Tag Archives: National Labor Relations Board

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

Employee’s Improper Access to Secured Area Outweighs Right to Engage in Concerted Activity, NLRB Finds

The National Labor Relations Board has held that an employee lost the protection of the National Labor Relations Act when he improperly accessed a secure area of the employer’s hotel, even though he did so in order to engage in otherwise protected concerted activity. KHRG Employer, LLC, 366 NLRB No. 22 (Feb. 28, 2018). The … Continue Reading

Infighting at NLRB

In response to new National Labor Relations Board General Counsel Peter Robb’s proposed changes to case processing and regional office structure, two groups of senior managers and organizations representing the Board’s front-line staff deemed Robb’s ideas an “existential threat” aimed to destroy the NLRB from the inside. A group of NLRB associate regional directors indicated … Continue Reading

Browning-Ferris Back in the Spotlight … and at the Court of Appeals?

The drama involving the National Labor Relations Board’s precedent-busting 2015 joint employer decision continues. Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), dramatically changed the playing field for employers who rely on nontraditional workforces. The NLRB transformed its prior joint employment standard in Browning-Ferris into a two-part test that permits a finding of … Continue Reading


The song “Changes,” written by Phil Ochs, provides an opportune prism to examine the arguably cataclysmic changes implemented and portended by the new employer-friendly majority at the NLRB at the end of 2017 and expected in 2018.   Sing along, enjoy the lilt. Don’t cry o’er case law that’s spilt.   Come sit by my … Continue Reading

NLRB Vacates Hy-Brand Joint Employer Decision Following Inspector General Report

In a surprising reversal, the NLRB on February 26, 2018, vacated its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), and restored the Board’s union-friendly joint employer test set forth in Browning-Ferris Industries, 362 NLRB No. 186 (2015) which Hy-Brand had overruled. The Board’s latest reversal came about as a result of … Continue Reading

NLRB Solicits Briefs on Independent Contractor Misclassification as ULP Issue

National Labor Relations Board Administrative Law Judge Arthur J. Amchan had ruled in Velox Express, Inc. that misclassification of employees as independent contractors violates Section 8(a)(1) of the National Labor Relations Act. 2017 NLRB LEXIS 486 (Sept. 25, 2017). Now the case is before the NLRB, and the Board has invited interested parties to file … Continue Reading

NLRB Continues to Ask Whether Voters Were Potentially Disenfranchised When Polls Not Timely Opened

The National Labor Relations Board has reaffirmed it will apply a “potential-disenfranchisement” test, not an “actual-disenfranchisement” test, in determining whether employees were affected by a late opening of the polls at an NLRB-conducted election. Bronx Lobster Place LLC, Case 02-RC-191753 (Feb. 2, 2018) (unpublished). The employer had lost the election 14-12; there was one challenged … Continue Reading

NLRB Joint Employer Decision at Risk?

The Board overturned Browning-Ferris Industries, 362 NLRB No. 186 (2015), in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), and returned to the more employer-friendly principles governing joint-employer status that existed prior to that decision. Now, however, the five individual Charging Parties in Hy-Brand have filed with the Board a Motion for … Continue Reading

NLRB Reverses Course, Permits Employer Unilateral Changes

The National Labor Relations Board has restored the right of unionized employers to implement changes that are consistent with past practice (as long as the change does not materially vary in kind or degree from past changes), even if that practice developed under a management rights clause in a collective bargaining agreement that has expired, … Continue Reading

Union Membership Rates Remain Low – And AFL-CIO Claims Victories

Despite the National Labor Relations Board’s “quickie election” rule, the percentage of unionized workers in the private sector remained essentially stable 2017, according to the Bureau of Labor Statistics of the U.S. Department of Labor. Only 6.5 percent of private-sector workers were in unions in 2017, an increase of 0.1 percent over the previous year. … Continue Reading

Kentucky’s Right-to-Work Law Survives Challenge

Kentucky’s right-to-work law has survived a challenge by the AFL-CIO and Teamsters union. The Kentucky legislation passed in the first week of the 2017 legislative session, making the Bluegrass State the 27th to adopt right-to-work legislation (Missouri was the 28th). A Kentucky state court dismissed the unions’ challenge to the law, which prohibits unions and … Continue Reading

NLRB Extends Time For Filing Responses To “Quickie Election” Request For Information

