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Category Archives: Rulemaking

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Update: NLRB Final Rule Governing Employee-Status of Student Workers May Issue As Soon As September 2020

By Steven Porzio and Elizabeth Dailey on Posted in NLRA, NLRB, Rulemaking, Section 2(3), Section 7
As we previously reported, the NLRB published a Notice of Proposed Rulemaking (NPRM) in September 2019 regarding the employee-status of student workers at private colleges and universities. Under the proposed rule, the NLRB seeks to establish that undergraduate and graduate students performing services for compensation, including teaching and research, in connection with their studies are … Continue Reading

NLRB Issues Final Rule Reworking Union Election Procedures

By Mark Theodore, Joshua Fox and Scott Tan on Posted in NLRA, NLRB, Rulemaking
Although, like everyone else, the personnel at the NLRB have been consumed with the impact of the COVID-19 pandemic on daily operations, including the ability of its Regional Offices to function and serve the public, the Board nevertheless continues moving forward on non-COVID-19 matters as well. On March 31, 2020, the NLRB announced it had … Continue Reading

NLRB Proposes Rule to Settle Once and For All: Student Teaching and Research Assistants Are Not “Employees”

By Paul Salvatore, Steven Porzio and Laura Franks on Posted in NLRA, NLRB, Rulemaking, Section 2(3), Section 7
As anticipated, today the National Labor Relations Board published a Notice of Proposed Rulemaking (“NPRM”) proposing a regulation which would establish that students at private colleges and universities who perform any services related to their studies for compensation, including teaching and research, are not “employees” within the meaning of Section 2(3) of the National Labor … Continue Reading

NLRB Announces Three Proposed Rulemaking Amendments Aimed at Overhauling Union Election Procedures – With More to Come!

By Mark Theodore, Joshua Fox and Meika Freeman on Posted in Decertification elections, NLRA, NLRB, NLRB Election Rules, Representation Elections, Rulemaking
The National Labor Relations Board published a Notice of Proposed Rulemaking (“NPRM”) on Monday, August 12, 2019, proposing three amendments to its current rules and regulations aimed at addressing representation election procedures – with potentially more to come.  The NLRB made sweeping changes to the election procedures through rulemaking in 2014, which have been criticized as … Continue Reading

Another Obama-Board Decision Overturned: NLRB Reverts to Traditional Common-Law Agency Independent-Contractor Test and Foreshadows Potential Rulemaking

By Joshua Fox, Meika Freeman and Michael Lebowich on Posted in Collective Bargaining, NLRA, NLRB, Rulemaking, Section 7
On January 25, 2019, in a long-anticipated decision, the NLRB overturned another Obama-Board decision, FedEx Home Delivery, 361 NLRB 610 (2014), which modified the test for whether an individual is an “employee” or an independent contractor under the NLRA (read about that decision here).  The Board, in a 3-1 decision (Chairman Ring and Members Kaplan … Continue Reading

Concluding the 2016 Persuader Rule Changes “Exceeded Authority” of the LMRDA, DOL Rescinds Them

By Mark Theodore on Posted in Advice Exemption, Department of Labor, Labor Relations Consultants, Persuader Rules, Rulemaking
The Department of Labor fully rescinded the 2016 changes made to the Persuader Rules.  The DOL concluded that the 2016 rule changes “exceeded the authority of the Labor-Management Reporting and Disclosure Act (LMRDA)” because they “impinged on attorney-client privilege.  The action rescinding the rule was announced in a July 17, 2018 News Release .  In announcing the change … Continue Reading

NLRB Considers Rulemaking to Address Hotly-Contested Joint-Employer Standard

By Mark Theodore, Joshua Fox and Dana N. Berber on Posted in Joint Employer, NLRA, NLRB, Rulemaking
As we previously reported here, here and here, the NLRB’s “joint employer” standard has vacillated over the last several years, and currently remains in flux.  For historical reference, the NLRB expanded the scope of joint-employment in 2015 in Browning-Ferris, 362 NLRB No. 186 (2015), and then reverted to a more rigorous showing that had been … Continue Reading

NLRB Hints That “Ambush” Election Regulations May Be Rescinded

By Mark Theodore on Posted in Bargaining units, NLRA, NLRB, NLRB Election Rules, Representation Elections, Rulemaking
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

17 Year Old Ruling In Representation Case Can Preclude New Claim For Employees, Divided NLRB Rules

By Mark Theodore on Posted in Bargaining units, NLRA, NLRB, NLRB Election Rules, Non-Union employers, Representation Elections, Rulemaking, Specialty Healthcare
Of all the changes to the law the NLRB has made in the last several years, the most significant involve how the agency determines bargaining units.  For example, the NLRB’s decision in Specialty Healthcare drastically altered the manner in which bargaining units were determined by the Regional Directors and the NLRB.  Also, the NLRB’s ambush election rules also … Continue Reading

NLRB Imposes Extraordinary, Tough Remedies for Egregious and Pervasive Violations

By Ronald Meisburg on Posted in NLRA, NLRB, Rights Poster
In a landmark decision, the National Labor Relation Board has imposed an array of extraordinary remedies against an employer for what the NLRB described as “egregious and pervasive violations” of the National Labor Relations Act.  Pacific Beach Hotel, 361 NLRB No. 65 (2014). As the basis for its imposition of the remedies, the NLRB stated: … Continue Reading

They’re Ba-ack: NLRB to Re-Propose Election Regulations

By Ronald Meisburg on Posted in NLRA, NLRB, Representation Elections, Rulemaking
As expected, the NLRB has announced that it is again proposing regulations to amend its representation case election procedures.  A copy of the Notice of Proposed Rulemaking submitted to the Federal Register for publication can be viewed here.  The proposed regulations appear identical to those the Board attempted to promulgate in 2011. At that time the Board … Continue Reading

