Tag Archives: Unions and Organizing

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

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

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

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

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

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

Misclassification of Independent Contractor is Violation of NLRA, ALJ Rules

The misclassification of an independent contractor is an unfair labor practice under the NLRA, according to Administrative Law Judge Dickie Montemayor. Intermodal Bridge Transp., No. 21-CA-157647 (Nov. 28, 2017). ALJ Montemayor said that, because such misclassification chills future concerted activity and necessarily “deprives and conceals available protections” afforded to employees under the NLRA, misclassification in … Continue Reading

Senate Committee Approves Trump’s NLRB General Counsel Nominee

A critical National Labor Relations Board nomination was approved by the Senate’s Committee on Health, Education, Labor and Pensions on October 18, 2017, according to Bloomberg BNA. Management-side labor attorney Peter Robb’s nomination to be the Board’s next General Counsel has been long-anticipated by those interested in seeing changes in the agency’s doctrinal jurisprudence. The … Continue Reading

Quickie Election Rules, Thumbs Up Or Down?: Board Member Kaplan Again Says No Comment

In what appears to be the second unpublished decision in which he has participated since becoming a Board Member, Member Marvin E. Kaplan once again has “expresse[d] no view with respect to whether he agrees or disagrees with revisions [to the NLRB’s election procedures] made by the [“quickie] Election Rule….” Garda CL Atlantic, Inc., Case … Continue Reading

NLRB Has Republican Majority: Emanuel Confirmed By Senate

Management-side lawyer William Emanuel was confirmed late on September 25, 2017 by the United States Senate to fill the last vacant seat on the National Labor Relations Board. Republican Marvin Kaplan was confirmed on August 2, 2017.   According to Bloomberg BNA, the Senate voted along party lines, 49-47, in confirming Emanuel and giving the Board … Continue Reading

Employers Take Note: Public’s Approval of Unions Goes Up, Gallup Reports

Apparently, reports of the demise of organized labor are greatly exaggerated. According to a Gallup poll conducted from August 2 to 6, 2017, 61% of adults answered that they approve when asked, “Do you approve or disapprove of unions?” This is the highest percentage since 2003, when 65% said they approve. While only 22% of … Continue Reading

Bills in Congress Would Short-Cut ‘Quickie Election Rule,’ ‘Micro-Unit’ Reversals

With the recent confirmation of Marvin Kaplan to the National Labor Relations Board, the Obama (pro-union) Board is officially transitioning into a Trump (pro-business) Board. With that, Republicans hope, will come a change in the Board’s jurisprudence with respect to labor-friendly rulings by the Obama Board. At the top of the “wish list for reversal” … Continue Reading

Labor Law Lessons from Our Favorite Films: Dirty Dancing (Weingarten Rights – Nobody Puts Weingarten In The Corner)

As noted in our previous post about Dirty Dancing, as part of its investigation into thefts of guests’ property, the resort owner interviewed staff dance instructor, Johnny Castle (Johnny denies involvement in the burglaries), to determine whether he had an alibi for the evening when Moe Pressman’s wallet was stolen. We now know that Castle responded … Continue Reading

Senate Confirms Kaplan for Vacant Board Seat, Moving NLRB Closer to Pro-Business Majority

The United States Senate has narrowly confirmed former counsel to the Commissioner of the Occupational Safety and Health Review Commission Marvin Kaplan to one of two vacant seats on the National Labor Relations Board. Kaplan’s confirmations leaves one vacant seat on the five-member Board. President Donald Trump has nominated management labor lawyer William Emanuel for … Continue Reading

Missouri Law Prohibits Costly Public Project Labor Agreements

On May 30, 2017, Missouri Governor Eric Greitens signed legislation generally barring public entities from requiring job-specific union contracts called “project labor agreements” on public construction projects.   The legislation, effective August 28, 2017, prohibits public entities from requiring contractors to enter into project labor agreements and from discriminating against, encouraging, or giving preferential treatment to … Continue Reading

Change is Coming: Management-Side Labor Attorney Emanuel Nominated to Labor Board

President Donald Trump has nominated management labor attorney William Emanuel to fill one of the two vacant seats on the five-member National Labor Relations Board. Trump previously had nominated attorney Marvin Kaplan, counsel to the Commissioner of the Occupational Safety and Health Review Commission, for the other vacant seat. If Kaplan and Emanuel, Republicans, are … Continue Reading

Federal Court Washes Away New York City’s Pro-Union Ordinance

A New York City ordinance requiring car wash companies to post a higher surety bond if they do not sign a union bargaining agreement covering their employees is invalid because it unlawfully favors unionization, and therefore runs afoul of the National Labor Relations Act, a federal district court judge has ruled on May 26, 2017. … Continue Reading

A Union Has Filed A Petition To Represent Your Employees: Make A List And Check It Twice!

Several deficiencies in a voter eligibility list justified rerunning an election that the employer had won, the NLRB has held, 2-1 (Chairman Philip Miscimarra dissenting in part). RHCG Safety Corp., 365 NLRB No. 88 (June 7, 2017). The Board found that more than 90% of the voters’ addresses on the list provided by the employer … Continue Reading

In Fastest Elections, Union Victory Rate Soars

Unions fare better in the quickest elections under the National Labor Relations Board’s April 2015 “quickie” election rules, according to a Bloomberg BNA report. Unions have continued to win elections about 67 percent of the time overall since the implementation of the rules, according to the report. However, two years after the rules went into … Continue Reading

Spending Bill Leaves NLRB Budget Unchanged From 2016, Nixes Electronic Voting

The National Labor Relations Board’s wish that its budget for fiscal year 2017 be increased over its FY 2016 budget apparently will not be granted. According to Politico, at $274.2 million, Congress has left the NLRB’s budget unchanged from FY 2016. This is despite NLRB General Counsel Richard Griffin’s view, stated in a March 10, … Continue Reading