Tag Archives: National Labor Relations Act

NLRB’s Proposed Rule Adopts Pre-Browning-Ferris Joint-Employer Standard

The National Labor Relations Board has announced that it will publish a “Notice of Proposed Rulemaking” in the Federal Register regarding its joint-employer standard. The notice will be published on Friday, September 14. The proposed rule will adopt the pre-Browning-Ferris standard for determining if two or more employers are joint employers of employees. The “Notice … Continue Reading

NLRB Invalidates Voluntary Severance Agreements, Orders Reinstatement and Full Back Pay

The National Labor Relations Board has upheld an Administrative Law Judge’s decision to invalidate 11 severance agreements that provided payments to employees laid off shortly after an election in violation of the National Labor Relations Act.  The 11 individuals were awarded full reinstatement and back pay. Terex, 366 N.L.R.B. No. 162 (Aug. 21, 2018). The … Continue Reading

Will Filing A Class Action Continue To Be Protected Concerted Activity?

The National Labor Relations Board will reconsider whether an employer can discipline an employee for the act of filing a class action, which has long been held to be protected concerted activity under the National Labor Relations Act. Cordua Restaurants, Inc., 16-CA-161380 (Aug. 15, 2018) (Cordua II). The Board, sua sponte, vacated its Decision and … Continue Reading

Pearce Nominated for Third Term on NLRB

Mark Gaston Pearce has been nominated by President Donald Trump to serve a third term on the National Labor Relations Board. Pearce, a 2010 recess-appointee under then-President Barack Obama, was reappointed to a second term in 2013. That term expired on August 27, 2018. Pearce’s nomination now heads to the Senate for consideration. Pearce was … Continue Reading

NLRB GC Institutes Changes to Certain Decision-Making Processes

The National Labor Relations Board’s General Counsel’s office has issued an internal Memorandum (“Changes to Case Processing Part 1”) to all regional directors, officers-in-charge, and resident officers announcing immediate enactment of case processing changes. The six-page memorandum, obtained by Bloomberg BNA, addresses four policies. Memorandum ICG 18-06 (July 30, 2018). According to the Memorandum, the … Continue Reading

NLRB Revisiting Rule on Employees Use of Employer’s Email System

The National Labor Relations Board has invited briefs on whether it should modify or overrule its rule under the National Labor Relations Act, established in Purple Communications, that employers must permit employees who have been provided access to their employer’s email system to use that system for statutorily protected communications on their non-working time. Rio … Continue Reading

Weingarten Rights Not Violated; Employee Lawfully Terminated for Refusal to Take Drug/Alcohol Test

An employee’s Weingarten rights have limits, especially as to drug and alcohol testing, where time is often of the essence, an NLRB Administrative Law Judge has held. Fred Meyer Stores, Inc., No. 19-CA-206136 (July 2, 2018). The National Labor Relations Board has long-recognized unionized employees’ right to have a union representative present for investigative meetings … Continue Reading

NLRB Member Pearce, One of Two Remaining Democrats, May Not Get Third Term

The Trump Administration is being asked not to give Member Mark Gaston Pearce, one of two remaining Democrats on the National Labor Relations Board, another term after his current term, his second, expires on August 27, Bloomberg BNA has reported. Industry groups reportedly have asked the President to delay re-nominating Member Pearce to a third … Continue Reading

NLRB Expands Its Alternative Dispute Resolution Program

The National Labor Relations Board has announced it will begin a pilot program to encourage parties to use its Alternative Dispute Resolution program. Under the pilot program, the NLRB’s Office of the Executive Secretary will proactively engage parties with cases pending before the Board to determine whether the case is suitable for ADR. The process … Continue Reading

NLRB GC: Employer Can Unilaterally Implement Decisions Made Before Union Election Victory

An employer lawfully unilaterally implemented a stricter tardiness and absentee policy even though a union had recently won an election to represent its workers, according to a memorandum released by the National Labor Relations Board General Counsel’s Division of Advice. Cott Beverages, Inc., No. 16-CA-206068 (Div. of Advice, Apr. 26, 2018, released May 15, 2018). … Continue Reading

