Tag Archives: NLRB

Senate Confirms Trump NLRB Nominee Marvin Kaplan; Delays Confirmation of William Emanuel

On June 19, we predicted that the Trump administration was expected to formally announce attorneys Marvin Kaplan and William Emanuel as candidates to fill the two vacant slots on the National Labor Relations Board. As predicted, President Trump did, in fact, nominate Messrs. Kaplan and Emanuel to the Board earlier this summer. The nominations went … Continue Reading

Webinar: Employment Law Worldview Webinar Series – the United States

Squire Patton Boggs presents a series of webinars focusing on the key labour and employment issues in countries throughout Europe, the Middle East, Asia Pacific and the United States. Given in English by our local labour and employment law experts, each 60-minute webinar comprises a 50-minute presentation followed by a 10-minute online question and answer … Continue Reading

NLRB Majority Reaffirms Standard Applied in Employer Rules Cases Over Dissent Advocating New Standard

It’s a nearly universal truth that all employers have certain rules they have put in place to govern certain aspects of the workplace. Such rules include workplace conduct rules, rules relating to use of social media, solicitation and distribution policies, and the list goes on.  Many if not most employers inform employees of these rules … Continue Reading

NLRB Issues New Captive Audience Rule for Mail-Ballot Elections

The NLRB opened a busy February by overruling a rule it established in 1959 governing when captive audience meetings may be held for mail-ballot elections. For nearly 60 years, there was a divide in the way the NLRB handled captive audiences for mail-ballot elections and manual (in-person) elections. For mail-ballot elections, the NLRB followed the … Continue Reading

NLRB Not Waffling on Pre-employment Class-Action Waivers Despite Fifth Circuit Reversals

Nearly two years after Waffle House Inc. employee Carrie Harris filed an unfair labor practices charge, the Georgia-based breakfast chain was unable to butter up the National Labor Relations Board (NLRB). Harris’ complaint alleged that Waffle House’s arbitration agreement that employees were required to execute as a condition of their employment violated the National Labor … Continue Reading

Executive Action: Obama’s Legacy and 2016 Predictions (Part 2 of 2)

As promised in our previous post, today we conclude our predictions on President Obama’s 2016 executive activity.  While we believe the President’s final executive orders will target immigration and perhaps even corporate political expenditures, we predict executive agency action will cover a broad range of pressing labor and employment issues.  With federal legislative gridlock expected … Continue Reading

NLRB Expands Its Definition Of ‘Joint Employer’

In a highly-anticipated decision, a divided National Labor Relations Board (NLRB) significantly expanded its definition of “joint employers.”  The new standard portends to have substantial implications to employers across a broad spectrum, but most significantly in the franchisor-franchisee and temporary labor context.  In Browning-Ferris Industries, three members of the five-member Board did away with the … Continue Reading

Noel Canning, Part Deux? Kind of… D.C. Circuit Rules NLRB Complaints Issued By Former Acting General Counsel Are Voidable (But Not Void)

With last year’s Supreme Court decision in Noel Canning only slightly in the rearview mirror, another court has ruled that the NLRB made yet another unlawful end-run around the laws that limit its authority to act.  In a case involving an Arizona ambulance company, the U.S. Court of Appeals for the D.C. Circuit ruled on … Continue Reading

NLRB’s “Ambush Election” Rules Survive Federal Court Challenge

Those of you following the controversial recent revisions to the National Labor Relations Board’s union election rules know that those rules went into effect in April of this year, over a Congressional disapproval resolution.  (See our previous posts concerning the issuance and implementation of the rules here, here, and here.)  These rule changes have been labeled … Continue Reading

Two Recent D.C. Circuit Decisions Reverse the NLRB, Restore Common Sense

In two recent decisions out of the D.C. Circuit Court of Appeals, the court reversed the National Labor Relations Board (NLRB or Board), finding that Board’s conclusion that the employers engaged in unfair labor practices in each case ignored simple realities, and instead restored the common sense balance between employees’ and employers’ rights with respect … Continue Reading

NLRB’s Isolated Position on Class and Collective Action Waivers Takes Another Hit

Fifth Circuit Rejects NLRB’s En Banc Hearing Request, Setting Up Likely Denial of Enforcement in Murphy Oil, USA  In its 2012 decision in D.R. Horton, Inc., the National Labor Relations Board (NLRB) held that employers that require employees to agree to arbitrate employment-related claims, and to do so only on an individual basis, waiving the … Continue Reading

NLRB Weakens Employers’ Ability to Conduct Effective Workplace Investigations

At some point – and often with considerable frequency – employers must conduct internal investigations related to possible employee misconduct.  Whether those investigations involve allegations of sexual harassment, hostile work environment, violation of drug or alcohol policies, theft, damage to equipment, or the like, maintaining confidentiality in the investigatory process is vital to ensuring the … Continue Reading

