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Labor Relations Today

Category Archives: NLRB Decisions

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General Counsel Urges Board to Disallow Permanent Replacements During Economic Strikes, Absent Employer Proof of Necessity

Posted in NLRA, NLRB Decisions, Strikes, Unfair Labor Practices
In connection with pending exceptions to an ALJ decision in United Site Services of California, the General Counsel has argued that the Board should change existing law to hold that an employer violates the Act when it permanently replaces striking employees without “a legitimate and substantial business justification.”  The case is now fully briefed before… Continue Reading

Board Member Hirozawa Endorses “Members Only” Union Recognition in Concurring Opinion as Term Expires

Posted in Beyond EFCA: Labor's Agenda, Duty to Bargain, Negotiations, NLRA, NLRB Decisions, NLRB Rule-Making
In one of the final decisions of his expired term, Board Member Kent Hirozawa sanctioned a long-rejected interpretation of the National Labor Relations Act which would impose an obligation on employers to bargain with “members only” unions. Endorsing a theory outlined most thoroughly by Professor Charles Morris in his 2005 book, “The Blue Eagle at… 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

NLRB Continues to Expand the Reach of the NLRA by Exercising Jurisdiction Over Charter Schools

Posted in NLRA, NLRB, NLRB Decisions
In two decisions issued last month, Pennsylvania Virtual Charter School, 364 NLRB No. 87 (Aug. 24, 2016) and Hyde Leadership Charter School—Brooklyn, 364 NLRB No. 88 (Aug. 24, 2016), the National Labor Relations Board continued to crystallize consensus in its decisions exercising jurisdiction over charter schools. Under Board precedent, an entity is considered a political subdivision… Continue Reading

NLRB Axes Traditional Treatment of Search-for-Work and Interim Employment Expenses

Posted in NLRB, NLRB Decisions, Remedies
For nearly eighty years, when awarding back pay to unlawfully terminated employees, the National Labor Relations Board (the “Board”) treated search-for-work and interim employment expenses (“search-for-work expenses”) as an offset to interim earnings. With yesterday’s decision in King Soopers, Inc., 364 NLRB No. 93 (August 24, 2016), the Board announced that it will no longer… Continue Reading

NLRB Holds That Graduate Teaching Assistants Could Be Employees Under the NLRA

Posted in Bush Board Reversal, NLRA, NLRB, NLRB Decisions
On August 23, 2016, in a 3-to-1 decision, the National Labor Relations Board (“the Board”) overturned long-standing precedent to hold that student graduate teaching assistants  are statutory employees under the National Labor Relations Act (“NLRA”).  The decision, Columbia University, 364 NLRB No. 90, marks a significant change in United States labor law and raises several… Continue Reading

NLRB’s Latest Joint Employer Decision Is Problematic for Temporary Staffing Firms and Their Clients

Posted in Joint Employer, NLRB Decisions, Representation Elections
Almost a year after rewriting its decades-old joint employer test in Browning-Ferris Industries of California, Inc., the National Labor Relations Board has finally issued a Board decision providing some guidance on what constitutes a joint employer relationship. To the surprise of no one given the facts of the case, the Board found that a joint employer relationship… Continue Reading

Board Finds Management Rights Provision Too Vague

Posted in NLRA, NLRB, NLRB Decisions, Uncategorized, Unfair Labor Practices
The National Labor Relations Board recently ruled in Graymont PA, Inc., 364 NLRB No. 37, that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act by unilaterally implementing changes to various policies and by failing to timely inform the Union that it did not possess information requested relevant to the policy… Continue Reading

NLRB Takes Issue with Noncompetes and Employment At-Will

Posted in NLRB Decisions, Unfair Labor Practices
The Board continued its expansion of employee rights in its July 29th decision in Minteq International, Inc., 364 NLRB No. 63, finding that two common provisions in a non-compete agreement interfered with employees’ rights in violation of Section 8(a)(1) of the National Labor Relations Act. Among other allegations, the General Counsel in Minteq asserted that the “Interference with… Continue Reading

Employer Violates Labor Law by Terminating Employee for His “Careless” Testimony Before a Legislative Body

Posted in NLRB Decisions, Unfair Labor Practices
In Oncor Electric Delivery Co., 364 NLRB No. 58 (July 29, 2016), the National Labor Relations Board found that the employer, an electric utility, violated the Act by terminating an employee for his testimony before the Texas Senate. The employee testified before the Senate regarding the employer’s use of new smart meters that the employee claimed were… Continue Reading

NLRB’s Latest “Perfectly Clear” Successor Decision Creates Pitfalls for Buyers of Unionized Operations

Posted in NLRB Decisions, Unfair Labor Practices
On July 18, 2016, the Board issued a split decision (Member Miscimarra dissenting) in Nexeo Solutions, LLC, 364 NLRB No. 44, in which it found that the buyer, Nexeo, was a “perfectly clear” successor of the seller’s unionized employees thereby precluding it from being able to set initial terms and conditions of employment unilaterally. The Board’s decision… Continue Reading

Regional Director Had Authority to Certify Election Despite NLRB’s Lack of Quorum

Posted in NLRB, NLRB Decisions, Representation Elections
On July 15, 2016, the Board issued its decision in Hospital of Barstow, Inc., 364 NLRB No. 52, on remand from the D.C. Circuit (Hospital of Bartow, Inc. v. NLRB, 820 F.3d 440), addressing the issue of whether the Regional Director retained authority, despite the Board’s lack of a quorum in 2012 and 2013, to certify the… Continue Reading