The NLRA Rights Poster Lives on Through Other Means

By Ronald Meisburg on Posted in NLRA, NLRB, Rights Poster
The NLRB’s decision not to pursue Supreme Court review in the NLRA rights poster cases  (which, depending on what happened behind the  scenes, may have in reality been a decision by the Solicitor General of the United States) should not have come as a complete surprise.  The likelihood of review being granted was small, and … Continue Reading

One Step Backward for NLRB Election Rules

By Ronald Meisburg on Posted in NLRB, Representation Elections, Rulemaking
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

NLRB Rights Poster Rule Gets Torn Down Again, This Time By Fourth Circuit

By Mark Theodore on Posted in NLRA, NLRB, Non-Union employers, Rights Poster, Rulemaking, Uncategorized
Of the many actions by the NLRB during the last few years, one of the most contentious has been its attempt to require all private employers falling under its jurisdiction to post a notice informing employees of their rights to unionize.  The notion of posting such a notice was considered bad enough, but when the NLRB … Continue Reading

DC Court of Appeals Invalidates NLRB Rights Poster Holding Regulation Violates NLRA

By Mark Theodore on Posted in NLRA, NLRB, Non-Union employers, Rights Poster, Rulemaking, Section 8(a)(1), Unfair Labor Practices
A federal appeals court today rebuffed the NLRB’s attempt to require all employers under its jurisdiction to post in a “conspicuous” place in the workplace a poster that informs employees of their rights under the National Labor Relations Act.   The NLRB’s rule has been controversial from the start as it didn’t just require the posting … Continue Reading

U.S. Government Formally Seeks Supreme Court Review Of Recess Appointment Case

By Mark Theodore on Posted in NLRB, Rulemaking
As noted here earlier, the government announced its intention to seek Supreme Court review of the DC Circuit decision which held that the President’s recess appointments to the NLRB were unconstitutional.  The 138 page document NLRB v. Noel Canning, A Div. of Noel Corp., Cert Petition (April 24, 2013) was filed with the U.S. Supreme Court yesterday. … Continue Reading

Update: NLRB Seeks U.S. Supreme Court Review Of Recess Appointments

By Mark Theodore on Posted in Duty to furnish information, NLRA, NLRB, Recess appointments, Rulemaking, Witness statements
The NLRB announced today that the agency would seek U.S. Supreme Court review of the D.C. Circuit decision in Noel Canning, which ruled that the President’s recess appointments made last year (and perhaps in the years prior) were unconstitutional.  The decision of the appeals court has cast a great deal of uncertainty over past and current … Continue Reading

Ambush Election Rules Fall Into Noel Canning Abyss As Court Puts Hold On Decision

By Mark Theodore on Posted in NLRA, NLRB, Recess appointments, Representation Elections, Rulemaking
The fallout from Noel Canning has been felt far and wide.  The DC Circuit Court’s January 25, 2013 decision certainly put all NLRB decisions made since January 4, 2012 (the date Members Block and Griffin received their recess appointments) in jeopardy.  All cases on appeal to the DC Circuit involving panels which included Block and Griffin have … Continue Reading

Federal Court Invalidates Ambush Election Rules, Dealing NLRB Yet Another Setback

By Mark Theodore on Posted in NLRB, Rulemaking
The NLRB’s agenda for bringing about massive change despite severe opposition continues to be stalled by legal challenges.  Last month, the Board’s employee rights poster notice rule was invalidated.  Now, a month later, a federal judge in the District of Columbia has ruled that the ambush election rules, which were adopted in December, and went … Continue Reading

Micro Union Case Hits Federal Court Of Appeals

By Mark Theodore on Posted in Bargaining units, NLRA, NLRB, Non-Union employers, Representation Elections, Rulemaking, Section 9(b), Section 9(c)(5)
One of the NLRB’s most sweeping decisions in decades, Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26, 2011).pdf, has reached a federal appeals court, as the employer seeks to have the decision overturned.  As we have previously discussed, the Board in this case established the micro union standard, where the bargaining unit sought by a … Continue Reading

NLRB Rights Poster Requirement Temporarily Barred By Court – Posting No Longer Required On April 30

By Mark Theodore on Posted in Rights Poster, Rulemaking
A federal appeals court has barred the NLRB’s ability to require employers to post the employee rights poster while litigation over the legality of the rule continues.   As we previously discussed, a Federal District Court in South Carolina ruled that the NLRB lacked authority to issue the rule.  This occurred after another Federal Court … Continue Reading

Handing Employers A Significant Victory, Federal District Court Strikes Down NLRB Rights Poster Requirement

By Mark Theodore on Posted in NLRA, NLRB, Rights Poster, Rulemaking
Mid-April is normally a gloomy time as people prepare to file tax returns.  There is some cause for celebration, though, as a federal district judge in South Carolina today (Friday the 13th of all days), issued a ruling striking down in its entirety as unlawful the NLRB’s requirement that employers post the so-called employee rights notice … Continue Reading

Court Strikes Down Portions Of NLRB Notice Posting Rules

By Mark Theodore on Posted in Employer policies, NLRA, NLRB, Protected activity, Representation Elections, Rights Poster, Rulemaking, Section 7, Section 8(a)(1), Unfair Labor Practices
A federal judge in the District of Columbia handed employers a significant partial victory in the ongoing skirmish over the NLRB’s attempts to require all employers under its jurisdiction to post a notice of employee rights.  As we have noted previously, the NLRB postponed the original November 14, 2011 compliance date, only to postpone it … Continue Reading
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