A couple weeks ago we provided anecdotal reports from several NLRB Regional Directors that after one month the new Ambush Election Rules union elections were being held in considerably less time, with the Regional Directors claiming elections were being scheduled between 25-30 days. Last week, according to BNA’s Daily Labor Report and Law360, the NLRB released national results of the first month showing that the impact was worse than anticipated.
More Union Petitions Under Ambush Elections Rule
Between April 14 (the day the rules when into effect) and May 14, 280 ...
May 14th marked the one-month anniversary of the effective date of the NLRB’s Amended Representation Election Rules (“amended rules”). That day, the Regional Directors for NLRB Regions 2 (New York, NY), 22 (Newark, NJ), and 29 (Brooklyn, NY) discussed their offices’ experiences processing representation petitions filed since the amended rules took effect on April 14th.
With respect to the questions of how the amended rules are actually affecting representation petitions and elections, while one month may not be representative, the data to date does offer some ...
My colleague Barry A. Guryan published a Health Employment And Labor (HEAL) blog post that will be of interest to many of our readers: “NLRB Extends “Specialty Healthcare” to Acute Care Hospitals: Carves Unit into Multiple Smaller Pieces.”
Following is an excerpt:
Ever since 1974, when the NLRB (“Board”) first took jurisdiction over health care institutions, the Board has paid particular attention to the impact of union organizing on the delivery of healthcare in this industry in general and of acute care hospitals in particular. When the Act was first amended in ...
Last week we reported on the fact that Teamsters Local 853 and Loop Transportation had completed negotiations for a first collective bargaining agreement covering a unit of shuttle bus drivers who provide transport for employees of Facebook. We pointed out that employers in technology, media and telecommunications were facing union organizing targeting employees of their vendors and suppliers for transportation, maintenance, food service and the like, that threatened to enmesh such employers as a consequence of unions gaining recognition of their vendors’ and ...
Employers in the Technology Media and Telecommunications (“TMT”) industries have generally not thought that union organizing was an issue that affected their businesses and workforces. Recent developments suggest that this is no longer the case.
These industries have earned reputations for innovative workplaces, generous benefits, and free food. At the same time, technology companies have outsourced many non-core functions such as campus security, maintenance, and transportation to third party suppliers. Employees of these vendors generally receive less ...
On January 5, 2015, less than one month after the National Labor Relations Board (NLRB) voted to adopt a Final Rule to amend its rules and procedures for representation elections, a lawsuit has been filed in the US District Court for the District of Columbia, asserting that the Board exceeded its authority under the National Labor Relations Act (Act) when it amended its rules for votes on union representation and that the new rule in unconstitutional and violates the First and Fifth Amendments of the US Constitution.
The suit was filed by the Chamber of Commerce of the United ...
On January 5, 2015, less than one month after the National Labor Relations Board (NLRB) voted to adopt a Final Rule to amend its rules and procedures for representation elections, a lawsuit has been filed in the US District Court for the District of Columbia, asserting that the Board exceeded its authority under the National Labor Relations Act (Act) when it amended its rules for votes on union representation and that the new rule in unconstitutional and violates the First and Fifth Amendments of the US Constitution.
The suit was filed by the Chamber of Commerce of the United ...
On January 5, 2015, less than one month after the National Labor Relations Board (NLRB) voted to adopt a Final Rule to amend its rules and procedures for representation elections, a lawsuit has been filed in the US District Court for the District of Columbia, asserting that the Board exceeded its authority under the National Labor Relations Act (Act) when it amended its rules for votes on union representation and that the new rule in unconstitutional and violates the First and Fifth Amendments of the US Constitution.
The suit was filed by the Chamber of Commerce of the United States ...
In our new Act Now Advisory, “NLRB Adopts Expedited Election Rules, Effective April 15, 2015,” we report on the National Labor Relations Board’s new rules for representation elections. These rules will substantially shorten the time between the point when a union files a petition for a vote and the timing of the vote, severely limit the right of employers to litigate important issues before an election is held, and are expected to result in more union wins in representation votes. We include steps that employers may want to consider taking in advance of April 2015, in order to ...
Updated, 12/12/14 — In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to email at work. While the majority in Purple Communications characterized the decision as “carefully limited,” in reality, it appears to be a major game changer. This decision applies to all employers, not only those that have union-represented employees ...
Our colleague Steven Swirsky at Epstein Becker Green wrote an advisory on an NLRB ruling that affects all employers: "NLRB Holds That Employees Have the Right to Use Company Email Systems for Union Organizing - Union and Non-Union Employers Are All Affected." Following is an excerpt:
In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to ...
Our colleague Steven Swirsky at Epstein Becker Green wrote an advisory on an NLRB ruling that affects all employers: "NLRB Holds That Employees Have the Right to Use Company Email Systems for Union Organizing - Union and Non-Union Employers Are All Affected." Following is an excerpt:
In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to ...
Our colleague Steven Swirsky at Epstein Becker Green wrote an advisory on an NLRB ruling that affects all employers: "NLRB Holds That Employees Have the Right to Use Company Email Systems for Union Organizing - Union and Non-Union Employers Are All Affected." Following is an excerpt:
In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to ...
