By Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
With an eye toward next term, the Supreme Court announced on Monday, June 24th, that it had granted the National Labor Relations Board's (“NLRB”) petition for certiorari in Noel Canning v. NLRB. This news all but ensures that America’s highest court will determine not only the fate of President Obama's recess appointments to the Board, but also the extent of a president's Constitutional power to appoint individuals to various federal agencies, departments and courts without the advice and consent of the Senate.
Our colleague, Barry A. Guryan at Epstein Becker Green recently posted “Eleventh Circuit Overturns NLRB'S Petition to Seek Injunctive Relief Against Mardi Gras Casino” on the Hosptitality Labor and Employment Law Blog, and we think you’ll be interested.
Following is an excerpt:
In a case recently decided by the U.S. Court of Appeals for the Eleventh Circuit (National Labor Relations Board v. Harman and Tyner Inc., d.b.a. Mardi Gras Casino, Hollywood Concessions, Inc., 2013 U.S. App. LEXIS 7555), the Court affirmed a District Court’s decision to reject the National Labor ...
By: Evan Rosen and Adam C. Abrahms
Yesterday, in a 2-1 decision, the Third Circuit Court of Appeals became the second appellate court to issue a ruling that President Obama’s recess appointments to the National Labor Relations Board (the “Board”) were constitutionally invalid because they did not occur during an “intersession recess” of the United States Senate. The case comes a few months after the D.C Circuit’s ruling in Noel Canning, which similarly held that the recess appointments were invalid. The Third Circuit and D.C. Circuit decisions, taken together, call ...
By Adam C. Abrahms and Steven M. Swirsky
In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized, to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly ...
by: Steven M. Swirsky and D. Martin Stanberry
An NLRB Administrative Law Judge (“ALJ”) has found that two computer usage policies of University of Pittsburgh Medical Center (“UPMC”) violated the National Labor Relations Act (“Act”) because they had an unreasonable tendency to chill employee activities, including union organizing and employee discussions about terms and conditions of employment, protected by Section 7 of the Act.
The policies at issue prohibited employees from using the employer’s email and other electronic messaging systems “in a way that ...
By: Jill Barbarino and Steven M. Swirsky
In a recent decision involving social media posts by non-union employees, as well as employer rules prohibiting the sharing of information about compensation among co-workers and with non-employees, the NLRB affirmed the findings and proposed remedy recommended by a Board Administrative Law Judge, holding that the Facebook posts of three employees of an upscale clothing boutique in San Francisco constituted protected activity under Section 7 of the National Labor Relations Act and the termination of the employees’ for the posts was an ...
By Steven M. Swirsky and D. Martin Stanberry
Will Congress shut down the National Labor Relations Board? In a narrow, 219 – 209 vote this past Friday, the United States House of Representatives passed a bill that would strip the National Labor Relations Board (“Board”) of the authority to take any substantive action until the Supreme Court decides Noel Canning v. NLRB, 2013 WL 276024, (D.C. Cir. 2013) or the Senate confirms a quorum of members to the Board (as constituted, the Senate would have to confirm at least 2 new members to establish a quorum). As we reported, in Noel Caning
by: Adam C. Abrahms, James S. Frank, Kara M. Maciel, and Steven M. Swirsky
President Obama has taken action designed to bolster the National Labor Relations Board’s continuing move to bolster unions and take the National Labor Relations Act further into non-union workplaces. On April 9, 2013, President Obama announced his plan to submit three more nominees to serve the National Labor Relations Board (“NLRB”). If these and the two other pending nominations are confirmed this would bring the NLRB to its full complement of five Members.
These new nominations – who must be ...
by: James S. Frank, Steven M. Swirsky, and D. Martin Stanberry
The Second Circuit Court of Appeals ruled on Wednesday February 27th, in NLRB v. Special Touch Home Care Servs. Inc., 11-3147 (2d.Cir., Feb. 27, 2013) (PDF) that the NLRB erred when finding that 48 home health aides were protected by the National Labor Relations Act (“Act”) when they participated in a strike after affirmatively telling their employer that they would be present for their shifts at their respective patients’ homes during the week of the strike.
While the NLRB had held that the workers actions were ...
Illinois charter schools may be subject to a union organizing drive under federal law pursuant to a recent ruling by the National Labor Relations Board. On December 14, 2012 The National Labor Relations Board (“NLRB”) found that a private, nonprofit corporation that operates a public charter school in Chicago was an employer under Section 2(2) of the National Labor Relations Act (NLRA). Chicago Mathematics & Science Academy Charter School, Inc. and Chicago Alliance of Charter Teachers and Staff, IFT-AFT (359 NLRB 41. This ruling emanated from the ...
By: Allen B. Roberts
I wrote the February 2013 version of Take 5 Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green. In it, I discuss an alternative view of five topics that are likely to impact employers in 2013 and beyond. One topic involved the potential for labor organizing by pop-up unions in break-out units.
