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Labor Relations Today

Category Archives: Federal Court Litigation

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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

Tenth Circuit Affirms National Labor Relations Board’s Decision to Disregard Interim Earnings When Calculating Backpay Award.

Posted in Federal Court Litigation, NLRA, Remedies
On January 20, 2016, the Tenth Circuit Court of Appeals affirmed the National Labor Relations Board’s (the “Board”) decision to disregard interim earnings when calculating the backpay awards for employees whose injuries fell short of unlawful termination. NLRB v. Community Health Services, Inc., No. 14-9614 (10th Cir. Jan. 20, 2016).  Rejecting the employer’s argument that… Continue Reading

Labor Relations Today Issues ‘Labor Law 2015: Year in Review’

Posted in Alternative Labor Law Reform, Beyond EFCA: Labor's Agenda, Bush Board Reversal, Card Check, Department of Labor, Executive Orders, Expedited Elections, Federal Court Litigation, Government Contracts, House of Representatives, Joint Employer, Legislation, Micro Units, Negotiations, NLRA, NLRB, NLRB Administration, NLRB Decisions, NLRB Rule-Making, Remedies, Representation Elections, SCOTUS, Senate, Social Media, Unfair Labor Practices, Unions, White House
McGuireWoods labor attorneys and the editors of Labor Relations Today are pleased to announce the publication of Labor Law 2015: A Year In Review. For most of 2015, the National Labor Relations Board consisted of five members and the general counsel — all Senate-confirmed. This Board and the White House continued aggressive efforts to overhaul traditional labor law administratively,… Continue Reading

District of Columbia Court of Appeals Orders Reinstatement of Striking Employees

Posted in Federal Court Litigation, NLRA
On November 13, 2015, the United States Court of Appeals for the District of Columbia Circuit (the “Court”) affirmed a National Labor Relations Board (the “Board”) order requiring a concrete company to reinstate striking workers. Spurlino Materials, LLC v. NLRB, Case Nos. 12-1034 and 12-1123 (D.C. Cir. Nov. 13, 2015).  The Court’s decision highlights the… Continue Reading

NLRB Subpoenas: When Defective Service Is Still Effective Service

Posted in Federal Court Litigation, NLRB, Subpoenas
A recent decision by the Ninth Circuit Court of Appeals in NLRB v. Fresh and Easy Neighborhood Market, Inc., Case No. 12-55828 (Nov. 13, 2015), emphasizes the importance of exhausting administrative remedies before the NLRB when challenging subpoenas, even when the subpoena was not properly served. In Fresh and Easy, an unfair labor practice case, the union… Continue Reading

Another Facebook Victory for Employees—Second Circuit Concludes Facebook “Likes” May Be Protected by Labor Law

Posted in Federal Court Litigation, NLRA, NLRB, Social Media
Regular readers of this blog are well-aware that employee social media activity has been and continues to be a hot-button topic for the National Labor Relations Board. Cases involving Facebook and other social media posts rarely end well for employers (see here, here, and here), and the Second Circuit Court Appeals’ October 21, 2015 decision in… Continue Reading

Quick Hits: Friday, October 16, 2015

Posted in Federal Court Litigation, NLRB, Quick Hits, Representation Elections
NLRB files brief with Fifth Circuit Defending ‘Quickie Election’ Rule: The National Labor Relations board filed its brief with the Fifth Circuit Court of Appeals this week asking that the court affirm the trial court’s rejection of a challenge by Associated Builders and Contractors of Texas Inc. and other groups to the NLRB’s new rule streamlining… Continue Reading

More About the Protecting American Jobs Act (S. 2084)

Posted in Federal Court Litigation, House of Representatives, Legislation, NLRA, NLRB, NLRB Administration, NLRB Rule-Making, Senate
As noted yesterday, Senator Mike Lee (R-UT) has introduced a bill to curtail the authority of the National Labor Relations Board.  The Protecting American Jobs Act (S. 2084) — co-sponsored by Sens. Ted Cruz (R-TX) and Tom Cotton (R-AR) — is analogous to a House bill (H.R. 1893) introduced earlier in 2015, now with seventy… Continue Reading

