Labor Relations Update

Category Archives: NLRB

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Gridlock Broken: Senate Confirms John Ring as Newest Member of NLRB

By a vote of 50 to 48  the U.S. Senate confirmed Republican John Ring as a Member of the National Labor Relations Board, giving the agency a full five member complement.  Member Ring, whose term expires December 16, 2022, takes the seat previously held by Chairman Miscimarra. The addition of Member Ring means, of course, that the … Continue Reading

Unicorn Sighting: NLRB Overturns ALJ Credibility Determination

As we have seen, there are few things that can be counted on in labor relations.   Oftentimes, several experts look at the same problem and come to vastly different conclusions (here, here and here are some examples).  What is (almost) guaranteed, however, is that the NLRB rarely disturbs the determinations made by an Administrative … Continue Reading

Impulse Control? NLRB Finds Employee’s Misconduct To Be Deliberate and “Predetermined” and Not Protected

The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development, remember that this agency had scores of decisions overturned for lacking a proper quorum only to wait, quietly, and … Continue Reading

ABOUT FACE! Under Pressure, NLRB Vacates Joint Employer Standard and Returns to Browning-Ferris

In an unexpected and critical turn of events, after extensive political pressure, the NLRB, sitting as a three-member panel comprised of Chairman Kaplan and Members Pearce and McFerran, vacated last year’s decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017) due to Member William Emanuel’s participation in the decision. Prior to … Continue Reading

Turns Out Attempting To Insert New Term Into Collective Bargaining Agreement Not Agreed To In Negotiations Violates The Law…Who Knew?

As we have noted previously, the make-up of the Board currently stands at four out of five total members, divided evenly between two warring factions making it pretty much impossible to change the law which requires a majority.  It also means the precedent the new General Counsel has highlighted will not be reviewed until a … Continue Reading

NLRB Reverses Information Request Decision…After Court Reverses Board Decision

December saw a flurry of decisions (discussed here, here, here and here) by the NLRB as it briefly held a full complement.  The Board currently has only four members and so law-changing decisions are less likely to occur until a new member is confirmed. Board cases still proceed through the courts.  Sometimes, as we have seen here and here, a federal … Continue Reading

NLRB Restores Ability Of ALJs To Accept Settlement Offers Over Objection of Charging Party and General Counsel- Overrules One Year Old Precedent

In the last few years, December has been a time of change at the NLRB.  The last few Decembers have seen precedent overturned and other sweeping decisions issue from the Board. This December is no different.  With Chairman Miscimarra’s term ending on December 16, a flurry of decisions issued.  We saw the micro-unit, joint employer … Continue Reading

A Return to Clarity: Traditional Joint Employer Test Reinstated

As we noted last week, one of the more controversial Obama-Board rulings expanding joint employer liability was overruled this past week.  In a widely-predicted 3-2 decision (Miscimarra, Kaplan, Emanuel), the NLRB, in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), reinstated the traditional standard that had been followed for more than 30 years. Under … Continue Reading

“Micro-Units” Eliminated: NLRB Overturns Specialty Healthcare

Adding to the list of falling precedents in the waning days of Chairman Miscimarra’s term, on Friday, the NLRB reversed another of the seminal decisions of the Obama-Board when it overruled the highly controversial Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011) decision.   The 3-2 decision in PCC Structurals, Inc., 365 NLRB … Continue Reading

On A Roll: Board Finds No Bargaining Obligation Attaches to Unilateral Actions Consistent with Past Practice

On the eve of Chairman Miscimarra’s departure, the Board has been churning out decision after decision, many of them reversing precedents from the last 8 years. Today, the NLRB, in Raytheon Network Centric Systems, 365 NLRB No. 161 (December 15, 2017), returned to the longstanding law of the NLRB that there is no duty to … Continue Reading

Handbook Wars – Common Sense Returns NLRB Overhauls Standard for Legality of Work Rules

We have noted many times over the years how the NLRB’s zeal to review employer policies, or more correctly, fragments of employer policies, for lawfulness has led to nettlesome issues that rarely, if ever, involve actual employees.  The results have been absurd and have raised an entire cottage industry of attacks on language by unions … Continue Reading

Here We Go: The Full Board Finally Starts to Make Its Mark

 NLRB Reverses Precedent on Joint Employer Liability and Standard Governing Employee Handbooks This afternoon, just two days prior to the end of Chairman Philip Miscimarra’s term, the NLRB issued a pair of 3-2 decisions overruling significant precedent regarding joint-employer status and the legal standard governing whether workplace rules violate the exercise of Section 7 rights … Continue Reading

