Tag Archives: National Labor Relations Board

NLRB’s New Joint Employer Standard Faces First Legislative Challenge

Two days after returning from a scheduled congressional recess, senior Republican lawmakers introduced the first legislative challenge to the NLRB’s new joint employer standard, which was handed down last month in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). The Board’s decision in Browning-Ferris makes a sweeping departure from 30 years … Continue Reading

Rats, Pigs and Cats, Oh My: Union’s Display of Large Inflatable Animals and Bannering at Las Vegas Resort was Lawful, Board Judge Holds

Las Vegas, Nevada-based Laborers Local 872 did not violate the National Labor Relations Act by displaying four-foot high banners and inflatable animals 18 to 20 feet high around the perimeter of a casino and resort complex (Westgate), and partially blocking cars and patrons, because Westgate contracted with a non-union contractor (Nigro) to perform renovation work … Continue Reading

NLRB Issues New Standard for Determining Joint Employer Status

As expected, the National Labor Relations Board has adopted a new standard for determining whether two employers are joint employers for purposes of collective bargaining. Browning-Ferris Industries of California, 362 NLRB No. 186 (August 27, 2015). In the 3-2 decision (Members Miscimarra and Johnson dissenting), the NLRB held: We will no longer require that a … Continue Reading

Complaint Issued by NLRB’s Acting General Counsel was Unauthorized, Federal Appeals Court Rules

Vacating a Board order adopting an Administrative Law Judge’s decision holding that an employer violated Sections 8(a)(1) and (5) of the National Labor Relations Act by ceasing to pay longevity pay under a collective bargaining agreement between the employer and the union representing its employees, the U.S. Court of Appeals for the D.C. Circuit has … Continue Reading

NLRA Protection Accorded Class or “Collective” Action Brought By Single-Employee

The National Labor Relations Board has decided that “a single employee who files a lawsuit ostensibly on behalf of himself and other employees is engaged in protected concerted activity.” (Emphasis provided.) Beyoglu, 362 NLRB No. 152 (July 29, 2015). Marjan (Mario) Arsovski was discharged after he filed a Fair Labor Standards Act collective action lawsuit. … Continue Reading

NLRB Declines to Exercise Jurisdiction In Northwestern Case

The National Labor Relations Board has declined to assert jurisdiction in the case involving Northwestern University football players who receive grant-in-aid scholarships. As a result, the Board did not determine if the players were employees under the National Labor Relations Act.  Instead, the Board exercised its discretion not to assert jurisdiction and dismissed the representation petition … Continue Reading

NLRB Judge Decides Employer Not Required to Agree To Union Security or Dues Checkoff Provisions in Initial Collective Bargaining Agreement

An administrative law judge of the National Labor Relations Board has rejected the contention of the NLRB’s General Counsel that an employer bargained in bad faith by refusing to agree to the union’s “union security” (requiring all employees to join the union) and “dues checkoff” (requiring employees to have their union dues deducted from their … Continue Reading

NLRB ALJ Follows Invalidated NLRB Decision on Bargaining about Discipline

Although the National Labor Relations Board’s 2012 decision in Alan Ritchey, Inc., 359 NLRB No. 40 was invalidated by the United Supreme Court in Noel Canning v. NLRB (2014) because of improper Board recess appointments, an NLRB Administrative Law Judge has decided to follow the “principles” contained in Alan Ritchey anyway, concluding that during the … Continue Reading

Chamber of Commerce’s Challenge to NLRB “Quickie Election Rule” Fails in District Court

The National Labor Relations Board has won a second legal victory in connection with its “quickie” election rule. U.S. District Court Judge Amy Berman Jackson has rejected arguments raised by the U.S. Chamber of Commerce and other business groups seeking to invalidate the rule for exceeding the Board’s authority under the National Labor Relations Act … Continue Reading

What’s Next for Contractual Dues-Checkoff Provisions?

As we previously observed here, no cases that were invalidated by the United States Supreme Court in Noel Canning v. NLRB remain for the National Labor Relations Board to decide. However, not all of the decisions that were nullified have been reaffirmed. One of the more significant decisions that has not been reaffirmed is WKYC-TV, … Continue Reading

New Texas Law Says Franchisors, with Exception, Not Employers of Franchisees’ Workers

The Texas Labor Code has been amended to provide that a franchisor is not considered an employer for claims related to employment discrimination, wage payment, the Texas Minimum Wage Act, and the Texas Workers’ Compensation Act, among other laws. According to S.B. 652, this is so unless the franchisor has been found by a state … Continue Reading

NLRB Stands by Decisions Challenging Employers Seeking to Limit Discussion of Investigations and Disclosure of Witness Statements

In its last-minute push to clear its docket of all cases in which its decisions were invalidated by the United States Supreme Court’s ruling in Noel Canning v. NLRB, the National Labor Relations Board has issued two new significant decisions, substantially reaffirming its earlier determinations. In Banner Estrella Medical Center, 362 NLRB No. 137 (June … Continue Reading