NLRB Reverses Long-Standing Rule To Allow Inclusion of Regular Employees and Third Party Employees in Single Bargaining Unit

Posted in Bush Board Reversal, Joint Employer, NLRA, NLRB, NLRB Decisions, Unions
In a much anticipated decision, the NLRB reversed existing precedent on temporary employees, holding that permanent employees and temporary staffing employees could be combined in the same bargaining unit without either the employer or the staffing agency’s consent. In its July 11, 2016 decision in Miller & Anderson, Inc., the NLRB overturned longstanding precedent, marking yet… Continue Reading

NLRB Legitimizes Improper Mail Ballot Election Rule Followed by Certain Regional Offices

Posted in NLRB, NLRB Decisions, Representation Elections
For more than 50 years, the Board has maintained a rule for mail ballot elections prohibiting the parties from holding mass campaign meetings on company time (commonly referred to as “captive audience” meetings) with employees “from the time and date on which the ‘mail in’ ballots are scheduled to be dispatched by the Regional Office… 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

Board Finds Rule Prohibiting Recordings in the Workplace Unlawful

Posted in NLRA, NLRB, NLRB Decisions
Keeping with its trend of invalidating common workplace rules, the National Labor Relations Board, in a 2-1 decision issued on December 24, 2015 in Whole Foods Market, Inc., 363 NLRB No. 87, found that an employer’s rule prohibiting recording of company meetings or conversations in the workplace violated Section 8(a)(1) of the National Labor Relations… Continue Reading

NLRB Considers Whether to Overrule 11-Year Old Precedent Holding That Graduate Students Are Not Employees Under the NLRA

Posted in NLRA, NLRB, NLRB Decisions
Earlier this month, we posted about a Regional Director’s dismissal of a petition filed by an organizing committee of the United Auto Workers (UAW) seeking to represent various student assistants at Columbia University in New York.  The UAW has filed a request for review in that case which is currently pending before National Labor Relations Board (NLRB).  In a… Continue Reading

NAM Files Amicus Brief Challenging ALJ Decision Reinstating Racist Employee

Posted in Amici Briefs, NLRB, NLRB Decisions, Picket Line Activity, Unfair Labor Practices
On November 10, 2015, the National Labor Relations Board granted the National Association of Manufacturers’ motion to file an amicus brief in Cooper Tire & Rubber Co., Case No. 8-CA-87155, in which the employer is challenging an administrative law judge’s decision requiring the employer to reinstate an employee who made racist statements on the picket line. The… Continue Reading

Employer Had No Duty to Bargain Over Use of GPS Tracking Device

Posted in Division of Advice, Duty to Bargain, NLRB Decisions, Unfair Labor Practices
The NLRB’s Division of Advice recommended dismissal of an unfair labor practice charge alleging that an employer violated Section 8(a)(5) of the National Labor Relations Act by using a GPS tracking device to investigate an employee without first bargaining with the union. The Division of Advice’s sensible conclusion was based on the specific facts of the case, as normally… Continue Reading

NLRB Regional Director Dismisses Petition by Union Seeking to Represent University Student Teaching and Research Assistants

Posted in Bush Board Reversal, NLRA, NLRB Decisions, Representation Elections
On October 30, 2015, the Regional Director for Region 2 of the National Labor Relations Board dismissed a petition filed by an organizing committee of the United Auto Workers (UAW) seeking to represent various student assistants at Columbia University in New York.  In Columbia University, Case No. 02-RC-143012, the Union sought to represent a unit of [a]ll student… Continue Reading

Fifth Circuit Reverses Board Decision on Lawfulness of Arbitration Agreements Once Again

Posted in NLRA, NLRB, NLRB Decisions, Uncategorized, Unfair Labor Practices
In Murphy Oil USA, Inc. v. National Labor Relations Board, a three-judge panel of the United States Court of Appeals for the Fifth Circuit again held, contrary to the NLRB, that an employer does not commit an unfair labor practice by requiring its employees to sign arbitration agreements.  In doing so, the Fifth Circuit followed… Continue Reading

Board Finds That Canvassers Are Employees, Reversing ALJ

Posted in NLRA, NLRB, NLRB Decisions
Further crystalizing the Board’s efforts to expand the definition of “employee” under the NLRA, the Board recently reversed an ALJ’s decision, holding that canvassers for a non-profit organization were employees, not independent contractors. In Sisters Camelot, 363 NLRB No. 13 (Sep. 25, 2015), a canvasser filed a charge alleging that he was terminated for engaging… Continue Reading

Quick Hits: Monday, September 21, 2015

Posted in Beyond EFCA: Labor's Agenda, Media Round-Up, NLRA, NLRB Decisions, Quick Hits
ICYMI — Dems Intro “WAGE” Act: We reported last week on the drastic legislative proposal introduced to increase NLRB penalties against employers, to facilitate union organizing. In addition to our summary piece and this document including proposed changes to the NLRA in redline, we provided links to some additional resources and coverage. Add to those, this Washington… Continue Reading

National Labor Relations Board Declines to Order Make-Whole Remedy in Twenty Year Old Dues Check-Off Dispute

Posted in NLRA, NLRB, NLRB Decisions, Remedies
On September 10, 2015, the National Labor Relations Board (the “Board”) ended a twenty (20) year old dispute over union dues deductions. Hacienda Hotel, Inc. Gaming Corp., 363 NLRB No. 7 (Sept. 10, 2015). The Board adopted the Ninth Circuit Court of Appeals’ (the “Ninth Circuit”) ruling that the employer violated the National Labor Relations… Continue Reading