Griffin Confirmed by the Senate to be NLRB General Counsel

After a successful cloture vote on October 29, 2013, the Senate conducted a roll call vote on the nomination of Richard Griffin, Jr. to be General Counsel at the National Labor Relations Board. He was confirmed by a vote of 55 to 44. Once sworn in, Griffin will take over from Lafe Solomon who has been...

Court Rejects NLRB’s D.H. Horton Decision Invalidating Limits on Class Arbitration

The U.S. Court of Appeals for the Fifth Circuit in a split decison in D.H. Horton v. NLRB , No. 12-60031, decided December 3, 2013, rejected the NLRB’s ruling that an agreement between employees and Horton requiring arbitration and prohibiting class or collective actions in arbitration was a violation...

Tread Lightly If Banning Workplace Gossip, Says NLRB Judge

I recently came across a blog post that answered the question of how to deal with workplace gossip . One solution you might want to avoid is a policy banning it outright, at least according to the recent opinion of an NLRB Administrative Law Judge in Laurus Technical Institute [pdf] . Laurus distributed...

U.S. Supreme Court Hears Oral Arguments in NLRB Quorum Appeal

WASHINGTON, D.C. — The U.S. president has the power to fill vacancies on the National Labor Relations Board during both inter-session and intra-session recesses, the U.S. solicitor general told the U.S. Supreme Court this morning during arguments in a closely watched appeal ( National Labor Relations...

NLRB Continues Reliance on D.R. Horton to Attack Employment Arbitration Agreements

As many predicted, the Fifth Circuit’s recent invalidation of the NLRB’s D.R. Horton decision has not caused the NLRB to revise its enforcement position on the subject of class action waivers in employment arbitration agreements. The NLRB basically takes the position that, unless overruled...

Proposed Ambush Election Rules Offer the Best Reason to Be Proactive About Union Avoidance

Last week I suggested that a pro-union NLRB has emboldened labor unions into more aggressive organizing efforts. You need not look any further than yesterday’s news that the NLRB has reissued its ambush-election rules . According to the Wall Street Journal , the median time between the filing...

The Debate About College Athletes as Employees Moves to the National Labor Relations Board

On January 28, 2014, players on the Northwestern University football team filed a petition with the National Labor Relations Board ("NLRB") seeking union representation. The petition is the first of its kind and, if successful, the Northwestern football team would be the first group of college...

Non-Union Employers Should Pay Attention to the NLRB - Here's Why

The National Labor Relations Board has taken the position that many garden-variety employment policies violate the law. These rulings place employers in a “ Catch 22 ”—if employers rescind the policies, they could have trouble defending themselves in unemployment cases, wrongful termination...

The National Labor Relations Board 2013 Year in Review - An Overview of the Board’s Significant Actions

by Bruce Bagley and Adam Santucci Introduction From the looks of it, 2013 was a very rough year for the National Labor Relations Board (Board). Last year , we reported that the Board would face some serious legal battles in 2013. Some of those battles are over, and there are clear winners and losers...

NLRB Looks to Expand Reach With Latest Enforcement Priorities

Late last month, the new NLRB General Counsel, Richard Griffin, published a memo ( GC 14-01 ) outlining the matters that the Regions must submit to the NLRB’s Division of Advice for guidance on how to proceed. The memo is of key importance to employers, because it signals those matters that will...

Student Athletes Could…Go…All…The…Way…to the Bank

On Wednesday, the Regional Director for the Chicago Region of the National Labor Relations Board ("NLRB") ruled that football players receiving scholarships from Northwestern University are "employees" for the purpose of the National Labor Relations Act ("NLRA"). This ruling...

It’s Okay to “Gossip” in the Workplace, as Long It’s Not “Negative,” Says the NLRB

Earlier this year , I noted that the NLRB is starting to examine workplace gossip policies. Last week, the NLRB reminded us of the importance of avoiding broad-based prohibitions on workplace communications. In Hills & Dales General Hospital [pdf] [ an enhanced version of this decision is available...