Our colleague Steven Swirsky at Epstein Becker Green wrote an advisory on an NLRB ruling that affects all employers: "NLRB Holds That Employees Have the Right to Use Company Email Systems for Union Organizing - Union and Non-Union Employers Are All Affected." Following is an excerpt:
In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to ...
On October 28 a three-member majority of the National Labor Relations Board in Murphy Oil U.S.A., Inc. revisited and reaffirmed its position that employers violate the National Labor Relations Act (the “Act”) by requiring employees covered by the Act (virtually all nonsupervisory and non-managerial employees of most private sector employees, whether unionized or not) to waive, as a condition of their employment, participation in class or collective actions.
As previously reported in an Act Now Advisory, in 2012 the NLRB held in D.R. Horton that the home ...
We have written about it before but a recent NLRB decision is yet another example of the NLRB’s expanding and expansive view of what constitutes protected, concerted activities, and is therefore protected under the National Labor Relations Act. In Fresh & Easy Neighborhood Mkt, the NLRB (Chairman Pearce and Members Hirozawa and Schiffer) found that an employee engaged in protected, concerted activity when the employee spoke to co-workers about a single act of sexual harassment that was “seemingly directed at [the employee ...
By Peter M. Panken, Steven M. Swirsky, and Adam C. Abrahms
In May, we cautioned employers that the NLRB would be increasing its aggressive pursuit of injunctions under Section 10(j) of the Act to pressure employers in a range of unfair labor practice cases. The Board’s aggression and apparent overreach is clearly revealed in one recent case in which the Board petitioned for and was granted an injunction to end a lockout, only to have the underlying unfair labor practice allegation dismissed eight days later when the Administrative Law Judge who heard the case found that the ...
The NLRB’s General Counsel’s Office, in an Advice Memo dated October 25, 2013 (pdf) and released to the public on August 7, 2014, has taken the position that “an enterprise that grows, processes, and retails medical marijuana” is an employer subject to the National Labor Relations Act provided it meets the Board’s monetary jurisdictional standards and is an employer engaged in commerce and that “the Board should assert jurisdiction over this type of business enterprise.”
Notably, the General Counsel’s office advocates the position that even though all of ...
The National Labor Relations Board has been busy since the Supreme Court’s June 26th Noel Canning decision trying to address the issues and uncertainty resulting from the Court’s holding that recess appointments of Board members on January 4, 2012, were invalid because the Senate was not actually in recess. As we pointed out in our earlier post, this meant that numerous Board decisions from January 4, 2012 until August 5, 2013, because the Board lacked a quorum at the time that the cases were decided and many administrative actions, including appointments of Regional Directors ...
NLRB General Counsel Richard Griffin announced on Tuesday July 29th that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of 181 charges pending against McDonald’s, USA, LLC and various of its franchisees, in which the Board will allege that the company and its franchisees are joint-employers. If the General Counsel prevails on his theory that McDonalds is a joint employer with its franchisees, the result would be not only a finding of shared responsibility for unfair labor practices, but could also mean that the franchisor would share in the ...
The NLRB finds that the women’s shoe sales employees at Bergdorf Goodman’s New York Store are not an appropriate unit for bargaining. The Board’s unanimous decision to reverse the Regional Director’s finding that the shoe sales team did constitute an appropriate unit and could have their own vote on union representation comes one week after its decision finding that a unit limited to the cosmetics and fragrance sales employees at a Macy’s in Saugus were an appropriate unit for bargaining. The Regional Directors who issued the Decisions and Directions of Election in ...
The New York Times reported today in its business section in article by Steven Greenhouse, who covers labor matters for the paper, about a convention taking place in Addison. The convention is underwritten by the Service Employees International Union or SEIU, which has been not very quietly backing the “Stand for Fifteen,” movement in its quest for wages of $15 per hour in the fast food field. It is probably not a coincidence that Addison is just four miles from McDonald’s headquarters in Oak Brook, Il.
While most of last week’s focus in labor relations law was on the NLRB’s ...
On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.
Following is an excerpt from the blog post:
On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all ...
On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.” As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.
Section 11(c) of the Occupational Safety and Health Act of 1970 (Section 11(c)) requires employees to file complaints alleging retaliation for protected safety related whistleblower activities within thirty days of the triggering adverse employment action. The Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate, Labor and Pensions Subcommittee on Employee and Workplace Safety about OSHA’s whistleblower program. One of the key points of his testimony was that between 300 and 600 Section 11(c) complaints per year (roughly 10%) were filed beyond the 30-day deadline. Dr. Michaels added that at least 100 of these complaints barely missed the deadline -- by less than a month.
The National Labor Relations Act (NLRA), on the other hand, addresses different types of claims and also provides for a much longer statute of limitations. Section 7 of the NLRA provide: “Employees shall have the right to. . . engage in concerted activities for the purpose of collective bargaining or other mutual air or protection.” Section 8 prohibits unfair labor practices that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” The NLRA has a 6-month statute of limitations for claims of unfair labor practices.
