Management Memo

[caption id="attachment_1697" align="alignright" width="150"] Philip Miscimarra. Credit: NLRB.gov.[/caption]

On April 24, 2017 President Trump designated Philip Miscimarra as Chairman of the National Labor Relations Board (NLRB or Board). The move follows the President’s late January designation of Board Member Miscimarra as Acting Chairman.

A Republican Chair

Miscimarra, a management-side labor lawyer and a Republican, was nominated to serve on the Board by then President Obama in 2013 and was confirmed by the Senate for a four year term that continues through ...

In recent years, the Obama Board has adopted some extreme views on Section 7 rights, which has pushed its jurisdiction into uncharted territories and left non-unionized employers vulnerable to attack. Two of the most notable examples are (1) Murphy Oil U.S.A., Inc. and D.R. Horton, Inc., in which the Board invalidated arbitration agreements with class action waivers and effectively ignored a mountain of legal precedent to the contrary, including the Supreme Court’s repeated affirmations of such agreements and the Board’s own longstanding jurisprudence and (2) Banner ...

On March 21, 2017, the National Labor Relations Board (“NLRB” or “Board”) found that a Teamsters local violated Section 8(b)(1)(A) of the National Labor Relations Act (“Act”) by failing to provide sufficient information about the financial expenditures of the local and its affiliates to two workers employed in a bargaining unit who exercised their rights to object to paying union dues and fees pursuant to Communications Workers v. Beck, 487 U.S. 735 (1988).

Teamsters Local 75 – Schreiber Foods

In Teamsters Local 75, affiliated with the International Brotherhood of ...

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 ...

On February 16, 2017, tens of thousands of individuals across the country stayed home from work as part of the “Day Without Immigrants,” a social activism campaign organized in response to President Donald Trump’s recent executive orders concerning immigration and increased enforcement, deportation actions, and raids by Immigration and Customs Enforcement. The “Day Without Immigrants” action was apparently not coordinated by any centralized organization, but was promoted on social media and by word-of-mouth just days before.

Now, the same groups that organized ...

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 ...