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Labor Relations Today

Category Archives: NLRB

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NLRB General Counsel Takes a Stand: College Scholarship Football Players Are Employees Under the NLRA

Posted in Division of Advice, NLRB
In a memorandum issued on January 31, 2017, the National Labor Relations Board’s General Counsel, Richard Griffin, provided a “guide for employers, labor unions, and employees that summarizes Board law regarding NLRA employee status in the university setting and explains how the Office of the General Counsel will apply these representational decisions in the unfair… 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

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

Does Trump’s Election Signal the Demise of Recent Labor Regulations?

Posted in Department of Labor, NLRB, NLRB Administration, NLRB Rule-Making, Persuader Rules, White House
The election of Donald Trump places numerous regulations issued under the Obama administration in jeopardy, including the Department of Labor’s Persuader Rules, the National Labor Relations Board’s “Quickie” Election Rules, and the Department of Labor & FAR Council’s Fair Pay & Safe Workplaces Regulations. Currently, these rules are essentially immune from Congressional challenge given President Obama’s… 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

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

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 Division of Advice Asserts Misclassification of Employees Itself Interferes with Section 7 Rights

Posted in Division of Advice, NLRA, NLRB, Unfair Labor Practices
In a General Counsel Advice Memorandum released in late August 2016, the NLRB Division of Advice found that employers who misclassify employees as independent contractors violate Section 8(a)(1) of the NLRA by restraining the employees’ section 7 rights to engage in concerted, protected activity.  The Memorandum, which is dated December 18, 2015, but was only recently… 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

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

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

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 Contractors Beware: NLRB Begins Reporting Under Fair Pay and Safe Workplaces Executive Order

Posted in Executive Orders, Government Contracting, Government Contracts, NLRB, NLRB Administration, White House
On July 1, 2016, the Office of the General Counsel for the National Labor Relations Board issued a memorandum (OM 16-23) stating that beginning with NLRB complaints issued on or after July 1, 2016, the NLRB will collect data to be reported to a federal database to comply with the Fair Pay and Safe Workplaces… Continue Reading

Will NLRB’s New ‘Joint Employer’ Standard Discourage Corporate Social Responsibility Initiatives?

Posted in Amici Briefs, Joint Employer, NLRB, Unions
All observers recognized that the National Labor Relations Board’s Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015) decision, overhauling decades of settled precedent, was going to have significant and far-reaching effects, as it greatly expanded the scope of relationships in which the Board would find entities to be “joint employers.” Most commentary has focused on… 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

NLRB Caught with Egg on its Face: ALJ Finds Agency Violated Federal Labor Law By Failing to Negotiate with its Union

Posted in NLRB, NLRB Administration, NLRB Misc.
Last month a Federal Labor Relations Authority administrative law judge found that the National Labor Relations Board, the agency whose duties include determining whether private employers bargain in good faith, violated its duty to bargain with its union under the Federal Service Labor-Management Relations Statute and the Rules and Regulations of the Federal Labor Relations… Continue Reading

NLRB Invites Briefs on Whether It Should Continue to Permit Administrative Law Judges to Approve Unilateral Settlement by “Consent Order”

Posted in Amici Briefs, NLRB
On February 19, 2016, the National Labor Relations Board (the “Board”) invited briefs from interested parties to consider whether the Board should continue to permit Administrative Law Judges to issue “consent orders,” subject to review by the Board, incorporating the terms proposed by the respondent to settle an unfair labor practice case, to which no… Continue Reading

NLRB Invites Briefs on Whether Revise Its Treatment of Search-for-Work Expenses as Part of the Make-Whole Remedy

Posted in Amici Briefs, NLRB, Remedies
On February 19, 2016, the National Labor Relations Board (the “Board”) invited briefs from interested parties in a case considering whether the Board should revise its treatment of search-for-work expenses and interim employment expenses as part of the make-whole remedy for unlawfully discharged employees. For decades, the Board has treated an unlawfully discharged employee’s reasonable… 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