Because the NLRA’s statute of limitations is six months longer than the OSH Act’s, OSHA agents will now advise employees who file an untimely Section 11(c) claim that their claims may qualify as unfair labor practices under the NLRA, and explain their rights to file such claims with the NLRB, where their claims could be timely. For a claim to qualify for protection as an unfair labor practice, however, the claim must involve “concerted activities.” Thus, not every employee who was unable to file a timely Section 11(c) complaint will have a viable unfair labor practice claim, even if it would be timely under the NLRA.
The NLRB has provided a set of talking points to OSHA to help the OHSA agents discuss these rights with employees:
- OSHA recommends that you contact the NLRB as soon as possible, to inquire about filing a charge
alleging unfair labor practices. - The time limit to file a charge with the NLRB is 6 months from the unfair labor practice.
- The NLRB is responsible for enforcing employee rights under the NLRA. The NLRA protects employee rights to act together to try to improve working conditions, including safety and health conditions, even if the employees aren't in a union.
- OSHA may not determine whether you are covered by the NLRA. Please contact the NLRB to discuss your rights under the NLRA.
OSHA also plans to include this information when it sends letters alerting employees that their 11(c) claims are being closed as untimely.
Neither the NLRB nor OSHA has addressed the legal issues posed by this agreement. Congress intended that employees must file safety related whistleblower complaints very quickly, which is why it set such a short limitations period. The short deadline for such claims makes sense because safety and health issues pose special risks; i.e., it is not a matter of fairness at stake, it is potentially a matter of life and death, where delays in reporting such issues could have grave consequences. Creating a loophole or backdoor to extend the filing deadline for claims that could have been timely pursued as 11(c) claims by treating them as NLRA violations could discourage timely reporting under the OSH Act.
By: Adam C. Abrahms, Kara M. Maciel, Steven M. Swirsky, and Mark M. Trapp
The U.S. Supreme Court today held that the US Senate was not in recess on January 4, 2012, when President Obama made three “recess” appointments to the National Labor Relations Board under the Constitution’s Recess Appointment Clause. In simple terms that means that the recess appointments were not proper and s decisions in which the recess appointees participated were not valid.
What this now means is that hundreds of cases decided by the NLRB following the January 4, 2012 recess appointments to the ...
By Steven M. Swirsky and Peter M. Panken
NLRB General Counsel Richard Griffin has declared in an April 30, 2014 General Counsel Memorandum. that his office will continue and expand the increasingly aggressive pursuit of injunctions in Federal Court against employers in connection with union organizing and bargaining for initial collective bargaining agreements.
In GC Memorandum GC 14-30, the Board’s regional offices have been directed that they should aggressively consider requesting authorization from the General Counsel and the Board to pursue Section 10(j) injunctions ...
By Kara M. Maciel and Lindsay A. Smith
On April 30, 2014, the National Labor Relations Board (the “Board”) invited interested parties to submit amicus briefs addressing an employee’s right to use an employer’s electronic communications system for Section 7 activity in the case of Purple Communications Inc. Based on a prior Board decision in Guard Publishing Co. d/b/a Register Guard (2007), employers are not currently required to allow employee use of their e-mail systems for protected, concerted activities because in that case the Board held, “employees have no ...
As we reported on April 14, in “NLRB Receives Spirited Debate Over Ambush Election Rules During Public Meeting,” our colleague Kara M. Maciel spoke on behalf of the National Grocers Association, on three separate panels.
See below for the videos, or visit the NLRB channel on Youtube.
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If you have questions, please reach out to the author(s).
The Workforce Bulletin blog is currently edited by Adam S. Forman, Greta Ravitsky, Elizabeth S. Torkelsen, and Jennifer Stefanick Barna.
For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections. The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA). The positions of the parties were ...
For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections. The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA). The positions of the parties were ...
For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections. The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA). The positions of the parties were ...
Our colleague Kara Maciel will speak on behalf of EBG client, National Grocers Association (“NGA”), at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.
The panels will address the following topics:
- Panel B.2: Requirement for written statement of position
Address issues related to the proposed requirement for a written statement of position. - Panel E.1 & E.3: Election date
Please describe the standard to be applied for ...
Our colleague Kara Maciel will speak on behalf of EBG client, National Grocers Association (“NGA”), at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.
The panels will address the following topics:
- Panel B.2: Requirement for written statement of position
Address issues related to the proposed requirement for a written statement of position. - Panel E.1 & E.3: Election date
Please describe the standard to be applied for ...
Our colleague Kara Maciel will speak on behalf of EBG client, National Grocers Association (“NGA”), at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.
The panels will address the following topics:
- Panel B.2: Requirement for written statement of position
Address issues related to the proposed requirement for a written statement of position. - Panel E.1 & E.3: Election date
Please describe the standard to be applied for ...
By Steven M. Swirsky and Adam C. Abrahms
The Regional Director for the NLRB’s Chicago Region has found that football players at Northwestern University who receive scholarships are “employees” for purposes of the National Labor Relations Act. Some of the football players blindsided the University, NCAA and college athletics by filing a petition to be represented by the College Athlete Players Association (CAPA), a putative union funded and supported by the United Steelworkers union. As only "employees" are covered by the National Labor Relations Act, finding them to be ...