Congress Gears Up Against NLRB’s Pro-Labor Agenda

Although early in its first session, the new Republican-controlled Congress is living up to the expectation that it will force numerous showdowns between the legislative and executive branches of our federal government.  Included in the many items upon which the new Congress and President Obama will likely disagree are certain National Labor Relations Board (“NLRB”) … Continue Reading

President Obama Pushes Increased Funding and High Hopes for the DOL, EEOC, and NLRB in the FY 2016 Proposed Budget

On February 2, 2015, President Obama released his proposal for the FY 2016 budget.  In it he requests across the board funding increases for the Department of Labor (10.9% increase from FY 2015), the Equal Employment Opportunity Commission (2.3% increase from FY 2015), and the National Labor Relations Board (1.4% increase from FY 2015). Considering the disparity between … Continue Reading

Another early holiday gift to labor from the NLRB: Board implements final “ambush” election rule

On the heels of its decision requiring employers to permit employees with access to employer email systems to use those systems to send emails concerning non-business related matters, including union organizing and other communications concerning terms and conditions of employment (for example, soliciting support for wage and hour class actions) – see our post here on … Continue Reading

D.R. Horton – The Sequel: NLRB Finds Collective Action Waiver in Arbitration Agreement Unenforceable, Rejects Circuit Court Precedent on the Issue

A three-member majority of the National Labor Relations Board on October 28 reaffirmed employees’ right to bring class and collective action claims [pdf].  In a case against Murphy Oil USA, the Board stood by its earlier decision in D.R. Horton, Inc. [pdf] in which it ruled that requiring employees to waive their right to bring class and … Continue Reading

Termination of US Employees for Posting “Sandwich Contamination” Posters was Illegal According to NLRB

On August 21, 2014, the National Labor Relations Board (NLRB) issued a decision that broadens the line to which potentially disloyal actions by employees will be treated as protected activity.  In MikLin Enterprises, Inc. dba Jimmy John’s and Industrial Workers of the World [pdf], the NLRB ruled that posters and press releases alleging that Jimmy John’s … Continue Reading

US Labor Board Blesses Picket Line Crotch Grabbing

The National Labor Relations Board (“NLRB”) ruled that Illinois Consolidated Telephone Co. violated the National Labor Relations Act when it suspended striking switchman Eric Walters for making an obscene gesture.  Specifically, Walters grabbed his crotch in a sexual gesture aimed at an employee crossing the picket line.  While the Labor Board did find credible evidence … Continue Reading

US Supreme Court Strikes Down President’s Recess Appointments to the National Labor Relations Board – NLRB Must Go Back to the Drawing Board, Again.

Decisions issued by National Labor Relations Board between January 4, 2012 and August 13, 2013 now void In the words of Yogi Berra, it’s déjà vu all over again at the National Labor Relations Board. Back in late 2007, due to congressional deadlock over then-President Bush’s nominees to the National Labor Relations Board (the “NLRB” … Continue Reading

NLRB Gives the OK for US College Athletes to Unionize

In January, Northwestern University football players petitioned the NLRB to be recognized as a union.  (Previously published here).  Yesterday, to the surprise of many, the National Labor Relations Board (NLRB) granted the unprecedented request, finding that grant-in-aid scholarship football players are “employees” within the meaning of the federal law and are therefore eligible to unionize. … Continue Reading

Facebook Threat Against Union Member That He Will “get 2 black eyes” If He Crosses the Picket Line Is Not Unlawful According to the NLRB

On February 12, 2014, the National Labor Relations Board decided to continue to protect the right of union members to post freely on Facebook and this time, even finds that the Union itself has no obligation to disavow or remove comments which very clearly threatened some of its members if they crossed the picket line. … Continue Reading

Fifth Circuit Overrules Key Portion of recent NLRB Decision – Arbitration Agreements Containing Class Action Waivers Held Enforceable

In a highly anticipated decision, the Fifth Circuit Court of Appeals declined to enforce the key portion of the National Labor Relations Board’s (NLRB) decision in D.R. Horton, Inc.  In January 2012, the NLRB ruled that an arbitration agreement between an employer and an employee that required the employee to bring any claims against the … Continue Reading

A Year of NLRB Decisions Are Ruled Invalid By The U.S. Court of Appeals for the D.C. Circuit

For the past year, the NLRB has issued a large number of decisions on a multitude of issues.  After today’s 47-page ruling [pdf] from DC Circuit Judges David B. Sentelle, Karen LeCraft Henderson and Thomas B. Griffith, those decisions are now invalid. The Court held that President Obama’s January 4, 2012 recess appointments of Sharon Block, … Continue Reading
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