Yesterday, the U.S. Court of the Appeals for the Third Circuit held that the NLRB lacked jurisdiction to take action where it lacked three Board Members who had been properly appointed. In NLRB v. New Vista Rehabilitation and Nursing, a majority of the panel held that President Obama’s appointment of Craig Becker to the Board… Continue Reading
Category Archives: Labor Law & NLRB
Subscribe to Labor Law & NLRB RSS FeedNLRB Finds Employee Handbook Provision Illegal
Posted in Labor Law & NLRB, Laws & RegulationsThe NLRB has issued a series of decisions in recent months finding various employee handbook provisions unlawful. The Labor Board’s scrutiny of handbooks continued recently in another case, Direct TV. In that case, the employer promulgated the following rule: If law enforcement wants to interview or obtain information regarding a Direct TV employee, whether in person… Continue Reading
Labor Union Membership Declines Sharply for Younger Workers
Posted in Labor Law & NLRB, Unions, Workplace TrendsThe Bureau of Labor Statistics released its annual report on union membership last week. Like most of these reports in recent years, it was bleak and gloomy news for organized labor. Private sector union membership continued its downward plummet and now stands at a paltry 6.6%. This is down from 6.9% last year. Perhaps, even… Continue Reading
NLRB Recess Appointments Ruled Unconstitutional
Posted in Labor Law & NLRB, Laws & Regulations, LitigationOn January 25, 2013, the United States Court of Appeals for the D.C. Circuit held that President Obama’s recess appointments to the NLRB over the past two years are unconstitutional because the appointments did not occur while the Senate was in a formal recess (Republican members of the Senate, during the period that normally would… Continue Reading
NLRB Announces New Rule on Witness Statements
Posted in Labor Law & NLRB, Laws & Regulations, Unions, Workplace TrendsWith the New Year, we see many lists offering “predictions” about what will happen in 2013 – one of my favorites is the location of the upcoming nuptials between Brad Pitt and Angelina Jolie (an estate in France or a tent in Namibia appear to be the likely contenders). How about one for labor and… Continue Reading
NLRB Releases Second Facebook Case
Posted in Labor Law & NLRB, Laws & Regulations, Social Media, Unions, Workplace TrendsThe Labor Board has released its long-awaited second “Facebook case.” To nobody’s surprise, the NLRB has largely adopted the ALJ decision that the Facebook postings in question constitute protected concerted activity under Section 7. In Hispanics United of Buffalo, an employee threatened to report several of her co-workers to management who she felt did not provide… Continue Reading
At-Will Disclaimers and the National Labor Relations Act
Posted in Employment Discrimination, HR Compliance, Labor Law & NLRB, Laws & Regulations, Workplace TrendsAlmost every nonunion company’s employee handbook has the standard clause: employment is at-will. This indisputably is a permissible term of employment, right? The answer to that question depends on how the policy is phrased. According to recent pronouncements from the NLRB, if a “reasonable employee” could read such a policy as making unionization futile, then… Continue Reading
Latest NLRB Decision on Employer Overbroad Confidentiality Policies
Posted in HR Compliance, Labor Law & NLRB, Laws & Regulations, UnionsDo you think it could possibly violate any law to require at-will non-union employees to sign a confidentiality agreement prohibiting disclosure outside the company of information relating to customers, marketing procedures, costs, prices, business plans, computer and software systems, and “personnel information and documents?” If you answered “of course not!” you would be WRONG under… Continue Reading
NLRB Election Rules Still Invalid
Posted in Labor Law & NLRB, Litigation, UnionsAs we reported in May, the United States District Court for the District of Columbia invalidated the NLRB’s proposed “quickie” election rules, on the grounds that the Board lacked a proper quorum on the day of voting. Member Brian Hayes never formally voted on the rules, though he did indicate in the days before the… Continue Reading
NLRB General Counsel New Social Media Report
Posted in Labor Law & NLRB, Laws & Regulations, Litigation, UnionsThe NLRB General Counsel’s office has released its third report on recent social media cases. The GC reviewed social media and confidentiality policies from several companies and found most policies unlawful. In particular, the GC found the following portions of various social media and confidentiality policies unlawful: “Don’t release confidential guest, team member or company… Continue Reading
NLRB Board Member Flynn Resigns
Posted in Labor Law & NLRB, UnionsWhile the rest of America was busy celebrating the long Memorial Day weekend, internal turmoil at the NLRB finally resulted in action when, on May 26, NLRB Board Member Terrence Flynn submitted his resignation. The resignation is effective July 24, but Flynn stopped conducting all agency business immediately. As we discussed on this blog in… Continue Reading
Secret Recording of Meeting Was Protected Concerted Activity