By Kara M. Maciel and Lindsay A. Smith
On March 12, 2014, the National Labor Relations Board (“the Board”) concluded that a beef processing company committed an unfair labor practice in violation of the National Labor Relations Act (“NLRA”) when it terminated three workers for striking in protest of their working conditions (“Greater Omaha Packing Co.”). More significant, however, was the Board’s decision to reverse an Administrative Law Judge’s finding concerning the employer’s questioning of an employee. Prior to the strike, one of the terminated ...
As we have discussed on a number of prior occasions (Fifth Circuit Rejects The NLRB’s D.R. Horton Decision On Arbitration Waivers; Obama’s Labor Agenda Continues to Advance – Griffin Confirmed as NLRB GC; NLRB Administrative Law Judge Finds Medical Center’s Technology Usage Policies Violated Employees Rights Under the National Labor Relations Act. and Labor Law vs. Common Sense – NLRB Continues Targeting Non-Union Employers and Common Sense) the National Labor Relations Board (“NLRB” ) and its Administrative Law Judges continue to find that ...
As previously predicted by the Management Memo on August 1, 2013 and October 30, 2013, the National Labor Relations Board (the “Board”) issued a second Notice of Proposed Rulemaking (“NPRM”) to amend its existing rules and regulations governing union elections procedures. If they look familiar when you see them, there is a good reason for that: you have seen them before.
As readers of the Management Memo are well aware, the NPRM is the latest development in the long saga of organized labor’s attempts to “fix” the representation election process in its favor. Most ...
Our colleague Frank C. Morris, Jr., at Epstein Becker Green wrote the December issue of Take 5, with five key action items for employers in 2014. Following is an excerpt:
It's December, and human resources professionals and law departments are reflecting on the issues addressed in 2013 and giving thanks for incident-free holiday parties. But the big question is this: What issues should get priority attention for 2014 as part of a proactive approach to workplace issues and limiting potential employment and labor law claims? This month's Take 5 provides a "Top 5" list of action items to ...
By Lisa M. Watanabe
On December 3, 2013, the Fifth Circuit issued its much anticipated decision overturning the National Labor Relations Board’s (“NLRB”) controversial D.R. Horton, Inc. decision invalidating class action waivers and holding that requiring employees to sign such waivers violated employees’ rights under the National Labor Relations Act (the “Act”). As previously reported in our earlier Act Now Advisory, the NLRB’s January 3, 2012 decision held that home builder D.R. Horton, Inc. (“D.R. Horton”) unlawfully interfered with employees’ ...
In a recent Law360 article, "NLRB Social Media Push Looms Large for Hospitality Sector" (subscription required), our colleague Mark Trapp comments on the importance for unionized and non-unionized hospitality employers to review their social media policies.
Following is an excerpt:
With the National Labor Relations Board increasingly interjecting into non-union issues, hotels, restaurants and other labor-intensive hospitality companies need to brace for potential claims and tread carefully when crafting social media policies for employees, experts say.
Over the last ...
Earlier this week the Senate confirmed Richard Griffin as NLRB General Counsel. As we have noted previously in greater detail, Griffin’s appointment was controversial, having been unconstitutionally appointed as a Board Member and, to the ire of Republicans, seemingly thumbed his nose and multiple Courts of Appeals which ruled he and the other recess appointments did not have the authority to act.
In an anti-climactic end to several years of NLRB appointment Senate wrangling, Griffin was confirmed Tuesday in a party line vote. He now becomes the first confirmed ...
The NLRB has issued an announcement, explaining how it will recalculate deadlines for filings and submissions in light of the federal government’s 16 day shutdown earlier this month. As we reported at the time of the shutdown the NLRB sua sponte granted parties a one day extension for each day that the Board was closed.
In its announcement dated October 17, 2013, the Board explained that the extensions will apply for all pending matters and not just those due dates that fell during the shutdown period. There is a one day extension for “each day on which the Agency’s offices are ...
The NLRB has advised its employees in a message posted on the Employee Information section of its website that the Agency has initiated a process to resume full operations. As such, all employees should make every effort to return to work on Thursday, October 17, 2013. This reflects the fact that, as the Board has informed its employees who may not have been following developments in Washington too closely, that “late last night President Obama signed legislation to extend the nation's debt limit and end the partial shutdown of the federal government.”
As we ...
by: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
On Monday October 1, 2013, the Board published a Notice in the Federal Register to the NLRB’s website that supplements the effects of the Contingency Plan that we examined at outset of the government shutdown and NLRB furlough. Significantly, the Notice answers some of the important practical questions confronting employers, unions and employees with business before the Board.
With respect to time limits for filings with the agency, according to the Notice, the Board has unilaterally granted an extension of the ...
By: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
The shutdown of the federal government that took effect at 12:01 a.m. Tuesday October 1st has shut down all non-essential operations of the US government, including those of the National Labor Relations Board (Board or NLRB).
