a recent NLRB decision is yet another example of the NLRB’s expanding and expansive view of what constitutes protected, concerted activities, and is therefore protected under the National Labor Relations Act. In Fresh & Easy Neighborhood Mkt, the NLRB (Chairman Pearce and Members Hirozawa and Schiffer) found that an employee engaged in protected, concerted activity when the employee spoke to co-workers about a single act of sexual harassment that was “seemingly directed at [the employee ...
By Peter M. Panken, Steven M. Swirsky, and Adam C. Abrahms
In May, we cautioned employers that the NLRB would be increasing its aggressive pursuit of injunctions under Section 10(j) of the Act to pressure employers in a range of unfair labor practice cases. The Board’s aggression and apparent overreach is clearly revealed in one recent case in which the Board petitioned for and was granted an injunction to end a lockout, only to have the underlying unfair labor practice allegation dismissed eight days later when the Administrative Law Judge who heard the case found that the ...
Following the NLRB’s announcement on July 29th of its position that McDonald’s and its franchisees are joint employers, commentators across the spectrum have been opining about this actually means for employers, unions and workers.
This week the AFL-CIO weighed in with its opinions in a post on its blog AFL-CIO NOW. After recounting the background of the developments, in section called “What’s the Big Picture?” the author points out how organized labor intends to take advantage of the Board’s anticipated broadening of the standards for finding joint employer ...
The NLRB’s General Counsel’s Office, in an Advice Memo dated October 25, 2013 (pdf) and released to the public on August 7, 2014, has taken the position that “an enterprise that grows, processes, and retails medical marijuana” is an employer subject to the National Labor Relations Act provided it meets the Board’s monetary jurisdictional standards and is an employer engaged in commerce and that “the Board should assert jurisdiction over this type of business enterprise.”
Notably, the General Counsel’s office advocates the position that even though all of ...
The National Labor Relations Board has been busy since the Supreme Court’s June 26th Noel Canning decision trying to address the issues and uncertainty resulting from the Court’s holding that recess appointments of Board members on January 4, 2012, were invalid because the Senate was not actually in recess. As we pointed out in our earlier post, this meant that numerous Board decisions from January 4, 2012 until August 5, 2013, because the Board lacked a quorum at the time that the cases were decided and many administrative actions, including appointments of Regional Directors ...
NLRB General Counsel Richard Griffin announced on Tuesday July 29th that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of 181 charges pending against McDonald’s, USA, LLC and various of its franchisees, in which the Board will allege that the company and its franchisees are joint-employers. If the General Counsel prevails on his theory that McDonalds is a joint employer with its franchisees, the result would be not only a finding of shared responsibility for unfair labor practices, but could also mean that the franchisor would share in the ...
The NLRB finds that the women’s shoe sales employees at Bergdorf Goodman’s New York Store are not an appropriate unit for bargaining. The Board’s unanimous decision to reverse the Regional Director’s finding that the shoe sales team did constitute an appropriate unit and could have their own vote on union representation comes one week after its decision finding that a unit limited to the cosmetics and fragrance sales employees at a Macy’s in Saugus were an appropriate unit for bargaining. The Regional Directors who issued the Decisions and Directions of Election in ...
The New York Times reported today in its business section in article by Steven Greenhouse, who covers labor matters for the paper, about a convention taking place in Addison. The convention is underwritten by the Service Employees International Union or SEIU, which has been not very quietly backing the “Stand for Fifteen,” movement in its quest for wages of $15 per hour in the fast food field. It is probably not a coincidence that Addison is just four miles from McDonald’s headquarters in Oak Brook, Il.
While most of last week’s focus in labor relations law was on the NLRB’s ...
By: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
In case you were hoping that the Supreme Court’s recent decision in Noel Canning would finally put to bed any questions regarding President Obama’s recess appointments to the NLRB, or that the Fifth Circuit’s rejection of the Board’s decision in D.R. Horton might alter the NLRB’s position on the right of employers to require employees to abide by mandatory arbitration agreements , think again.
In Fuji Food Products a decision issued on July 15, 2014, NLRB Administrative Law Judge Jeffrey D. Wedekind held ...
On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.
Following is an excerpt from the blog post:
On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all ...
By: Adam C. Abrahms, Kara M. Maciel, Steven M. Swirsky, and Mark M. Trapp
The U.S. Supreme Court today held that the US Senate was not in recess on January 4, 2012, when President Obama made three “recess” appointments to the National Labor Relations Board under the Constitution’s Recess Appointment Clause. In simple terms that means that the recess appointments were not proper and s decisions in which the recess appointees participated were not valid.
What this now means is that hundreds of cases decided by the NLRB following the January 4, 2012 recess appointments to the ...