Despite some perceptions of cohesiveness and political acumen, influence and wherewithal following the 2012 election cycle, labor unions represent only about 7.3 percent of the private sector workforce in the United ...
by: Adam C. Abrahms, Kara M. Maciel, Evan J. Spelfogel and Steven M. Swirsky
In a time when employers do not receive much good news out of Washington D.C., the U.S. Court of Appeals for the D.C. Circuit may have given some very welcome relief to employers facing issues before the National Labor Relations Board (“NLRB” or “the Board”) in light of recent precedent reversing NLRB decisions. Quoting from early Constitutional authority including The Federalist Papers and Marbury v. Madison, the D.C. Circuit ruled today that President Obama’s “Recess Appointments” of ...
I co-authored an Act Now Advisory on the decision issued by NLRB Administrative Law Judge (ALJ) Joel Biblowitz on January 8, 2013, finding that Quicken Loans’ agreements concerning proprietary and confidential information and non-disparagement unlawfully interfered with these unrepresented employees’ Section 7 rights to engage in concerted and protected activity. The ALJ decision adopts the expansive views of Acting General Counsel Lafe Solomon and further expands the Board’s involvement in non-union workplaces.
A number of cases challenging President Obama’s recess appointments of three of the five members of the National Labor Relations Board (NLRB) on January 4, 2012, are currently working their way through the federal court system. Perhaps the most significant is set to be argued before the DC Circuit tomorrow. Additionally, this past Friday the U.S. Court of Appeals for the Seventh Circuit (through a panel consisting of Judges William J. Bauer, Ilana Diamond Rovner and Ann Claire Williams) heard oral argument from the parties in another NLRB recess appointment case.
On Friday, November 16, I participated in a free 75-minute webinar discussion with Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board. The webinar was moderated by Terence H. McGuire of the Practical Law Company. We discussed:
- Factors that the NLRB considers when deciding whether to prosecute unfair labor practices based on these employment practices.
- Legal considerations surrounding these employment practices besides compliance with the National Labor Relations Act.
- The NLRB’s stance on what is and is not a lawful at will disclaimer.
- Social Media ...
By: Steven M. Swirsky and Paul H. Burmeister
In yet another foray into non-union workplace issues, on October 31, 2012, the Office of the General Counsel of the National Labor Relations Board (“NLRB”) issued a pair of Advice Memoranda regarding similar issues with respect to ‘employment at-will’ policies contained in employee handbooks. (Rocha Transportation, 32-CA-086799 PDF and SWH Corporation d/b/a Mimi’s Café, 28-CA-084365 PDF). At issue in each case was at-will disclaimer language in an employee handbook which prohibits the employer’s representatives ...
2012 has been a year of turmult and shocking developments and 2013 looks to be no different. From at-will agreements to Facebook firings to employer property rights and employee access and more, the NLRB has kept employers on their toes. Stay sure footed by getting an update straight from Acting General Counsel Lafe Solomon and Management Memo Editor Steven Swirsky in a 75 Minute Webinar presented by the Practical Law Company discussing:
- Factors that the NLRB considers when deciding whether to prosecute unfair labor practices based on these employment practices.
- Legal ...
In one of the first rulings by the NLRB in a case involving social media, the Board agreed with the order of the ALJ that the firing of an employee for certain Facebook posts were not protected, concerted activity under the NLRA and the termination did not violate Section 7 of the Act. Karl Knauz Motors, Inc. (PDF)
The employee was a salesman who worked for a BMW dealership in Lake Bluff, Illinois. He posted several pictures and comments on his Facebook page about two recent events concerning his employer. First, the employee complained about the refreshments ...
The National Labor Relations Board (“NLRB”) has ruled that negotiations between the Hotel Bel-Air and UNITE HERE Local 11 were not at impasse when the employer implemented its last, best final offer, which included severance payments to union employees. Hotel Bel-Air, 358 NLRB 152 (September 27, 2012). The NLRB upheld the ALJ’s order for the employer to bargain with the Union and to rescind all the signed severance agreements containing a waiver of future employment with the Hotel Bel-Air.
The Hotel Bel-Air is a luxury hotel located in Los Angeles. The Hotel ...
It seems with each passing month the National Labor Relations Board or its Acting General Counsel opens yet another new front on its assault on non-union employers. A trend has emerged which puts labor law in conflict with standard employment practices. From hire, to control of the workplace and employer property, to the manner post-termination disputes are handled, the NLRB is directing employers to ignore conventional wisdom, and often times other legal mandates, to alter the way they deal with their employees.
Much attention has been given to the NLRB’s more direct pro-union ...
Over the past year the NLRB has issued a series of decisions which, taken together, mark a dramatic shift in the property rights of employers and expand the right of employees seeking to use their employer’s property to organize.
Two decades ago, in Lechmere, Inc. v. NLRB, the U.S. Supreme Court ruled that employers had a right to limit or deny non-employee union organizers access to their property provided the denial was nondiscriminatory and consistent with state law. For almost four decades, following its decision in Tri-County Medical Center, Inc., the NLRB has maintained that ...
It is Employment Law 101 – employment in the United States is generally at-will. Equally elementary to HR professionals and employment counsel is the use of a good, strong at-will policy and/or agreement. So common is the use of at-will policies and agreements that you would be hard pressed to find an employment handbook or an employer that does not make some use of them.
Notwithstanding this universal use, the National Labor Relations Board is poised to target non-union employers which maintain at-will policies or agreements. Although the NLRB has taken several steps to ease the ...
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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