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Category Archives: NLRB Decisions

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NLRB Voids Hospital ID Policy that Bans Union Insignia Without Regard to Patient Visibility

Posted in NLRB Decisions, Unfair Labor Practices, Unions, Workplace Rules
In Long Beach Memorial Medical Center, Inc., 366 NLRB No. 66 (April 20, 2018), the Board ruled that the hospital employer’s prohibition of non-approved pins and badges was unlawfully overbroad. As a general rule, employees are permitted to wear union insignia at work in the absence of “special circumstances.”  In hospitals, out of concern for the… Continue Reading

National Labor Relations Board Vacates Earlier Decision Overruling Browning-Ferris Joint Employer Standard

Posted in Joint Employer, NLRB Administration, NLRB Decisions, Obama Board Reversal
In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), a three-Member majority of the Board overruled Browning Ferris Industries of California, 362 NLRB No. 186 (2015) and announced a return to the Board’s long-standing analysis for determining joint employment relationships.  On February 9, 2018, however, the Board’s Office of Inspector General (OIG)… Continue Reading

NLRB Orders New Election Where Polls Opened Seven Minutes Late

Posted in NLRB Decisions, Representation Elections
One Democrat Member and one Republican Member of the National Labor Relations Board joined together to set aside an election won by the union 14-12 because the Board agent opened the polls seven minutes late and there were four employees–a number that could affect the result–who did not vote. Members Lauren McFadden and William Emmanuel… Continue Reading

NLRB’s General Counsel Issues Guidance Following Board’s PCC Structurals, Inc. Decision

Posted in Micro Units, NLRB, NLRB Decisions, Representation Elections, Uncategorized
In December 2017, the Office of the General Counsel issued Memorandum OM 18-05. This memorandum followed the Board’s decision in PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017), which overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011) and reinstated the traditional community-of-interest standard for determining the appropriateness of… Continue Reading

Labor Relations Today Issues ‘Labor Law 2017: Year in Review’

Posted in Department of Labor, Executive Orders, Expedited Elections, Federal Court Litigation, Government Contracts, House of Representatives, Joint Employer, Legislative Strategy, Micro Units, MLA Media, Negotiations, NLRB Administration, NLRB Decisions, NLRB Rule-Making, Obama Board Reversal, Persuader Rules, Presidential Appointments, Representation Elections, Right to Work, SCOTUS, Senate, Social Media, 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 2017: Year in Review. As a new administration took the reins for the first time in eight years, employers, employees, unions, labor lawyers and observers alike all wondered what to expect from President Donald J. Trump.  Would he govern much… Continue Reading

Busy Board Overrules Specialty Healthcare; Restores Traditional Community of Interest Standards Disfavoring Micro-Units

Posted in Expedited Elections, Micro Units, NLRB Decisions, Obama Board Reversal, Representation Elections
National Labor Relations Board Chairman Phil Miscimarra’s term expired today, but he did not coast into “retirement.”  In addition to the late flurry of decisions which include the Board’s overruling of the Browning-Ferris joint employer standard and the Lutheran Heritage Village-Livonia standard used recently to attack neutral workrules, the Board today issued a decision undoing the radical… Continue Reading

National Labor Relations Board Restores Longstanding Joint Employer Rules

Posted in Joint Employer, NLRB Decisions, Obama Board Reversal
In the closing days of Chairman Miscimarra’s term, the Board has restored the longstanding rules for finding joint employment that were cast aside by the Obama Board in the 2015 Browning-Ferris decision. In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), the Board overruled Browning-Ferris Industries of California, Inc., dba BFI Newby… Continue Reading

National Labor Relations Board Overrules Lutheran Heritage; Sets New Standard For Reviewing Work Rules Unrelated to Protected Activity

Posted in NLRB Decisions, Obama Board Reversal, Uncategorized, Unfair Labor Practices, Workplace Rules
As is often the case when a Board Member’s term winds down, this week has seen a flurry of activity.  Back in May, when nominations to seat a full Board were still just being rumored, we identified a handful of the more extreme and overreaching decisions of the Obama Board certain to find themselves in… Continue Reading

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

House Committee On Education And The Workforce Approves Three Bills To Amend National Labor Relations Act

Posted in Expedited Elections, House of Representatives, Legislation, Micro Units, NLRA, NLRB Decisions, NLRB Rule-Making, Obama Board Reversal, Representation Elections, Senate
Following a June 14, 2017 subcommittee hearing, and a June 27, 2017 mark-up, the House Committee on Education and the Workforce has approved the Tribal Labor Sovereignty Act of 2017 (H.R. 986), the Workforce Democracy and Fairness Act (H.R. 2776), and the Employee Privacy Protection Act (H.R. 2775).  All three bills were approved by a… Continue Reading

Senate Introduces Own Version Of Bill To Restore National Labor Relations Board Election Procedures

Posted in Expedited Elections, House of Representatives, Legislation, Micro Units, NLRA, NLRB Decisions, NLRB Rule-Making, Obama Board Reversal, Senate
On Wednesday, June 14, 2017, Senator Lamar Alexander (R-TN) announced introduction of The Workforce Democracy and Fairness Act (S. 1350): A bill to amend the National Labor Relations Act with respect to the timing of elections and pre-election hearings and the identification of pre-election issues, and to require that lists of employee eligible to vote in organizing elections… 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

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

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