NLRB Judge Gives Booby Prize to Hooters' Workplace Policies

In Hooters of Ontario Mills [pdf] , an NLRB Administrative Law Judge found that a California franchisee of Hooters unlawfully fired a waitress for complaining about a bikini contest that she perceived as fixed [ an enhanced version of this opinion is available to lexis.com subscribers ]. In the same...

NLRB Judge Holds That Even Individual Acts Can Constituted Protected Concerted Activity

Webster’s Dictionary defines “concerted” as, “done in a planned and deliberate way usually by several or many people; mutually contrived or agreed on.” Given this definition, I was surprised when I read a decision by an NLRB Administrative Law Judge, which held that a lone...

SCOTUS on NLRB Recess Appointments

At long last, the Supreme Court's opinion in NLRB v. Noel Canning is here ! It's a long opinion and will take some time to analyze, but here's my first take: The Court is unanimous in concluding that Obama's NLRB recess appointments were unconstitutional - he lacked the authority under...

U.S. High Court Nixes President’s Recess Labor Board Appointments

WASHINGTON, D.C. — (Mealey’s) The U.S. president may fill any existing vacancies of “officers of the United States,” whether occurring before or during a recess, under the “recess appointments clause” of the Constitution, Article II, Section 2, Clause 3, during any...

Supreme Court Holds NLRB Recess Appointments Invalid. Chaos Ensues?

Yesterday morning, in NLRB v. Noel Canning , the U.S. Supreme Court held that President Obama exceeded his authority in making recess appointment to fill vacancies on the NLRB in 2012. A copy of the opinion is here: http://www.supremecourt.gov/opinions/13pdf/12-1281_bodg.pdf [lexis.com subscribers...

Noel Canning: Now What?

Noel Canning has been decided; the Supreme Court invalidated President Obama's NLRB recess appointments. Approximately 436 decisions were issued over the 18 month period by the "recess" Board. So now what? Chaos? The Board won't function? Probably not. The aftermath of the Supreme Court's...

NLRB Ratifies Actions of Noel Canning-Era Board

Remember when the Supreme Court held that President Obama's "recess appointments" to the NLRB were actually not recess appointments and therefore unconstitutional (i.e. Noel Canning )? Well, now the NLRB has some cleaning up to do. Yesterday, the NLRB issued a press release explaining that...

McNees Wallace & Nurick: "Micro-Units": NLRB Eases The Way For Union Organizing

by Bruce D. Bagley Even the most casual of observers would have to be wearing blinders not to notice the extraordinary efforts made by the Obama Administration to make it easier for labor unions to organize the non-union workforce. From its promotion of the Employee Free Choice Act (EFCA), which was...

Apparently, “Information Security” Is Now an Unfair Labor Practice

In Fresh & Easy Neighborhood Market (7/31/14) [pdf] [an enhanced version of this opinion is available to lexis.com subscribers] , the NLRB examined the following “Confidentiality and Information Security” policy: We have an important duty to our customers and our employees to respect...

Facebook Firing Causes Unfair Labor Practice Double Play For NLRB

In Triple Play Sports Bar & Grille [pdf] , the NLRB unanimously concluded that an employer unlawfully fired two employees for their off-duty Facebooking, and less-than unanimously concluded that the same employer’s social media policy was unlawfully restrictive [an enhanced version of this...

Loyalty: Extinct Under the NLRA?

Section 8.01 of the Restatement Third of Employment Law states that employees owe a duty of loyalty to their employers in matters related to the employment relationship. Employers realize that under the Obama Board, the inclusion of that statement would violate the act because it is overly broad and...

Senate Committee Holds Hearing on Nomination of Sharon Block to be a Member of the NLRB

On September 9, 2014, the U.S. Senate’s Health, Education, Labor and Pensions Committee (HELP) conducted a hearing on the nomination of Sharon Block, a Democrat, to once again be a Member of the National Labor Relations Board. She was nominated to take the place of Nancy Schiffer, a Democrat, who...