The National Labor Relations Board has extended the time for filing responses to its request for information regarding its 2014 election rule. The new date for submissions is Monday, March 19, 2018. In that request for information, the NLRB asked three questions: Should the 2014 Election Rule be retained without change? Should the 2014 Election … Continue Reading

Missouri to Vote on State’s Right-to-Work Law

When Missouri Republican Governor Eric Greitens signed “right-to-work” legislation into law on February 6, 2017, the Show-Me State was on the way to becoming the 28th state to prohibit unions and employers from requiring any employee to be a union member, or pay any dues or like amounts, as a condition of continued employment. Now, … Continue Reading

NLRB General Counsel Signals Important Changes at NLRB

National Labor Relations Board General Counsel Peter Robb continues to outline his plans for change at the NLRB.  First came his sweeping five-page Memorandum directing NLRB Regional Offices to submit to his Division of Advice for review cases involving “significant legal issues.” See our article, “New Labor Board General Counsel Issues Plans For Reversing Course.”  That was … Continue Reading

Most NLRB Personnel on Furlough Until Appropriations Bill Signed into Law

Bloomberg BNA reports that 99.4 percent of the National Labor Relations Board’s employees (1,426 out of 1,435) are furloughed beginning January 22, 2018, according to the Board’s contingency plan. If your organization has a case before the Board, expect to receive a communication from the Board Agent assigned to the case noting the Regional Office … Continue Reading

Management-Side Attorney John Ring Selected for Seat on Labor Board

President Donald Trump has nominated John Ring, a Washington, D.C.-based management-side labor and employment lawyer, to fill the vacant seat on the five-member National Labor Relations Board. If confirmed, Ring would replace former-NLRB Chairman Philip Miscimarra, a Republican, and restore a 3-2 Republican majority to the Board. Miscimarra’s term ended on December 16, 2017. Currently, … Continue Reading

New NLRB GC Opens Door to Possible Widespread Bargaining Unit Changes

The National Labor Relations Board General Counsel’s Division of Operations Management has issued a sweeping Memorandum to Regional Offices setting forth a variety of circumstances under which those offices should process “currently active [representation] cases” applying the NLRB’s recent decision (PCC Structurals, Inc.) that overruled Specialty Healthcare. “Currently active cases” is defined very broadly – … Continue Reading

Board Overrules Specialty Healthcare

In a stunning development, the National Labor Relations Board has overruled Specialty Healthcare, the so-called “micro-unit” decision and replaced the “overwhelming community-of-interest” standard adopted there with the traditional “community-of-interest” standard for determining an appropriate bargaining unit in union representation cases. PCC Structurals, Inc., 365 NLRB No. 160 (December 15, 2017). Under Specialty Healthcare, if a … Continue Reading

NLRB Overrules Browning-Ferris Joint Employer Standard, Reinstates Former Test

The National Labor Relations Board has overruled, 3-2, Browning-Ferris Industries, 362 NLRB No. 186 (2015) and returned to the pre–Browning Ferris standard that governed joint-employer liability. Hy-Brand Industrial Contractors Ltd., 365 No. 156 (December 14, 2017). The Board wrote: “We find that the Browning-Ferris standard is a distortion of common law as interpreted by the … Continue Reading

Trump Board Overrules Workplace Rules Analysis

In a stunning development, the National Labor Relations Board has decided that when determining the legality of a facially neutral rule under the National Labor Relations Act, it will consider (i) the nature and extent of the potential impact on rights protected by the Act, and (ii) legitimate justifications associated with the rule. By a … Continue Reading

Hold On! — Democratic Senators Challenge New Labor Board GC’s Plans

Senator Patty Murray (D-Wash.), Ranking Member, Committee on Health, Education, Labor and Pensions, and Senator Elizabeth Warren (D-Mass.) have written to  new NLRB General Counsel Peter B. Robb “to express serious concerns regarding Memorandum 18-02, which [Robb] issued to National Labor Relations Board [] Regional Directors on December 1, 2017.” For more on NLRB General … Continue Reading

Labor Board Asks: Retain, Modify, or Rescind ‘Quickie Election’ Rules?

A Request for Information regarding the “Quickie Election” representation regulations (at 29 CFR parts 101 and 102) will be published on December 13, 2017, the National Labor Relations Board has announced. The RFI will seek input on the 2014 amendments to representation case procedures that reduced the opportunities for employers to communicate with their employees … Continue Reading