Labor Relations Update
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One Step Backward for NLRB Election Rules

The NLRB has agreed to voluntarily dismiss its D.C. Circuit appeal in the so-called “ambush” election rules case.  The voluntary dismissal of the appeal effectively renders the Board’s previously promulgated election rules a dead letter.  But this may be a case of one step backward, two steps forward, for the Board. The case was on appeal from a federal district court decision holding … Continue Reading

D.R. Horton and the Doctrine of Non-Acquiescence

Today’s decision by the U.S. Court of Appeals for the Fifth Circuit in D.R. Horton, Incorporated v. National Labor Relations Board, is a victory for employers who seek to channel work related disputes (other than NLRB charges) into an arbitration system which does not permit class action claims in either the arbitration or in court.  But the … Continue Reading

Griffin Confirmed as NLRB General Counsel

The United States Senate has confirmed Richard Griffin to be General Counsel of the National Labor Relations Board, giving the Board its first confirmed General Counsel in over three years, probably the longest time that the Board has gone without a confirmed General Counsel in its seventy-eight year history.  NLRB Chairman Mark Pearce issued the following … Continue Reading

Furloughed NLRB Employees Return to Work — Will GC Nominee Griffin be Next?

On the same day that furloughed federal government employees are returning to work, it is being reported that a roll call vote will be scheduled in the Senate to invoke cloture (i.e., end debate) on the nomination of Richard Griffin to be General Counsel of the NLRB.  The vote is reportedly scheduled for 5:30 p.m. on Monday, Oct. 28, 2013.  We assume that cloture … Continue Reading

NLRB Closed Per Request?

Give the government long enough, and eventually it responds to the will of the people.  In 2007 pickets demanded that the National Labor Relations Board be closed.  You can see the picture here.  Now, a few years later, these pickets have at least part of their wish.  Along with most of the rest of the … Continue Reading

I Just Want to Testify

I had the opportunity last week to testify before the U.S. House of Representatives Committee on Education and the Workforce, Subcomittee on Health, Education, Labor and Pensions.  The subject of my testimony was “What to Look for from the New NLRB.”  A copy of my written testimony is here, and I trust readers will find it of interest. With … Continue Reading

Opening Salvo

The NLRB has filed its opening Supreme Court brief in the Noel Canning case, in which the validity of the President’s January, 2012 recess appointments of former, putative NLRB members Richard Griffin and Sharon Block are at issue.  Included as an appendix to the brief is an exhaustive list of intra-session recess appointments, going back to President Andrew Johnson … Continue Reading

Overtaken by Events

A few weeks ago we blogged about consolidated cases pending in the U.S. Court of Appeals for the District of Columbia Circuit, in which the petitioners were seeking writs of mandamus or prohibition, to stop the NLRB from issuing further decisions unless and until it had a properly appointed quorum.  The cases were scheduled for oral … Continue Reading

Sixth Circuit Upholds Board’s Decision in Specialty Healthcare

In the first judicial challenge to the NLRB’s Specialty Healthcare decision, the U.S. Court of Appeals for the Sixth Circuit has upheld the Board. In Specialty Healthcare the Board held that it will find a petitioned for unit appropriate where the unit is made up of (i) an identifiable group of employees (ii) who share a community of interest with … Continue Reading

NLRB Advice Memo Pulls Together Principles Applied in Evaluating Employer Work Rules and Social Media Policies

A 2012 Advice Memo from the National Labor Relations Board’s (“NLRB”) General Counsel was recently publicly released in response to a Freedom of Information Act request. While the Advice Memo applies the long-standing framework used by the NLRB to evaluate the lawfulness of workplace rules more generally, it is noteworthy because it addresses a number of hot … Continue Reading

What Happens Now?

How will the deal reached in the Senate regarding NLRB nominations impact the recess appointment dispute in the Noel Canning case pending at the U.S. Supreme Court, and the many other cases presenting the issue pending in the federal courts of appeals and at various stages before the Board?  Below are some common questions and answers. Q.  When will the new Board … Continue Reading

Let’s Make a Deal!

Updated 5:21 p.m. Reportedly there is a tentative deal between Republicans and Democrats in the U.S. Senate which will avoid the so-called “nuclear option” of eliminating filibusters of certain Presidential nominations.  We do not have all the details, and it remains to be seen how it will play out, but here is what we have … Continue Reading

Despite Supreme Court’s Grant of Review in Two Important Labor Cases, the Action in the Short Term is in the DC Circuit

It came as no surprise to most labor practitioners this week that the Supreme Court granted certiorari to review the U.S Court of Appeals for the District of Columbia Circuit’s decision in NLRB v. Noel Canning, No. 12-1281.  That case, of course, involves the validity of the President’s recess appointments of three NLRB members in January, 2012 and, … Continue Reading

Third Circuit Holds Former NLRB Member Becker’s Recess Appointment Invalid, Vacates NLRB Decision Made In August, 2011

The United States Court of Appeals for the Third Circuit has held that the President’s recess appointment power is limited to intersession recesses, i.e., those recesses which occur (if they occur at all) between sessions of the Congress.  In so doing, it held the March, 2010 recess appointment of former NLRB member Craig Becker to … Continue Reading

No Surprises in Senate Committee Hearing on NLRB Nominees

There were no real surprises at today’s Senate HELP Committee’s hearing on President Obama’s five NLRB member nominees. The Senate Committee members agreed that the nominees were well qualified for the jobs, and thanked them for their willingness to undertake public service.  The nominees spoke about their backgrounds, their desire to apply the law as … Continue Reading

General Counsel’s Division of Advice Issues Helpful Guidance on Confidentiality Rules in Workplace Investigations

As we reported here, in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the NLRB reviewed an employer’s blanket policy of requiring witnesses to maintain confidentiality during workplace investigations.  The Board found that such a policy chilled the right of employees to engage in the protected concerted activity … Continue Reading

The End of an Error

Unnoticed and with no fanfare, the Board brought the two member era to a close with its adoption of the last of the two member Board decisions, The Fremont-Rideout Health Group, 359 NLRB No. 51 (January 15, 2013).  The Board adopted the previous decision in the same case, reported at 354 NLRB 453, which had … Continue Reading

NLRB Decision Complicates Investigations in the Workplace

Employers routinely conduct investigations of workplace misconduct or other incidents.  When doing so, many will direct employee witnesses or complainants not to discuss the investigation with other employees.  There are a number of legitimate reasons for this, all aimed at protecting the integrity of the investigation and facilitating the search for the truth.  A recent … Continue Reading

Court Upholds Non-Employee Property Access Rights

In a decision affirming the National Labor Relations Board, the U.S. Court of Appeals for the District of Columbia Circuit has ruled that employees of a contractor working for a contract restaurant operator located in another employer’s hotel/casino, have a right to pass out handbills inside the hotel/casino at the entrance to the restaurant.  NewYork-New … Continue Reading

A Heaping Helping of Bad Law and a Side of Full Disclosure

In one of its last rulings before Member Becker’s recess appointment ended, the National Labor Relations Board (“NLRB”) has held that individual agreements between an employer and an employee covered by the National Labor Relations Act (“NLRA”), which require the arbitration of employment-related claims arising under other federal and state statutes, but do not allow … Continue Reading
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