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Category Archives: NLRB Decisions

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National Labor Relations Board Finds Union Supporter’s Profanity-Laden Rant Unprotected by the National Labor Relations Act

Posted in NLRA, NLRB, NLRB Decisions
In a rare win for the employer, the National Labor Relations Board (the “Board”) unanimously affirmed an Administrative Law Judge’s (“ALJ”) decision that the termination of a union bargaining-committee representative for a profanity-laden rant did not violate the National Labor Relations Act. Brooke Glen Behavioral Hospital, 365 NLRB No. 79 (May 15, 2017). The employer,… Continue Reading

Board Rules Casino Violated Act By Barring Former Employee From Socializing In Nightclub

Posted in NLRB Decisions, Uncategorized
The National Labor Relations Board has held that a casino operator violated Section 8(a)(1) of the Act by forbidding a former employee from “socializing” at one of its nightclubs after she joined a Fair Labor Standards Act (FLSA) class action lawsuit.   In MEI-GSR Holdings, LLC dba Grand Sierra Resort & Casino, 365 NLRB No.… Continue Reading

National Labor Relations Board Says AT&T Privacy Rule Goes Too Far

Posted in NLRA, NLRB Decisions, Unfair Labor Practices, Workplace Rules
Last week a National Labor Relations Board (NLRB) administrative law judge ruled that AT&T Mobility interfered with employees’ labor rights with an overly broad privacy rule. The rule prohibited employees from recording any conversation without approval from the company’s legal department. In AT&T Mobility, LLC, NLRB Case No. 05-CA-178637 (April 25, 2017), the ALJ found… Continue Reading

President Trump Names Philip Miscimarra To Serve As National Labor Relations Board Chairman

Posted in NLRB Administration, NLRB Decisions, Presidential Appointments
Following up on his earlier announced intent, President Trump has named Acting Chairman Philip A. Miscimarra to serve as Chairman of the National Labor Relations Board.  Miscimarra has served as Acting Chairman since January 23, 2017, and had served as a Board Member since August 7, 2013. His 2013 nomination was approved unanimously by the Senate… 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

U.S. Chamber of Commerce Report Catalogs Extensive Extreme Activity by Obama Era National Labor Relations Board

Posted in Legislative Strategy, NLRA, NLRB, NLRB Decisions, NLRB Rule-Making, Presidential Appointments
Last week, the United States Chamber of Commerce issued a report intended to provide a blueprint to the Trump administration as it looks toward formulating a labor relations agenda.  “The Record of the National Labor Relations Board in the Obama Administration: Reversals Ahead?” is a 162-page report, summarizing the most significant labor relations developments of… 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

Member Miscimarra Finds “Common Sense Is Not So Common” in NLRB’s Latest Supervisor Determination

Posted in NLRB Decisions, Representation Elections
In a 2-1 decision, the National Labor Relations Board elected to deny the employer’s request for review of the Regional Director’s Decision and Direction of Election in Chi LakeWood Health, 365 NLRB No. 10 (Dec. 28, 2016), a case where the employer asserted that its patient care coordinators (PCCs) are supervisors under the National Labor Relations… Continue Reading

Columbia University Grad Students Vote To Unionize

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

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