Board Permits Questioning of Employee in Workplace Misconduct Investigation, Despite Protected Activity

An employee’s dishonesty during his employer’s lawful investigation into workplace complaints could serve as a basis for discipline of the employee, even if the conduct in question took place during the employee’s exercise of Section 7 rights under the National Labor Relations Act, the National Labor Relations Board has decided. Fresenius USA Manufacturing, Inc., 362 … Continue Reading

NLRB Has Cleared Up Cases after Supreme Court’s Invalidation of 2012 Recess Appointments

In Noel Canning v. NLRB, the United States Supreme Court concluded that President Barack Obama’s three recess appointments to the National Labor Relations Board in January 2012 (Sharon Block, Richard Griffin, and Terence Flynn) were invalid.  As a result, hundreds of Board decisions were invalidated. Now, Politico reports that an NLRB spokesperson said that there … Continue Reading

NLRB’s Notice of Bargaining Obligation Purports to Explain All

Amid the noise of the National Labor Relations Board’s new representation case rules, which became effective on April 14, 2015, the Board, without any fanfare, has begun issuing a new document, entitled “Notice of Bargaining Obligation,” as a companion piece accompanying the “Certification of Representative” the Board issues after a union prevails in a representation … Continue Reading

NLRB Expands Remedies for Employer’s Violation of Employee’s Weingarten Rights

The NLRB has issued a decision allowing new remedies — reinstatement and back pay (“make-whole relief”) — for certain violations of an employee’s “Weingarten” rights. E.I. Dupont de Nemours & United Steel Workers Local 6992, 362 NLRB No. 98 (May 29, 2015). In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the U.S. Supreme … Continue Reading

Pro-Union Worker Fired For Refusing Drug Test, Not For Anti-Union Reasons, NLRB ALJ Finds

In a strongly worded opinion, a National Labor Relations Board Administrative Law Judge sustained an employee’s discharge for refusing to drug test against an allegation of unlawful discrimination because the employee had engaged in union activity. Ozburn-Hessey Logistics, LLC, JD (ATL) 08-15 (NLRB ALJ April 28, 2015). The Judge repeatedly refused to credit the employee’s … Continue Reading

NLRB Poised to Change Rule for Unionizing Temporary Workers

Setting the stage for another likely change in Board law, the NLRB has granted review over a Regional Director’s dismissal of an election petition, where the Union sought to represent in the same bargaining unit a contractor’s own employees and temporary employees provided to the contractor by a staffing company.     In its May 18, 2015, … Continue Reading

NLRB Finds Union Improperly Interfered with Decertification Election

A union “interfere(d) with employee free choice” during the run-up to an NLRB election to decertify the union by seeking the discharge of the decertification Petitioner for alleged non-payment of dues and fees to the union, the National Labor Relations Board has held in an unpublished opinion. Bio-Medical Applications of New Jersey, Inc., Case 22-RD-114233 … Continue Reading

Court Refuses to Restrain New NLRB Election Rules

A federal court in Washington, D.C. has refused to issue a temporary restraining order blocking the National Labor Relations Board’s (“NLRB’s”) new election rules. On April 15, the day after the new rules went into effect, a union seeking to represent carpenters and laborers working for Baker DC LLC in the Washington, D.C. area filed … Continue Reading

Successor Employer Can Add Supervisor Duties to Jobs, NLRB General Counsel Found

The Division of Advice of the National Labor Relations Board’s Office of the General Counsel has determined that a “Burns” successor employer was permitted to add supervisory functions to job duties of the predecessor employer’s union-represented nurses because it timely informed the nurses and the union of its intention to do so. Chestnut Health and … Continue Reading

Board Orders Conditional Reinstatement of Undocumented Workers

The National Labor Relations Board has held on remand from a federal appeals court that “conditional reinstatement is an appropriate remedy where an employer knowingly employed individuals who lack authorization to work in the United States and then discharged them in violation of the N[ational] L[abor] R[elations] A[ct].”  Mezonos Maven Bakery, Inc., 362 NLRB No. … Continue Reading

Board Attorneys’ ‘Progressive’ View of Union’s Alleged ‘Regressive’ Bargaining Sends Parties Back to Negotiating Table

The National Labor Relations Board’s General Counsel’s Office, Division of Advice, has ordered dismissal of an unfair labor practice charge alleging bad faith “regressive” bargaining by a union. In this case, after the employees rejected decisively the employer’s final offer, the union bargaining team resumed negotiations with new demands and proposed modifications of previously agreed-upon … Continue Reading

NLRB’s “Quickie Election” Rules Effective Today

The National Labor Relations Board’s new “quickie election” rules go into effect today. (Two lawsuits challenging the rules are still pending.) Read here for more information on the rules and their impact on your organization. To learn more about the rules and other important NLRB developments, attend Jackson Lewis’ seminar, “Surveying the New Labor Law … Continue Reading