NLRB Hints That “Ambush” Election Regulations May Be Rescinded

Things are moving fast and furiously at the NLRB.  Last week we saw the new General Counsel issue a sweeping memo which rescinded many policy guidelines and initiatives of his predecessor and highlighted the Board precedent from the last eight years that may be overturned. This week the NLRB posted a Request For Information on its … Continue Reading

NLRB GC Boldly Defines Direction of Board Prosecution in New GC Memo

The new NLRB General Counsel Peter Robb has been fast at work.  A short two weeks after being sworn in on November 17, 2017, the new General Counsel issued a memorandum making clear his intention to re-examine much of the legal precedent that was changed during the last 8 years,–and to undo many other initiatives … Continue Reading

Pair of NLRB ALJ Decisions Find Unions Violated NLRA

It is mid-November, and the Board is at a full complement, and even has a new General Counsel.  While we haven’t seen anything significant (or really, anything at all) come out of the newly constituted Board we know the new members are feverishly working on getting some decisions out.  The full complement of the Board will last only a few … Continue Reading

NLRB Gains a New General Counsel With Senate Confirmation of Peter B. Robb

By a vote of 49 to 46, the U.S. Senate confirmed Peter B. Robb as the General Counsel of the NLRB.  Mr. Robb, who replaces former General Counsel Richard Griffin, is the 33rd person to hold the position since the NLRA was passed in 1935.  We have previously discussed how the newly constituted Board is likely to change … Continue Reading

The Devil Is In the Details: New Board Members Likely To Change Law In Nuanced Ways

The end of September in most years sees a spate of new NLRB decisions, sometimes dozens, issued on or about September 30, to coincide with the end of the agency’s fiscal year.  Not so this past September 30 because of the recent changeover from a majority of Democrat Board Members to a majority of Republican … Continue Reading

Senate Confirms Appointment of William J. Emanuel to NLRB; Board Has Full Complement,- For Now

In a 49-47 vote today, the Senate confirmed William J. Emanuel’s appointment to the NLRB.  Once Mr. Emanuel is sworn in, it will be first time since 2015 that the NLRB has had a full five members.  Before 2015, years of gridlock often saw the Board at less than full strength, which resulted in all sorts of mayhem, … Continue Reading

NLRB Ditches Effort To Expand Weingarten Rights to Non-Union Workplaces

Since the change in Presidential administrations, the main topic has turned to what rules will a newly constituted NLRB change?  With the addition of Marvin E. Kaplan the Board now has four members, which makes undoing some of the past few years a difficult task.  But a four member Board also means there likely will be … Continue Reading

NLRB: Employer’s Side Letter Explaining NLRB Notice Breached Settlement Agreement and Warranted Default Judgment

One of the fundamental pillars of any remedy doled out by the NLRB is the agency’s  requirement that the employer (or union) post a “Notice to Employees,” a bright blue poster detailing the misdeeds of the charged party.  Such a Notice is required to be posted as a result of a finding of an unfair … Continue Reading

NLRB’s Enforcement of Secondary Boycott Restrictions Does Not Place Union Agent in Involuntary Servitude Nor Does It Encroach on Union’s Religious Freedom

Labor Day is upon us.  It is fitting, therefore, to enter the weekend with another case that exemplifies the bizarre world of labor relations.  Like the case of the human resource manager who turned on his employer, or the nurse who felt her union activity protected her in screaming confrontations, we continue to see new … Continue Reading

NLRB’s Attempt To Incrementally Expand Weingarten Rights Rebuffed By Federal Appeals Court

The NLRB suffered a setback this week when its interpretation of Weingarten rights was rebuffed by the D.C. Court of Appeals.  This is the same court that recently declared the agency was acting more as an “advocate than adjudicator” in a case involving access to an employer’s premises. Weingarten, which derives its name from the United … Continue Reading

Divided NLRB Rules Employer Policy Protecting Customer Information Is Lawful

Employers can prohibit the use by employees of the names, social security numbers and credit card numbers of customers in furtherance of organizational activities.  If this seems like it should have been a foregone conclusion, a recent case from the NLRB shows how the agency’s continued parsing of employer policies could easily have turned this notion on its … Continue Reading

NLRB Gains A New Member As Marvin E. Kaplan Is Sworn In

The NLRB announced today that Marvin E. Kaplan was sworn in as the agency’s newest Board member.  Member Kaplan’s term expires August 27, 2020.  The Board complement now stands at four of five members.  Congress delayed confirmation of the President’s other appointee, William Emanuel, until at least September.  Assuming Mr. Emanuel is confirmed when Congress returns … Continue Reading
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