Posted in Labor Law & NLRB, LitigationThe U.S. Court of Appeals in D.C., in Stephens Media, LLC v. NLRB, just upheld a finding by the NLRB that an employer in Hawaii unlawfully punished protected concerted activity when it interrogated four employees and discharged one of them for surreptitiously recording a meeting with a management representative. The employer had no policy against… Continue Reading
NLRB Election Rules Invalid — For Now
Posted in Labor Law & NLRB, Litigation, Unions“According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically.” So begins United States District Court Judge James Boasberg’s opinion… Continue Reading
NLRB Employee Handbook Case Part Two
Posted in Labor Law & NLRB, UnionsIn Part One of my analysis of the recent case brought by the NLRB challenging various aspects of the Rio Hotel & Casino’s employee handbook, I reviewed two parts of the handbook that the Board found objectionable: a prohibition on off-duty clothing and an off-duty access rule. The ALJ ruled in favor of the Company… Continue Reading
NLRB Employee Handbook Case
Posted in Labor Law & NLRB, UnionsA little-noticed ALJ case recently coming out of Las Vegas gives employers excellent insight into how the NLRB General Counsel views certain employee handbook provisions. The case involved the famous Rio Hotel and Casino – a venue which boasts a couple thousand hotel rooms and, in my opinion, the best buffet in Vegas. Last July,… Continue Reading
New NLRB Election Rules Take Effect Today
Posted in Labor Law & NLRB, Laws & Regulations, UnionsToday marks a new day for the National Labor Relations Board, as significant changes to its election procedures officially take effect. All NLRB election petitions filed starting today will be subject to these new rules. The most significant changes concern the role of a pre-election hearing. Up until now, a pre-election hearing was an opportunity… Continue Reading
NLRB Poster D.C. Circuit Injunction
Posted in Labor Law & NLRB, Laws & Regulations, Litigation, UnionsBREAKING NEWS! In a follow-up to our blog posting from this morning, the United States Court of Appeals for the District of Columbia just issued an injunction preventing the NLRB from enforcing its poster rule while the Court considers an appeal of the prior D.C. District Court case which upheld a portion of the rule. … Continue Reading
NLRB Poster Update
Posted in Labor Law & NLRB, Laws & Regulations, Litigation, UnionsAs we blogged over the weekend, a federal District Court in South Carolina on Friday struck down the NLRB poster rule, on the grounds that the NLRB exceeded its authority in promulgating the rule. This ruling directly conflicts with an earlier decision from a federal District Court in Washington, DC which upheld the NLRB’s authority… Continue Reading
NLRB Poster Struck Down
Posted in Labor Law & NLRB, Litigation, UnionsBREAKING NEWS! The United States District Court for the District of South Carolina just struck down the NLRB poster requirement set to go into effect on April 30, 2012. Contrary to the District Court for the District of Columbia ruling, the federal court in South Carolina found that the NLRB exceeded its authority in promulgating… Continue Reading
NLRB Board Appointments and 10 (j) Delegation Upheld
Posted in Labor Law & NLRB, Litigation, UnionsA few weeks ago, I wrote about an important 10 (j) case in federal court in New York where the Defendant was challenging (1) the constitutionality of Obama’s recess appointments; (2) the Labor Board’s ability to delegate 10 (j) authority to the General Counsel’s office; and (3) if such a delegation survives once the Board’s membership falls below a… Continue Reading
Inspector General’s Report on NLRB Member Flynn
Posted in Labor Law & NLRB, UnionsThe big news in labor law the past few days has been the NLRB Inspector General report concerning Board member and Republican appointee, Terence Flynn. Corporate Counsel has an excellent story on the report. As of Monday, Flynn was adamant that he would not resign. It appears that Flynn’s status might come down to a funny wrinkle in… Continue Reading
NLRB Information Campaign on Protected Concerted Activity
Posted in Labor Law & NLRB, UnionsThe Wall Street Journal has an excellent story about a new “information campaign” planned by the NLRB that will impact non-union employers. The goal is to inform all employees about their legal right to take part in “protected concerted activities.” Indeed, the right to engage in “protected concerted activity” is one aspect of the National… Continue Reading
Union Handbilling Allowed
Posted in Labor Law & NLRB, Litigation, UnionsThe United States Court of Appeals for the Seventh Circuit recently handed down a decision on union handbilling that employers should note (Roundy’s Inc. v. NLRB, Nos. 10-3921 & 11-1292). The case involved a grocery store chain in Wisconin, Pick ‘N Save. The chain was using non-union contractors to remodel some of its locations. This… Continue Reading
Specialty Healthcare Watch: Northrop Grumman Shipbuilding (Part II)
Posted in Labor Law & NLRB, Speciaity Healthcare Watch, UnionsEditors Note: This is the latest installment in the Labor & Employment Report’s regular feature “Specialty Healthcare Watch.” In Speciality Healthcare, the NLRB redefined the test for what constitutes an appropriate bargaining unit. The Labor & Employment Report is analyzing post-Speciality Healthcare cases to give employers insights on how to apply that holding. For more… Continue Reading