The Board’s Contingency Plan for Shutdown in the Absence of Appropriations (“Contingency Plan”) is now in effect, effective today. It details how the shutdown will impact the NLRB’s operations and what the shutdown means for employers, employees and unions with unfair labor practice ...
By Adam C. Abrahms, Steven M. Swirsky, and D. Martin Stanberry
On Tuesday, August 20th, in an opinion that follows in the wake of Noel Canning, United States District Judge Benjamin H. Settle dismissed an injunction petition filed by Ronald Hooks, a Regional Director of the National Labor Relations Board, on the grounds that he was “without power” to issue the underlying unfair labor practice complaint.
The Regional Director had initially filed the petition with the District Court in June in an effort to obtain a temporary injunction that would, among other things, have ...
On July 30th the Senate confirmed career union lawyer Kent Hirozawa (D) and retired AFL-CIO Associate General Counsel Nancy Schiffer (D) as well as seasoned management labor lawyers Philip Miscimarra (R) and Harry Johnson (R) to serve on the National Labor Relations Board. The Senate also confirmed current NLRB Chairman Mark Gaston Pearce (D).
The confirmations are of course the result of the Senate Republicans backing down in the face of the threat by Senate Democrats to change Senate rules so that they could force a vote, up or down, on President Obama's nominations for the Board and ...
By Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
With an eye toward next term, the Supreme Court announced on Monday, June 24th, that it had granted the National Labor Relations Board's (“NLRB”) petition for certiorari in Noel Canning v. NLRB. This news all but ensures that America’s highest court will determine not only the fate of President Obama's recess appointments to the Board, but also the extent of a president's Constitutional power to appoint individuals to various federal agencies, departments and courts without the advice and consent of the Senate.
By: Barry A. Guryan
In a case recently decided by the U.S. Court of Appeals for the Eleventh Circuit (National Labor Relations Board v. Harman and Tyner Inc., d.b.a. Mardi Gras Casino, Hollywood Concessions, Inc., 2013 U.S. App. LEXIS 7555), the Court affirmed a District Court’s decision to reject the National Labor Relations Board’s (“NLRB”) petition to obtain temporary injunctive relief seeking to reinstate six discharged employees pending the outcome of an administrative hearing brought as a result of a NLRB Complaint brought against Mardi Gras. This is one of a ...
By: Evan Rosen and Adam C. Abrahms
Yesterday, in a 2-1 decision, the Third Circuit Court of Appeals became the second appellate court to issue a ruling that President Obama’s recess appointments to the National Labor Relations Board (the “Board”) were constitutionally invalid because they did not occur during an “intersession recess” of the United States Senate. The case comes a few months after the D.C Circuit’s ruling in Noel Canning, which similarly held that the recess appointments were invalid. The Third Circuit and D.C. Circuit decisions, taken together, call ...
By Adam C. Abrahms and Steven M. Swirsky
In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized, to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly ...
By Adam C. Abrahms and Steven M. Swirsky
In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized, to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly ...
by: Steven M. Swirsky and D. Martin Stanberry
An NLRB Administrative Law Judge (“ALJ”) has found that two computer usage policies of University of Pittsburgh Medical Center (“UPMC”) violated the National Labor Relations Act (“Act”) because they had an unreasonable tendency to chill employee activities, including union organizing and employee discussions about terms and conditions of employment, protected by Section 7 of the Act.
The policies at issue prohibited employees from using the employer’s email and other electronic messaging systems “in a way that ...
By: Jill Barbarino and Steven M. Swirsky
In a recent decision involving social media posts by non-union employees, as well as employer rules prohibiting the sharing of information about compensation among co-workers and with non-employees, the NLRB affirmed the findings and proposed remedy recommended by a Board Administrative Law Judge, holding that the Facebook posts of three employees of an upscale clothing boutique in San Francisco constituted protected activity under Section 7 of the National Labor Relations Act and the termination of the employees’ for the posts was an ...
By Steven M. Swirsky and D. Martin Stanberry
Will Congress shut down the National Labor Relations Board? In a narrow, 219 – 209 vote this past Friday, the United States House of Representatives passed a bill that would strip the National Labor Relations Board (“Board”) of the authority to take any substantive action until the Supreme Court decides Noel Canning v. NLRB, 2013 WL 276024, (D.C. Cir. 2013) or the Senate confirms a quorum of members to the Board (as constituted, the Senate would have to confirm at least 2 new members to establish a quorum). As we reported, in Noel Caning
by: Adam C. Abrahms, James S. Frank, Kara M. Maciel, and Steven M. Swirsky
President Obama has taken action designed to bolster the National Labor Relations Board’s continuing move to bolster unions and take the National Labor Relations Act further into non-union workplaces. On April 9, 2013, President Obama announced his plan to submit three more nominees to serve the National Labor Relations Board (“NLRB”). If these and the two other pending nominations are confirmed this would bring the NLRB to its full complement of five Members.
These new nominations – who must be ...
by: Adam C. Abrahms, James S. Frank, Kara M. Maciel, and Steven M. Swirsky
President Obama has taken action designed to bolster the National Labor Relations Board’s continuing move to bolster unions and take the National Labor Relations Act further into non-union workplaces. On April 9, 2013, President Obama announced his plan to submit three more nominees to serve the National Labor Relations Board (“NLRB”). If these and the two other pending nominations are confirmed this would bring the NLRB to its full complement of five Members.
