Management Memo

In its long awaited decision in Mark Janus v. American Federation of State, County and Municipal Employees, the United States Supreme Court clearly and unequivocally held that it is a violation of public employees’ First Amendment rights to require that they pay an “agency fee” to the union that is their collective bargaining representative, to cover their “fair share” of their union representative’s bargaining and contract enforcement expenses. The Janus decision overturns the Court’s own 1977 decision in Abood v. Detroit Board of Education, which had found ...

Featured on Employment Law This Week: General Counsel Peter Robb has issued a memo to National Labor Relations Board regional directors that offers guidance in applying the Board’s Boeing decision when considering the legality of rules.

Robb instructs the regional offices to refer cases when there is uncertainty to the Board’s Division of Advice for direction. The General Counsel memo that was issued at the beginning of June provides very specific guidance regarding the placement of work rules into each of the three categories. The memo summarizes each of the three ...

In Epic Systems Corp. v. Lewis  (a companion case to NLRB v. Murphy Oil USA and Ernst & Young v. Morris), the U.S. Supreme Court finally and decisively put to rest the Obama-era NLRB’s aggressive contention that the National Labor Relations Act (NLRA) prevented class action waiver in employees arbitration agreements, finding such waivers are both protected by the Federal Arbitration Act (FAA) and not prohibited by the NLRA. In its 5-4 decision, the Court explained that the NLRB’s interpretation of the FAA was not entitled to deference because it is not the agency charged by Congress ...

On Wednesday, the Senate narrowly confirmed John Ring, a management-side labor attorney from Morgan Lewis & Bockius LLP, to the National Labor Relations Board (“NLRB” or the “Board”).  With this vote, Ring fills the last remaining open seat on the Board, which was previously held by former Chairman Philip Miscimarra.  Ring’s term will expire on December 16, 2022.  The confirmation vote of 50-48 was largely down party lines, with only two Democrats voting in favor of Ring’s confirmation.  The strong opposition from the Democrats is likely due to the perceived efforts of the ...

Featured on Employment Law This Week: NLRB Vacates Hy-Brand Joint-Employer Decision

The NLRB’s Browning-Ferris test is once again the law of the land -- A 3-member panel has reversed the Board’s December Hy-Brand decision, which had nixed the Browning-Ferris joint-employer test, and returned to a “direct control” standard. The reversal comes after an inspector general report that found that Member William Emanuel should have recused himself. The Browing-Ferris test considers a company a “joint-employer” if it has the right to exercise either direct or ...

Featured on Employment Law This Week: Should the misclassification of an employee as an independent contractor be found to violate the NLRA?

The National Labor Relations Board is seeking amicus briefs on whether the misclassification of an employee as an independent contractor should be found to violate the National Labor Relations Act. Former NLRB general counsel Richard Griffin argued that misclassification violates the NLRA because it impacts the rights that employees have under the Act, including the right to engage in concerted activities with co-workers, join a union ...

On February 26, 2018, in a unanimous decision by Chairman Marvin Kaplan and Members Mark Pearce and Lauren McFerren, the National Labor Relations Board (“NLRB” or the “Board”) reversed and vacated its December 2017 decision in Hy-Brand Industrial Contractors, Ltd. (“Hy-Brand”), which had overruled the joint-employer standard set forth in the 2015 Browning-Ferris Industries (“Browning-Ferris”) decision. The decision followed the release of a finding that a potential conflict-of-interest had tainted the Board’s 3-2 vote. What this means, at least for ...

Resolving a split between circuits, this week the United States Supreme Court, in CNH Industrial v. Reese rejected what has come to be known as the Yard-Man standard, and reaffirmed that collective bargaining agreements must be interpreted according ordinary contract principles.  Although the Supreme Court has long held ordinary cannons of contract construction apply to collective bargaining agreements, some federal courts developed a specialized set of inferences, known as the Yard-Man inferences, which allowed them to read beyond the actual contract terms, to reach what ...

Featured on Employment Law This Week:  General Counsel Peter Robb could be signaling a shift at the NLRB.

Robb has reportedly suggested structural changes that could establish a new layer of management between the General Counsel and the field. These reports come as the NLRB seeks to adjust to cuts to its budget and a decline in case filings. If implemented, the changes could remove authority from the Regional Directors and shift more decision-making to the GC. Sources report that some changes are likely before the new budget year next October.

Watch the segment below and read our ...

In the months following Donald Trump’s inauguration, those interested in the National Labor Relations Board (“NLRB” or “Board”) waited anxiously for the new President to fill key positions that would allow the Board to reconsider many of the actions of the past eight years. Over the last six months, the Board has begun to revisit, and overrule, several union-friendly and pro-employee Obama-era Board decisions. The Board’s new General Counsel has also given clear guidance as to where else employers can expect to see his office pursue further changes in how the National ...