NLRB GC: Employer Can Refuse Union’s Request to Record Meetings and Interviews

The National Labor Relations Board General Counsel’s Division of Advice has concluded that an employer could refuse to allow a union’s representatives to record monthly team meetings and investigatory interviews. GE Appliances, Haier, 21-CA-202535 (Div. of Advice, Apr. 17, 2018, released May 15, 2018). The Division found the refusal was lawful based upon the Board’s … Continue Reading

Seattle Ordinance Giving Drivers Right to Collectively Bargain Not Preempted by NLRA

A landmark law giving drivers of app-based transportation companies, such as Uber and Lyft, the right to collectively bargain is not preempted by the National Labor Relations Act, a three-member panel of the Ninth Circuit Court of Appeals has ruled. U.S. Chamber of Commerce v. City of Seattle, No. 17-35640 (9th Cir. May 11, 2018). … Continue Reading

NLRB Chair Responds to Senators, Confirms NLRB Will Engage in Rulemaking for Joint Employer Standard

New NLRB Chairman John Ring has stated that the Board intends to use rulemaking to create a new joint employer standard. The statement was in response to a May 29 letter from Democratic Senators Elizabeth Warren, Kirsten Gillibrand, and Bernie Sanders that harshly questioned whether the agency planned to use rulemaking to create a new … Continue Reading

NLRB General Counsel Issues Employer-Friendly Work Rule Guidance

On June 6, NLRB General Counsel Peter Robb, the NLRB’s chief prosecutor, issued a detailed, 20-page Memorandum to the NLRB Regional Offices entitled “Guidance on Handbook Rules Post-Boeing.” (As General Counsel, Robb decides which unfair labor practice charges filed in the various NLRB regional offices should be pursued. Through his memorandum, GC Robb has instructed … Continue Reading

Labor Board Considers Joint Employer Standard Rulemaking

The National Labor Relations Board has begun the process to consider rulemaking to establish a standard for determining joint employer status under the National Labor Relations Act, according to the Board’s filing in the Unified Agenda of Federal Regulatory and Deregulatory Actions. The current standard is set forth in Browning-Ferris Industries, 362 NLRB No. 186 … Continue Reading

Supreme Court Rules Class Action Waivers in Employment Arbitration Agreements Valid

Class action waivers in employment arbitration agreements do not violate federal law, the U.S. Supreme Court has ruled in a much-anticipated decision in three critical cases. Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP et al. v. Morris et al., No. 16-300; National Labor Relations Board v. Murphy Oil USA, Inc., et … Continue Reading

NLRB Failed to Support Conclusion that Employee’s Disparaging Comments Were Protected, Not Disloyal

The U.S. Court of Appeals for the District of Columbia Circuit has refused to enforce the NLRB’s order finding that an employee’s discharge violated the National Labor Relations Act because the Board did not satisfy the Supreme Court’s two-prong Jefferson Standard test for determining whether an employee’s disparaging statements to third parties about his employer … Continue Reading

Jackson Lewis Responds to NLRB Request for Information on Election Rules

Jackson Lewis, which has represented management before the National Labor Relations Board for 60 years, has filed its comments suggesting several important changes to the NLRB’s far-reaching 2014 election rule amendments.   In December 2017, the Board asked the public to submit comments on the efficacy of its 2014 election rule amendments, expressly asking if … Continue Reading

Changes in Circumstances Counsel against NLRB Issuing Bargaining Order, Court Concludes

A bargaining order is an extreme form of relief and should not be issued without careful consideration of whether changed circumstances render such an order inappropriate, the U.S. Court of Appeals for the Second Circuit, in New York, has explained, remanding an unfair labor practice case to the Board. Novelis Corp. v. NLRB, 2018 U.S. … Continue Reading

Charter Schools Covered by NLRA? Not in Texas

The U.S. has more than 6,000 charter schools. They are authorized in almost every state. While state laws vary, their purpose is the same: to permit alternatives to traditional public schools, unbound by local school districts or district-wide collective bargaining agreements that can stifle innovation. These laws frame charters as public schools, subject to the … Continue Reading

Labor Board Nominee Ring Approved By Senate Committee

The Senate Health, Education, Labor and Pensions (HELP) Committee has confirmed Republican John Ring to the National Labor Relations Board by a 12-11 vote. The next step is a vote by the full Senate. The Board is currently composed of two Democratic and two Republican appointees. If Ring is confirmed by the full Senate, the … Continue Reading
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