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Labor Relations Today

Category Archives: Federal Court Litigation

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En Banc Eighth Circuit Reverses National Labor Relations Board’s “Sick Day” Jimmy John’s Decision

Posted in Federal Court Litigation, NLRB Decisions, Unfair Labor Practices
On July 3, 2017, the U.S. Court of Appeals for the Eighth Circuit, sitting en banc, rejected the reasoning of an ALJ, the NLRB, and a panel of the Eighth Circuit regarding whether Jimmy John’s employees could hang posters at work challenging the company’s sick-leave policy. The sandwich-shop franchisor’s sick-leave policy prohibited employees from merely… Continue Reading

Second Circuit Upholds NLRB Order Finding Grocer’s No Recording Policy Unlawful

Posted in Federal Court Litigation, NLRB Decisions, Unfair Labor Practices, Workplace Rules
On June 1, the Second Circuit issued a summary order in Whole Foods Market Group, Inc. v. NLRB, affirming the National Labor Relations Board’s order in Whole Foods Market, Inc., 363 NLRB No. 87 (2015), where the Board found that the employer’s rules prohibiting recording of company meetings or conversations in the workplace violated Section 8(a)(1) of… Continue Reading

U.S. Department of Labor Begins Process To Rescind Obama Administration’s “Defective” Persuader Rule Overhaul

Posted in Department of Labor, Federal Court Litigation, Obama Board Reversal, Persuader Rules
Secretary of Labor Alexander Acosta has formally initiated the process for rescission of the 2016 DOL regulations narrowing the “advice exemption” to the LMRDA’s so-called “persuader rule.” The Office of Management and Budget’s website confirms the May 22, 2017 receipt of a DOL directive entitled, “Rescission of Rule Interpreting “Advice” Exemption in Section 203 (c) of the… Continue Reading

Supreme Court Affirms Invalidation of Most of Lafe Solomon’s Tenure as Acting General Counsel

Posted in Federal Court Litigation, NLRB Administration, Presidential Appointments, SCOTUS, White House
The Supreme Court has settled the question surrounding the validity of acting NLRB general counsel Lafe Solomon’s official actions.  Yesterday, in National Labor Relations Board v. SW General, Inc., 580 U.S. –, Case Nos. 14-1107, 14-1121 (Mar. 21, 2017), the Court affirmed the D.C. Circuit’s opinion that Solomon’s continued service in his acting capacity, after President… Continue Reading

Court of Appeals Again Rejects National Labor Relations Board, Finds FedEx Ground Drivers Are Independent Contractors

Posted in Federal Court Litigation, NLRB Decisions
The U.S. Court of Appeals for the D.C. Circuit in a published opinion earlier this month emphasized that it means what it says.  In 2009, the Court held in FedEx I that single-route FedEx drivers in Wilmington, Massachusetts are independent contractors, not employees, and therefore not entitled to the NLRA’s protections. Five years later, despite… Continue Reading

Supreme Court to Decide Class Action Waiver Issue

Posted in Federal Court Litigation, NLRA, NLRB Decisions, SCOTUS, Unfair Labor Practices
The Supreme Court issued an order today agreeing to hear three cases involving the National Labor Relations Board’s holding that class and collective class action waivers violate Section 8(a)(1). According to the Board’s first decision on the matter in D.R. Horton, an “individual who files a class or collective action regarding wages, hours or working… Continue Reading

Labor Relations Today Issues ‘Labor Law 2016: Year in Review’

Posted in Alternative Labor Law Reform, Department of Labor, Division of Advice, Executive Orders, Expedited Elections, Federal Court Litigation, Government Contracting, Government Contracts, House of Representatives, Joint Employer, Legislation, MLA Media, Negotiations, NLRA, NLRB, NLRB Administration, NLRB Decisions, NLRB Rule-Making, Persuader Rules, Presidential Appointments, Remedies, Representation Elections, Right to Work, SCOTUS, Senate, Social Media, State/Local Issues, Unfair Labor Practices, Unions, White House, Workplace Rules
McGuireWoods labor attorneys and the editors of Labor Relations Today are pleased to announce the publication of Labor Relations 2016: Year in Review. In the final year of his two-term tenure, President Barack Obama’s National Labor Relations Board and Department of Labor continued their double-barreled efforts to remake labor law to benefit labor unions. Throughout the year, the agencies… Continue Reading

