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
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
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
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 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
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
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
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
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
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
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 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
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
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
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
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
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
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
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
When bargaining over an agreement, it is common to hear union representatives ask “why do we need such elaborate language in an agreement? We are always reasonable.” To which, the company usually responds, “We think you’re nifty but the next person holding your job may not be as reasonable; better to have it in writing … Continue Reading
The advent of social media resulted in a feverish effort by the NLRB to keep up with new technology. In reality, the legal standard for evaluating whether conduct is protected concerted activity did not change. Rather, all the excitement was over the fact employees were being punished for things they said on social media, which was … Continue Reading
We are on the verge of the Board majority changing for the first time in approximately a decade. The President’s two appointees, if confirmed, will bring the Board up to a full five members. After the new members are seated we likely will see big changes to the law. In the meantime, the Board continues to … Continue Reading
Labor disputes are passionate affairs. Workplace grievances elicit all sorts of strident behavior. When the dispute involves a group of employees, the effect can become magnified. The exact point at which the stridency of an employee’s behavior becomes unprotected is not always apparent, and like so much else in labor relations, the line changes with the Board’s … Continue Reading
When an employer and a union sit down to bargain they often agree to ground rules for how negotiations are to be conducted. A common ground rule, for example, is for the parties to agree to address “non-economic” items before addressing economic proposals. Other ground rules include things like confidentiality of negotiations (becoming increasingly rare as unions want to take their … Continue Reading