These new nominations – who must be ...
by: James S. Frank, Steven M. Swirsky, and D. Martin Stanberry
The Second Circuit Court of Appeals ruled on Wednesday February 27th, in NLRB v. Special Touch Home Care Servs. Inc., 11-3147 (2d.Cir., Feb. 27, 2013) (PDF) that the NLRB erred when finding that 48 home health aides were protected by the National Labor Relations Act (“Act”) when they participated in a strike after affirmatively telling their employer that they would be present for their shifts at their respective patients’ homes during the week of the strike.
While the NLRB had held that the workers actions were ...
Illinois charter schools may be subject to a union organizing drive under federal law pursuant to a recent ruling by the National Labor Relations Board. On December 14, 2012 The National Labor Relations Board (“NLRB”) found that a private, nonprofit corporation that operates a public charter school in Chicago was an employer under Section 2(2) of the National Labor Relations Act (NLRA). Chicago Mathematics & Science Academy Charter School, Inc. and Chicago Alliance of Charter Teachers and Staff, IFT-AFT (359 NLRB 41. This ruling emanated from the ...
By: Allen B. Roberts
I wrote the February 2013 version of Take 5 Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green. In it, I discuss an alternative view of five topics that are likely to impact employers in 2013 and beyond. One topic involved the potential for labor organizing by pop-up unions in break-out units.
Despite some perceptions of cohesiveness and political acumen, influence and wherewithal following the 2012 election cycle, labor unions represent only about 7.3 percent of the private sector workforce in the United ...
By: Allen B. Roberts
I wrote the February 2013 version of Take 5 Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green. In it, I discuss an alternative view of five topics that are likely to impact hospitality employers in 2013 and beyond. One topic involved the potential for labor organizing by pop-up unions in break-out units.
Despite some perceptions of cohesiveness and political acumen, influence and wherewithal following the 2012 election cycle, labor unions represent only about 7.3 percent of the private sector ...
I co-authored an Act Now Advisory on the decision issued by NLRB Administrative Law Judge (ALJ) Joel Biblowitz on January 8, 2013, finding that Quicken Loans’ agreements concerning proprietary and confidential information and non-disparagement unlawfully interfered with these unrepresented employees’ Section 7 rights to engage in concerted and protected activity. The ALJ decision adopts the expansive views of Acting General Counsel Lafe Solomon and further expands the Board’s involvement in non-union workplaces.
A number of cases challenging President Obama’s recess appointments of three of the five members of the National Labor Relations Board (NLRB) on January 4, 2012, are currently working their way through the federal court system. Perhaps the most significant is set to be argued before the DC Circuit tomorrow. Additionally, this past Friday the U.S. Court of Appeals for the Seventh Circuit (through a panel consisting of Judges William J. Bauer, Ilana Diamond Rovner and Ann Claire Williams) heard oral argument from the parties in another NLRB recess appointment case.
On Friday, November 16, I participated in a free 75-minute webinar discussion with Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board. The webinar was moderated by Terence H. McGuire of the Practical Law Company. We discussed:
- Factors that the NLRB considers when deciding whether to prosecute unfair labor practices based on these employment practices.
- Legal considerations surrounding these employment practices besides compliance with the National Labor Relations Act.
- The NLRB’s stance on what is and is not a lawful at will ...
On Friday, November 16, I participated in a free 75-minute webinar discussion with Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board. The webinar was moderated by Terence H. McGuire of the Practical Law Company. We discussed:
- Factors that the NLRB considers when deciding whether to prosecute unfair labor practices based on these employment practices.
- Legal considerations surrounding these employment practices besides compliance with the National Labor Relations Act.
- The NLRB’s stance on what is and is not a lawful at will disclaimer.
- Social Media ...
By: Steven M. Swirsky and Paul H. Burmeister
In yet another foray into non-union workplace issues, on October 31, 2012, the Office of the General Counsel of the National Labor Relations Board (“NLRB”) issued a pair of Advice Memoranda regarding similar issues with respect to ‘employment at-will’ policies contained in employee handbooks. (Rocha Transportation, 32-CA-086799 PDF and SWH Corporation d/b/a Mimi’s Café, 28-CA-084365 PDF). At issue in each case was at-will disclaimer language in an employee handbook which prohibits the employer’s representatives ...
I wrote the October 2012 edition of Take 5: Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green.
In it, I outline five actions that non-union employers should take to retain their union-free status in 2013:
- Assess your company's vulnerability.
- Ensure that company policies are compliant and pro-company.
- Analyze and arrange your company's workforce to avoid micro-units.
- Be prepared to respond at the earliest signs of union organizing.
- Watch for NLRB developments directed at non-union employers.
The following is an excerpt:
With the ...