District Court Permanently Enjoins Department of Labor’s Persuader Rule

Posted in Beyond EFCA: Labor's Agenda, Department of Labor, Federal Court Litigation, Representation Elections, Unions
The United States District Court for the Northern District of Texas has made permanent its June 27, 2016 nationwide preliminary injunction against the Department of Labor’s March 2016 Persuader Rule. The rule would, among other things, require financial reporting and disclosure by employers and their consultants of any agreement or arrangement by which the consultant… Continue Reading

Despite Injunction of the Blacklisting Rule’s Reporting Requirements, NLRB Will Continue to Request ‘Blacklisting Information’ from Employers

Posted in Executive Orders, Federal Court Litigation, Government Contracting, Government Contracts, NLRB, NLRB Administration
As we noted this summer, on July 1, 2016, the National Labor Relations Board issued Memorandum OM 16-23 specifying that it would begin collecting data for a federal database to comply with the Fair Pay and Safe Workplaces Executive Order despite the fact that the final rule implementing the EO had not been approved. Specifically, the… Continue Reading

Federal District Court Enjoins Reporting and Arbitration Requirements in Administration’s Contractor Blacklisting Rules; Allows Paycheck Transparency Provisions to Stand

Posted in Davis-Bacon, Department of Labor, Executive Orders, Federal Court Litigation, Government Contracting, Government Contracts, NLRA, White House
On the eve of its effective date, a federal judge in Texas has enjoined most parts of the Federal Acquisition Regulatory (FAR) Council’s final rule implementing President Obama’s “Fair Pay and Safe Workplaces” executive order.  The court’s Order in Associated Builders and Contractors of Southeast Texas et al. v. Rung et al., Case No. 1:16-cv-00425… Continue Reading

Eleventh Circuit Finds Error in National Labor Relations Board’s “Mixed-Use” Analysis

Posted in Federal Court Litigation, NLRA, NLRB
In a 2-1 decision, the Eleventh Circuit Court of Appeals (the “Eleventh Circuit”) largely upheld the National Labor Relations Board’s (the “Board”) decision that an automobile manufacturer violated the National Labor Relations Act (the “Act”) by 1) maintaining an overly broad rule prohibiting solicitation and distribution and 2) prohibiting employees not on working time from… Continue Reading

D.C. Circuit Scolds NLRB for ‘Bad Faith’, ‘Abusive Tactics’ and ‘Extremism’

Posted in Duty to Bargain, Federal Court Litigation, NLRA, NLRB
The United States Court of Appeals for the District of Columbia Circuit issued a scathing rebuke to the National Labor Relations Board for “abusive tactics and extremism” and ordered the Board to pay an employer nearly $18,000 in legal fees incurred due to the Board’s “bad faith litigation” in Heartland Plymouth Court MI, LLC v.… Continue Reading

Federal Judge Upholds Wisconsin Right to Work Law, But State Court Challenge is Still Pending

Posted in Federal Court Litigation, NLRA, Right to Work, State/Local Issues
In another “chapter in the ongoing, national debate about the role that labor unions play in the modern workplace and the extent to which they may be regulated by both state and federal governments, on Monday, September 26, U.S. District Judge J.P. Stadtmueller entered an order upholding Wisconsin’s right to work law that was enacted in… Continue Reading

D.C. Circuit Judge to NLRB: Stop Tolerating Racist and Sexist Behavior by Strikers

Posted in Federal Court Litigation, NLRB, NLRB Decisions, Picket Line Activity
In a strongly penned concurring opinion, a D.C. Circuit Court of Appeals Judge took the National Labor Relations Board to task on Tuesday for the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. The D.C. court’s decision in Consolidated Communications… Continue Reading

Court Enforces NLRB Investigatory Subpoena Seeking Employment Policies In Unfair Labor Practice Charge Filed by Purported Independent Contractor

Posted in Federal Court Litigation, NLRA, Subpoenas
Judge James C. Dever, III of the Eastern District of North Carolina entered an order in NLRB v. Raleigh Restaurant Concepts, Inc., Case No. 5-15-CV-438-D (Aug. 12, 2016),  enforcing a subpoena duces tecum issued by the NLRB in connection with its investigation of an unfair labor practice charge filed by an independent contractor alleging that Raleigh… Continue Reading