By Steven M. Swirsky and Peter M. Panken
NLRB General Counsel Richard Griffin has declared in an April 30, 2014 General Counsel Memorandum. that his office will continue and expand the increasingly aggressive pursuit of injunctions in Federal Court against employers in connection with union organizing and bargaining for initial collective bargaining agreements.
In GC Memorandum GC 14-30, the Board’s regional offices have been directed that they should aggressively consider requesting authorization from the General Counsel and the Board to pursue Section 10(j) injunctions ...
By Kara M. Maciel and Lindsay A. Smith
On April 30, 2014, the National Labor Relations Board (the “Board”) invited interested parties to submit amicus briefs addressing an employee’s right to use an employer’s electronic communications system for Section 7 activity in the case of Purple Communications Inc. Based on a prior Board decision in Guard Publishing Co. d/b/a Register Guard (2007), employers are not currently required to allow employee use of their e-mail systems for protected, concerted activities because in that case the Board held, “employees have no ...
An NLRB Administrative Law Judge issued a Decision on April 29th in which he found that when a waiter in a restaurant in New York City, acting alone, instituted a class action lawsuit claiming violation of state or federal wage and hour laws, he was engaging in concerted activity on behalf of himself and co-workers, even if none of those co-workers are aware of the filing. While the decision does not mention whether the waiter was represented by a union, it seems pretty clear that there was no union in this case.
Thus, the Judge concluded, when the restaurant terminated the waiter, it did so ...
As we reported on April 14, in “NLRB Receives Spirited Debate Over Ambush Election Rules During Public Meeting,” our colleague Kara M. Maciel spoke on behalf of the National Grocers Association, on three separate panels.
See below for the videos, or visit the NLRB channel on Youtube.
For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections. The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA). The positions of the parties were ...
Our colleague Kara Maciel will speak on behalf of EBG client, National Grocers Association (“NGA”), at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.
The panels will address the following topics:
- Panel B.2: Requirement for written statement of position
Address issues related to the proposed requirement for a written statement of position. - Panel E.1 & E.3: Election date
Please describe the standard to be applied for ...
By Steven M. Swirsky and Adam C. Abrahms
The Regional Director for the NLRB’s Chicago Region has found that football players at Northwestern University who receive scholarships are “employees” for purposes of the National Labor Relations Act. Some of the football players blindsided the University, NCAA and college athletics by filing a petition to be represented by the College Athlete Players Association (CAPA), a putative union funded and supported by the United Steelworkers union. As only "employees" are covered by the National Labor Relations Act, finding them to be ...
By Kara M. Maciel and Lindsay A. Smith
On March 12, 2014, the National Labor Relations Board (“the Board”) concluded that a beef processing company committed an unfair labor practice in violation of the National Labor Relations Act (“NLRA”) when it terminated three workers for striking in protest of their working conditions (“Greater Omaha Packing Co.”). More significant, however, was the Board’s decision to reverse an Administrative Law Judge’s finding concerning the employer’s questioning of an employee. Prior to the strike, one of the terminated ...
Today, EBG client, National Grocers Association (“NGA”), filed a request to speak at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.
NGA is the national trade association representing retail and wholesale grocers that comprise the independent sector of the food distribution industry. NGA requested to speak on 4 key issues being contemplated by the NLRB:
- Timing of the Election. NGA opposes any ...
As we have discussed on a number of prior occasions (Fifth Circuit Rejects The NLRB’s D.R. Horton Decision On Arbitration Waivers; Obama’s Labor Agenda Continues to Advance – Griffin Confirmed as NLRB GC; NLRB Administrative Law Judge Finds Medical Center’s Technology Usage Policies Violated Employees Rights Under the National Labor Relations Act. and Labor Law vs. Common Sense – NLRB Continues Targeting Non-Union Employers and Common Sense) the National Labor Relations Board (“NLRB” ) and its Administrative Law Judges continue to find that ...
By Steven M. Swirsky, Adam C. Abrahms, Kara M. Maciel, and Casey M. Cosentino
As previously predicted by the Management Memo on August 1, 2013 and October 30, 2013, the National Labor Relations Board (the “Board”) issued a second Notice of Proposed Rulemaking (“NPRM”) to amend its existing rules and regulations governing union elections procedures. If they look familiar when you see them, there is a good reason for that: you have seen them before.
As readers of the Management Memo are well aware, the NPRM is the latest development in the long saga of organized labor’s attempts ...
While most Americans were preparing for their Thanksgiving Feast, President Obama showed his thanks last week to Big Labor and its hundreds of millions in campaign contributions by ignominiously allowing his recently confirmed Labor Secretary to move forward his DOL's long pending radical proposal to dramatically change the decades old "Persuader Regulations". The Proposed Rule is designed to give unions both an organizing and bargaining advantage by significantly restricting the right and ability of employers to obtain legal counsel and lawfully communicate with employees ...