The National Labor Relations Board (“NLRB”) has ruled that negotiations between the Hotel Bel-Air and UNITE HERE Local 11 were not at impasse when the employer implemented its last, best final offer, which included severance payments to union employees. Hotel Bel-Air, 358 NLRB 152 (September 27, 2012). The NLRB upheld the ALJ’s order for the employer to bargain with the Union and to rescind all the signed severance agreements containing a waiver of future employment with the Hotel Bel-Air.
The Hotel Bel-Air is a luxury hotel located in Los Angeles. The Hotel ...
It seems with each passing month the National Labor Relations Board or its Acting General Counsel opens yet another new front on its assault on non-union employers. A trend has emerged which puts labor law in conflict with standard employment practices. From hire, to control of the workplace and employer property, to the manner post-termination disputes are handled, the NLRB is directing employers to ignore conventional wisdom, and often times other legal mandates, to alter the way they deal with their employees.
Much attention has been given to the NLRB’s more direct pro-union ...
Over the past year the NLRB has issued a series of decisions which, taken together, mark a dramatic shift in the property rights of employers and expand the right of employees seeking to use their employer’s property to organize.
Two decades ago, in Lechmere, Inc. v. NLRB, the U.S. Supreme Court ruled that employers had a right to limit or deny non-employee union organizers access to their property provided the denial was nondiscriminatory and consistent with state law. For almost four decades, following its decision in Tri-County Medical Center, Inc., the NLRB has maintained that ...
It is Employment Law 101 – employment in the United States is generally at-will. Equally elementary to HR professionals and employment counsel is the use of a good, strong at-will policy and/or agreement. So common is the use of at-will policies and agreements that you would be hard pressed to find an employment handbook or an employer that does not make some use of them.
Notwithstanding this universal use, the National Labor Relations Board is poised to target non-union employers which maintain at-will policies or agreements. Although the NLRB has taken several steps to ease the ...
By: Bill Milani, Susan Gross Sholinsky, Dean Silverberg, Steve Swirsky, and Jennifer Goldman
EBG has prepared an Act Now Advisory on the NLRB’s recent stance on employment-at-will disclaimers, which are generally incorporated in employee handbooks. Two recent claims filed before the National Labor Relations Board in Arizona alleged that language used in employers handbooks regarding at-will employment (and how that arrangement could not be changed) were overly broad and could therefore chill employees’ rights under the National Labor Relations Act.
Continuing its effort to “outreach” to non-union employees and educate them on their rights under the National Labor Relations Act, the NLRB has launched a new webpage on Concerted Activity. The NLRB’s announcement of its new webpage made clear the page is designed to inform employees of their rights “even if they are not in a union.”
The webpage, in addition to giving basic descriptions of concerted activities, asserts that “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related ...
By: Paul Rosenberg
Last week the National Labor Relations Board (“NLRB”) urged the U.S. Court of Appeals for the Sixth Circuit to uphold its controversial Specialty Healthcare decision. The NLRB’s 3-1 split decision in Specialty Healthcare and Rehabilitation Center of Mobile, overturned a 1991 decision and held that an employer that challenges a proposed bargaining unit on the basis that it improperly excludes certain employees is required to prove that the excluded workers share “an overwhelming community of interest” with those in the proposed unit.
The NLRB ...
by James S. Frank, Steven M. Swirsky, Adam C. Abrahms, Donald S. Krueger, and D. Martin Stanberry
In a sharp setback for the National Labor Relations Board (the "Board"), a federal district court in Washington, D.C. (the "Court"), struck down the Board's election rules, which took effect on April 30, 2012, on technical grounds, holding that the Board did not have a properly constituted quorum of three members when it voted to change its election rules and procedures. See Chamber of Commerce v. NLRB, No. 11-2262 (JEB), Slip Op., 2012 WL 1664028 (D.D.C. May 14, 2012). This decision comes ...
By: Kara M. Maciel and Elizabeth Bradley
The U.S. Court of Appeals for the D.C. Circuit is rapidly becoming the champion of employers in the fight against the National Labor Relations Board’s (the “Board”) attempt to implement radical new rules governing the workplace.
Last month, on April 17, 2012, the D.C. Circuit enjoined the implementation of the Board’s rule requiring that employers post a notice informing employees of their right to join or form a union. Yesterday, the D.C. Circuit struck another blow to the Board by holding that its proposed union election rules ...
By: Paul Rosenberg
The National Labor Relations Board (“NLRB”) seems intent upon helping unions organize employees. It continues to pass rules, issue decisions, or announce new policies which will almost certainly facilitate union organizing. The latest example occurred on March 22 when the NLRB announced that in the next two weeks it is launching an “educational” website aimed at informing non-union employees of their rights under the National Labor Relations Act (“NLRA”). In conjunction with this unprecedented website the NLRB is preparing brochures which will ...
By: Paul Rosenberg
As described in our blog on January 5, 2012, the National Labor Relations Board’s (“NLRB”) new rules governing union elections introduce a host of changes which will place employers at a disadvantage. The new rules will go into effect on April 30, 2012, subject to a legal challenge pending in federal court. However, they are seemingly just the beginning of the NLRB’s concerted effort to drastically change a process which has been in place for several decades. A recent decision ignoring 75 years of precedence is illustrative.
by Steven M. Swirsky and Michael F. McGahan
On January 25, 2012, the National Labor Relations Board's ("NLRB") Acting General Counsel ("AGC") Lafe Solomon issued a second report on unfair labor practice cases involving social media issues. We discussed his earlier report in our Act Now Advisory of October 4, 2011.