Ninth Circuit Holds NLRB Interim Order Not Subject to Immediate Judicial Review

Posted in Federal Court Litigation, NLRA, NLRB
On July 8, 2016, the Ninth Circuit Court of Appeals (the “Ninth Circuit”) held that a National Labor Relations Board (the “Board”) § 10(k) interim order resolving a dispute between rival unions over which union’s members should perform certain work is not a final agency order subject to federal court review.  Pac. Maritime Assoc. v.… Continue Reading

Federal District Court in Texas Issues Nationwide Injunction Against DOL’s New Persuader Rule

Posted in Department of Labor, Federal Court Litigation, Persuader Rules
Calling the Department of Labor’s new interpretation of its LMRDA Persuader Rule “defective to its core,” the District Court for the Northern District of Texas issued a nationwide injunction on June 27, 2016, against the Final Rule published on March 24, 2016. This ruling in National Federation of Independent Business et al. v. Perez, 16-cv-00066… Continue Reading

First Court Decision Casts Doubt on DOL Persuader Rule, But Declines to Enjoin

Posted in Department of Labor, Federal Court Litigation, Special Interests
The first decision in the three pending lawsuits against the DOL’s overhaul to the LMRDA’s “Persuader” reporting requirements came down yesterday.  The District Court for the District of Minnesota’s decision in Labnet Inc. d/b/a Worklaw Network et al v. U.S. Department of Labor et al.,  Case No. 16-cv-00844 (D. Minn., June 22, 2016), holds that:… Continue Reading

NLRB Finds An Ally: Seventh Circuit Invalidates an Arbitration Agreement’s Class and Collective Action Waiver

Posted in Federal Court Litigation, NLRA, NLRB
On May 26, 2016, the Seventh Circuit issued its decision in Lewis v. Epic Systems Corporation, Case No. 15-2997, holding that an arbitration agreement providing “that covered claims will be arbitrated only on an individual basis” and that employees “waive the right to participate in or receive money or any other relief from any class, collective,… Continue Reading

Three Lawsuits Take First Shots at New DOL ‘Persuader Rule’

Posted in Department of Labor, Federal Court Litigation, Persuader Rules
The Department of Labor’s final rule regarding the advice exemption to the “persuader rule” in the Labor-Management Reporting Disclosure Act of 1959 (LMRDA) is currently facing three lawsuits filed by various law firms, business groups, and associations. The DOL’s new Rule modifies the “advice exemption” by revising the instructions to forms filed by employers (Form LM-10)… Continue Reading

The Battle Over the Status of Uber and Lyft Drivers Continues

Posted in Federal Court Litigation, NLRA, State/Local Issues, Unfair Labor Practices
Uber and Lyft have seen a number of attacks challenging the status of their independently contracted drivers in an effort to force both companies to reclassify and/or treat their drivers as employees. A recent example was a local ordinance enacted in Seattle, Washington, allowing drivers working for ride-hailing companies like Uber and Lyft the right to unionize. Specifically, the ordinance,… Continue Reading

Electrical Subcontractor Cannot Catch a Break from the Eighth Circuit

Posted in Duty to Bargain, Federal Court Litigation, NLRA, NLRB, Unfair Labor Practices
On February 9, 2016, the Eighth Circuit Court of Appeals held that National Labor Relations Board (the “Board”) properly concluded that an electrical subcontractor violated the National Labor Relations Act when it unilaterally changed its employee break policy without affording the employees’ union an opportunity to bargain over the change. Parsons Electric, LLC v. NLRB,… Continue Reading

Eleventh Circuit Court of Appeals Overrules National Labor Relations Board; Holds That Stagehands Are Independent Contractors, Not Employees

Posted in Federal Court Litigation, NLRA, NLRB
Vacating a National Labor Relations Board (the “Board”) decision that a stagehand referral service violated the National Labor Relations Act by refusing to bargain with its stagehands’ union representative, on February 3, 2016, the Eleventh Circuit Court of Appeals held that the stagehands were independent contractors and not employees of the referral service.  In Crew… Continue Reading

Arizona Federal Court Grants § 10(j) Injunctive Relief to Stop Employer’s Alleged Labor Law Violations

Posted in Federal Court Litigation, NLRA, Unfair Labor Practices
In a April 30, 2014 General Counsel Memorandum, National Labor Relations Board (the “Board”) General Counsel Richard Griffin declared that his office would expand the pursuit of injunctions in federal court against employers in connection with union organizing and bargaining efforts. In particular, the Memorandum directed the Board’s regional offices to pursue aggressively § 10(j)… Continue Reading