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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...

The NLRB’S Designs to Re-Define Joint Employer

by Todd L. Sarver Are you a franchisor? Do you have contractors? Do you use a staffing agency? Do you outsource functions (food service, cleaning, security, etc.)? Do you have affiliate corporate entities you established to operate separately? Do you have a vertically integrated operation? If you...

Senate Committee to Hold Confirmation Hearing on McFerran NLRB Nomination

The U.S. Senate’s Health, Employment, Labor and Pensions Committee (HELP) has set a full committee hearing for November 20, 2014, on the nomination of Lauren McFerran to be a Member of the National Labor Relations Board. She was just nominated by the President on November 12, 2014. Assuming...

Democrat McFerran Approved by Senate HELP Committee to Be NLRB Member

On December 2, 2014, the Senate Health, Education, Labor, and Pensions (HELP) Committee approved the nomination of Democrat Lauren McFerran to serve as a Member of the NLRB. Her nomination now goes to the Senate floor for consideration. It would appear she will be confirmed during the lame duck session...

NLRB Hits Employers Facing Union Organizing With a One-Two Punch

On December 12, 2014, the National Labor Relations Board ("NLRB") dealt employers facing union organizing a blow by adopting the controversial “quickie election” rule. The rule amends the pre-election procedures and processes for conducting a representation election to determine...

Business Groups Challenge Constitutionality of NLRB “Ambush” Election Rule

by Jami K. Suver On December 15, 2014, slightly less than three years after the NLRB’s first thwarted attempt, a final rule (the “2014 Final Rule”) reducing the time between the filing of an election petition and holding workplace union representation elections was published in the...

NLRB OGC Memo: Updated Procedures in Addressing Immigration Status Issues that Arise During Unfair Labor Practice Proceedings

"The NLRA protects all employees covered by the Act regardless of immigration status; however, immigration status issues may affect remedies and present certain obstacles for enforcing the Act. This memorandum provides updated procedures that will apply when immigration status issues are raised...

New NLRB Memo on Employee Handbooks

The NLRB General Counsel issued a new memo: Report of the General Counsel Concerning Employer Rules . The overall theme is that employers may violate the National Labor Relations Act (NLRA) by merely maintaining a workplace rule that chills protected activity. Frankly, the memo is a tad on the hypersensitive...

News Excerpts From the April 1, 2015, Bender’s Immigration Bulletin

H-2B Interim Final Rule Expected in April | On March 4, 2015, the federal district court in the Northern District of Florida vacated the Department of Labor's (DOL) 2008 H-2B regulations on the ground that the DOL lacks authority under the INA to issue regulations in the H-2B program. Perez v...

Clear Directives or Clear as Mud?: NLRB’S General Counsel Issues Report on Employer Rules and Policies

by Jana P. Grimm For the last five years, the National Labor Relations Board (NLRB) has been aggressively reviewing and issuing decisions regarding employer rules and policies and whether such rules and policies violate Section 7 of the National Labor Relations Act (Act). What once started as a relatively...

NLRB Orders Reinstatement Of Undocumented Bakery Workers

"The National Labor Relations Board has ordered a New York City bakery to give back jobs to several undocumented immigrants it axed over a decade ago for participating in protected labor activities, provided they can show they are allowed to work in the U.S. A three-judge panel said conditional...

NLRB Issues Official Guidance on “Ambush Election” Rules

One week from today, the NLRB’s “ambush election” rules take effect. Yesterday, the Board published its official guidance discussing how it will process representation cases going forward. According to the Board, these new rules do not “establish new timeframes for conducting...

The NLRB’s Changes to Representation Case Procedures

by Eric Raphan and Brian DeShannon* Beginning on April 14, 2015, the National Labor Relations Board’s (“NLRB” or the “Board”) new representation case procedural rules will be applied to all representation petitions filed thereafter. While the NLRB insists that the new...

NLRB Signs Off on Employer Social Media Policy as Legal

It’s not news that employer social media policies are on the NLRB’s radar. What is newsworthy, though, is when the NLRB considers a social media policy and concludes that it does not unlawfully infringe on employees’ rights to engage in protected concerted activity under the National...

NLRB General Counsel on Joint Employers

The NLRB Office of the General Counsel (OGC) issued an advice memorandum in Nutritionality, Inc. d/b/a Freshii . The OGC addressed whether the Freshii national chain was a joint employer with Nutritionality, Inc., which operated a single Fresii in Chicago. I'm something of a fast food connoisseur...

NLRB Offers Some Good News for Franchisors, or Does It?

We are in the middle of class war in America, and your local fast-food restaurant is ground zero. Workers are fighting for higher wages and better working conditions. And, they are getting some help from the federal government. Last summer, the NLRB Office of General Counsel authorized complaints...

No More Busch in the Gardens: The NLRB Discards 37 Years of Precedent Protecting Witness Statements

by Mark C. Dean Recently, the National Labor Relations Board (“NLRB”) officially overruled longstanding protections against disclosure of witness statements taken by employers during an internal workplace investigation. Since 1978, the Board has maintained that the general duty on an employer...

NLRB Announces "Refined" Joint Employer Standard

It's not every day that you see #NLRB as one of the top trending topics on Twitter; but, yesterday was just such a day. Why? The NLRB issued a press release , and a corresponding opinion in Browning-Ferris Indus. , announcing a "refined" standard for analyzing joint employment [subscribers...

The Joint Employer Doctrine Strikes Again

by Michael Marr In a post last month ( Serving Two Masters- Fourth Circuit Recognizes the Joint Employment Doctrine ), we discussed the July 15th Fourth Circuit opinion of Butler v. Drive Auto. Indus. of Am , which made the joint employment doctrine the law of the Fourth Circuit [subscribers can access...

Lareau on BFI Newby Island Recyclery: Joint Employer Status

On August 27, 2015, the National Labor Relations Board ("Board"), in its decision in BFI Newby Island Recyclery , abandoned 30 years of precedent related to the appropriate standard for determining joint employer status under the National Labor Relations Act ("Act") [subscribers can...