Yesterday, in his first public address since being confirmed by the Senate, NLRB Board Member Kent Y. Hirozawa shared with the attendees of EBG's 32nd Annual Client Labor and Employment Briefing his views on the current Board and what to expect from it.
His address, coming the day before Halloween, had all the "BEWARE" foreshadowing of a good ghost story; unfortunately for employers, the potential horrors may not be tricks or treats.
Board Poised For an Active and Productive 2014
As we noted here, when Hirozawa was confirmed as part of a package deal in July the Board had its first full ...
Earlier this week the Senate confirmed Richard Griffin as NLRB General Counsel. As we have noted previously in greater detail, Griffin’s appointment was controversial, having been unconstitutionally appointed as a Board Member and, to the ire of Republicans, seemingly thumbed his nose and multiple Courts of Appeals which ruled he and the other recess appointments did not have the authority to act.
In an anti-climactic end to several years of NLRB appointment Senate wrangling, Griffin was confirmed Tuesday in a party line vote. He now becomes the first confirmed ...
The NLRB has issued an announcement, explaining how it will recalculate deadlines for filings and submissions in light of the federal government’s 16 day shutdown earlier this month. As we reported at the time of the shutdown the NLRB sua sponte granted parties a one day extension for each day that the Board was closed.
In its announcement dated October 17, 2013, the Board explained that the extensions will apply for all pending matters and not just those due dates that fell during the shutdown period. There is a one day extension for “each day on which the Agency’s offices are ...
The NLRB has advised its employees in a message posted on the Employee Information section of its website that the Agency has initiated a process to resume full operations. As such, all employees should make every effort to return to work on Thursday, October 17, 2013. This reflects the fact that, as the Board has informed its employees who may not have been following developments in Washington too closely, that “late last night President Obama signed legislation to extend the nation's debt limit and end the partial shutdown of the federal government.”
As we ...
by: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
On Monday October 1, 2013, the Board published a Notice in the Federal Register to the NLRB’s website that supplements the effects of the Contingency Plan that we examined at outset of the government shutdown and NLRB furlough. Significantly, the Notice answers some of the important practical questions confronting employers, unions and employees with business before the Board.
With respect to time limits for filings with the agency, according to the Notice, the Board has unilaterally granted an extension of the ...
By: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
The shutdown of the federal government that took effect at 12:01 a.m. Tuesday October 1st has shut down all non-essential operations of the US government, including those of the National Labor Relations Board (Board or NLRB).
The Board’s Contingency Plan for Shutdown in the Absence of Appropriations (“Contingency Plan”) is now in effect, effective today. It details how the shutdown will impact the NLRB’s operations and what the shutdown means for employers, employees and unions with unfair labor practice ...
By Adam C. Abrahms, Steven M. Swirsky, and D. Martin Stanberry
On Tuesday, August 20th, in an opinion that follows in the wake of Noel Canning, United States District Judge Benjamin H. Settle dismissed an injunction petition filed by Ronald Hooks, a Regional Director of the National Labor Relations Board, on the grounds that he was “without power” to issue the underlying unfair labor practice complaint.
The Regional Director had initially filed the petition with the District Court in June in an effort to obtain a temporary injunction that would, among other things, have ...
On August 1st President Obama made a bold statement by appointing Richard Griffin to serve as the NLRB's General Counsel only three days after the former union lawyer vacated his unconstitutional recess appointment as a NLRB Board Member. The President statement by appointment made at least two things clear -
- The President wants an aggressive pro-labor General Counsel and NLRB, and
- The President values advancing the labor agenda over cooperation with the US Senate.
As we discussed here on July 30th the Senate confirmed a full Board for the first time in a decade as a result of a "deal" in ...
On July 30th the Senate confirmed career union lawyer Kent Hirozawa (D) and retired AFL-CIO Associate General Counsel Nancy Schiffer (D) as well as seasoned management labor lawyers Philip Miscimarra (R) and Harry Johnson (R) to serve on the National Labor Relations Board. The Senate also confirmed current NLRB Chairman Mark Gaston Pearce (D).
The confirmations are of course the result of the Senate Republicans backing down in the face of the threat by Senate Democrats to change Senate rules so that they could force a vote, up or down, on President Obama's nominations for the Board and ...
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Recent Updates
- Chevron Is Overturned, but Stakeholders Need Not Worry
- Video: SCOTUS Limits Availability of Injunctions in NLRB Unfair Labor Practice Cases - Employment Law This Week
- Supreme Court Rules NLRB 10(j) Injunctions Must Meet Higher Preliminary Injunction Standard in Blow to NLRB
- OSHA’s New Walkaround Rule Potentially Grants Union Representatives Access to Safety Investigations
- Fifth Circuit Redresses NLRB’s Tesla Decision but the Board Remains Undaunted