The new report covers an additional 14 cases, all of which fall into the same two categories as the cases discussed in the earlier report, namely: (1) termination of employees resulting from statements made in social media forums about their working conditions or their ...
by David D. Green, Frank C. Morris, Jr., Allen B. Roberts
Two recent decisions on arbitration, one from the National Labor Relations Board ("NLRB" or "Board") and one from the Supreme Court of the United States, present an interesting question: Can employers limit employees from launching potentially costly class actions? Some employers have applicants or new employees sign a separate agreement, or include a clause in application forms or in the employee handbook (which employees acknowledge), requiring employees to bring future disputes to arbitration and to agree that the ...
by David D. Green, Frank C. Morris, Jr., Allen B. Roberts
Two recent decisions on arbitration, one from the National Labor Relations Board ("NLRB" or "Board") and one from the Supreme Court of the United States, present an interesting question: Can employers limit employees from launching potentially costly class actions? Some employers have applicants or new employees sign a separate agreement, or include a clause in application forms or in the employee handbook (which employees acknowledge), requiring employees to bring future disputes to arbitration and to agree that the ...
Arbitration agreements can be an effective way for employers in the hospitality industry to streamline and isolate an employee’s potential claims on an individual basis and protect themselves from a proliferation of lawsuits with many plaintiffs or claimants. But the National Labor Relations Board’s (“Board”) January 6, 2012 decision in D.R. Horton, Inc. and Michael Cuda, notably finalized by two Board Members on departing Member Craig Becker’s final day, has caused significant confusion as to how employers can enforce such arbitration ...
By: Ana S. Salper
No governmental body has been more active in addressing social media’s impact on the workplace than the National Labor Relations Board (“Board”). For both unionized and non-unionized employers, the Board has been aggressively scrutinizing the contours of employer discipline of employees for their activities on social media sites, and has regulated and constricted the scope and breadth of employer social media policies. Following his first report in August 2011, National Labor Relations Board Acting General Counsel Lafe Solomon has now released a ...
By: Evan Rosen
As Hospitalty Labor and Employment Law Blog readers are aware, on August 30, 2011, the National Labor Relations Board (the “Board”) issued a rule requiring employers to post notices informing employees of their right to join or form a union. We blogged about the impact of the notice and its requirements on hospitality employers here. The rule was originally supposed to go into effect in November, but was subsequently pushed back to January 31, 2012 as a result of mounting criticism against the rule. Indeed, several lawsuits have been filed by business ...
by: Matthew Sorensen
1. Deadline For Compliance With New ADA Accessibility Rules Approaching:
On March 15, 2012, hospitality establishments will be required to be in compliance with the standards for accessibility set by the Department of Justice’s final regulations under Title III of the ADA (2010 ADA Standards). The regulations made significant changes to the requirements for accessible facilities, and will require additional training of staff on updated policies and procedures in response to inquiries from guests with disabilities. Among the most significant ...
By: Paul Rosenberg
On December 9, 2011, the U.S. Court of Appeals for the District of Columbia (“the Court”) refused to enforce a National Labor Relations Board (“NLRB”) decision that a hotel unlawfully suspended hospitality workers who engaged in a work stoppage. Fortuna Enters. LP v. NLRB, D.C. Cir., No. 10-1272 (December 9, 2011). In this case, UNITE HERE – the largest hospitality union in the country – was seeking to organize employees of the hotel. While the union organizing drive was ongoing, the hotel suspended an employee pending an investigation into whether ...
By: Evan Rosen
Yesterday, the National Labor Relations Board (the “Board”) voted, 2-1, to approve its Resolution to drastically amend the rules governing union elections. While the Board’s stated reason for the amendment is to reduce unnecessary litigation, it is apparent that this purpose is a sham, and that the real reason is to make it significantly easier for unions to organize employees, especially those in the highly targeted hospitality industry.
The Board did not vote on the entire proposal detailed in their June 22, 2011Notice of Proposed Rulemaking, but rather ...
On September 28, 2011, a National Labor Relations Board (“NLRB”) administrative law judge (ALJ) found that Knauz BMW lawfully terminated the employment of Robert Becker, a salesperson, after he posted pictures and comments on his Facebook page about two different workplace incidents -- an automobile accident and a dealership sales event. The judge also found that several Employee Handbook policies, unrelated to social media postings, contained overly broad language. Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, Case No. 13-CA-46452 (Sept. 28 ...
Recent Updates
- U.S. Court of Appeals Decision Highlights Retaliation Risks During Employee Separations
- Fast Facts About the DOL Proposed Rule for Electronic Disclosures for ERISA Group Health Plans
- San Francisco Amends its Fair Chance Ordinance
- New Massachusetts Employer Notice Obligation
- Watch: Change Is Coming from the EEOC—but When? - Employment Law This Week