DC Circuit Invalidates Most of Lafe Solomon’s Tenure as Acting General Counsel

Posted in Federal Court Litigation, NLRB Decisions, Presidential Appointments
On August 7, 2015, the U.S. Court of Appeals for the District of Columbia held that Lafe Solomon, the former Acting General Counsel of the National Labor Relations Board, served in violation of the Federal Vacancies Reform Act of 1998 (“FVRA”) from January 5, 2011 to November 4, 2013. In SW General, Inc. v. NLRB, the… Continue Reading

Quick Hits: Friday, August 7, 2015

Posted in Federal Court Litigation, NLRB, NLRB Administration, Quick Hits, White House
Will critic of labor board get appointment to serve on it? – Sean Higgins at the Washington Examiner discusses Senate Majority Leader Mitch McConnell’s recommendation of lawyer G. Roger King to serve on the National Labor Relations Board. Teamsters announce plan to organize UFC fighters – SB Nation’s Bloody Elbow reports on UNITE HERE and the Teamsters’ effort… Continue Reading

Quick Hits: Tuesday, July 14, 2015

Posted in Federal Court Litigation, NLRB Administration, Quick Hits, Representation Elections, Unions
#SEIUElectionFail:  Michael Vandevort reports on an interesting recent case where an NLRB ballot was invalidated on the basis of a contemporaneous Tweet. Voting in a mail ballot election, open April and May, the eligible employee voted for the union, and announced that fact by posting a photo of herself filling out the ballot on Twitter (pictured).  According to the… Continue Reading

Court of Appeals Reverses Board Decision Allowing Employees to Wear “Inmate,” “Prisoner” Shirts in Customer Homes

Posted in Federal Court Litigation, NLRB Decisions, Unfair Labor Practices
With a subtle introductory rebuke, the Court of Appeals for the District of Columbia has reined in one of the National Labor Relations Board’s more outrageous decisions of the past few years.  In Southern New England Telephone Company v. NLRB, No. 11-1099 (D.C. Cir., July 10, 2015), the court vacated the Board’s ruling that the… Continue Reading

Sixth Circuit Panel Criticizes NLRB Jurisdiction Over Indian Tribes, But Affirms Exercise

Posted in Federal Court Litigation, House of Representatives, NLRA, NLRB, Senate
When Congressional Subcommittee Chairman Phil Roe (R-TN) commenced a hearing last month on the Tribal Labor Sovereignty Act of 2015 (H.R. 511), he explained: The subjective nature of the [NLRB]’s process for determining jurisdiction has also produced a mess of legal confusion. Years of litigation have produced inconsistent and misguided board decisions, compounding the uncertainty… Continue Reading

The Road Ahead: Top 10 Labor Issues to Watch in the Back Half of 2015

Posted in Amici Briefs, Department of Labor, Executive Orders, Expedited Elections, Federal Court Litigation, Government Contracting, Government Contracts, House of Representatives, Legislation, Micro Units, NLRA, NLRB, NLRB Decisions, NLRB Rule-Making, Persuader Rules, Representation Elections, Senate, State/Local Issues
road ahead1.  Will the Courts Uphold the New Expedited Election Rules? The National Labor Relation Board’s new expedited election rules took effect on April 14, 2015, but not before two lawsuits could be filed seeking to invalidate them in January 2015. The first lawsuit was filed by business groups, including the U.S. Chamber of Commerce, in… Continue Reading

Second Circuit: Transgender Discrimination Allegations State Duty of Fair Representation Claim Against Union

Posted in Federal Court Litigation, NLRA, Unions
The Court of Appeals for the Second Circuit recently reinstated a transgender construction worker’s duty of fair representation claims against an ironworkers union and two of its business agents.  In Fowlkes v. Ironworkers Local 40, et al., No. 12-336-cv (2d Cir. June 19, 2015), the appellate court held that the lower court was wrong to… Continue Reading