By Nelson Cary on Posted in NLRB,RulemakingThe joint employer issue at the NLRB continues to be a hotbed of activity. We last updated our readers on this issue in mid-December. Here’s what has happened since then: Developments in the Courts. At the end of the year, the U.S. Court of Appeals for the D.C. Circuit ruled in the appeal of the… Continue Reading
By Nelson Cary and Lauren Sanders on Posted in NLRB,RulemakingThe NLRB’s rulemaking on the joint employer issue has again been delayed. Earlier this month, the AFL-CIO filed a memorandum (pdf) alleging that business groups secretly had “extensive input” on the proposed rule. The AFL-CIO requested a 30-day extension of the time to submit comments on the proposed rule. On Monday, the NLRB announced that… Continue Reading
By Nelson Cary and Greg Scheiderer on Posted in Union OrganizingDevelopments at the Boeing plant in Charleston, South Carolina, prove that the specter of micro bargaining units was not put to rest by the NLRB’s return to the traditional community of interest analysis this past December. Late last week, a group of 178 employees out of a workforce of approximately 7,000 at Boeing’s plant voted… Continue Reading
By Allen Kinzer on Posted in Employee Discipline,NLRBSome precedent at the NLRB may be changing, but some is not. Relying on a 40-year old case, the NLRB recently ruled that an Ohio manufacturer violated the NLRA when it suspended and discharged a non-union employee for complaining about working conditions. Meyer Tool, Inc., 366 N.L.R.B. No. 32 (March 9, 2018). The employer argued… Continue Reading
By Nelson Cary and Lauren Sanders on Posted in Elections,NLRBThe 2014 Election Rule is here to stay— at least for the next two months. On Friday, the NLRB extended the time for filing responses to the Request for Information until March 19, 2018. As we previously reported, the 2014 Election Rule, also known as the “ambush” or “quickie” election rule, speeds up the representation… Continue Reading
By Nelson Cary and Lauren Sanders on Posted in NLRBThe NLRB may soon have a full complement of members, with Republicans back in the majority. On January 12, 2018, President Trump nominated management-side attorney John Ring (R) to fill the single vacancy on the NLRB that opened when former Chairman Philip Miscimarra (R) stepped down last year. Ring is currently the co-leader of a… Continue Reading
By Nelson Cary and Lauren Sanders on Posted in NLRBJust a few months after the NLRB became majority Republican, there are early signs that the agency may be taking a new direction in 2018. Peter Robb, the NLRB’s new General Counsel, sent a memorandum to all Regional Directors, Officers-in-Charge, and Resident Officers in early December. In his memorandum, which followed a practice that prior General… Continue Reading
By Nelson Cary and Jesse Meade on Posted in NLRBThe Senate confirmed the appointment of Peter Robb as NLRB General Counsel on November 8, 2017, by a final vote of 49-46. Robb will take over as the chief enforcer for the NLRB, and represents a dramatic departure from his predecessor Richard Griffin, who pursued a number of cases that changed NLRB law in ways… Continue Reading
By Nelson Cary and Jesse Meade on Posted in NLRBThe Senate, by a vote of 49-47, confirmed the appointment of William Emanuel to the NLRB on September 25, 2017, giving the NLRB its first Republican majority since 2007. Emanuel, along with Marvin Kaplan, join Chairman Miscimarra to form a NLRB majority that is likely to begin reversing the direction the NLRB took during the Obama… Continue Reading
By Allen Kinzer on Posted in Elections,Union OrganizingBy nearly a 2-to-1 margin, Nissan’s production and maintenance employees at its Canton, Mississippi facility rejected UAW representation. The count was 2,244 “no” votes to 1,307 “yes” votes. The UAW had invested heavily for over six years in trying to convince Nissan’s Mississippi workers to vote “yes.” Through demonstrations and rallies featuring actor Danny Glover,… Continue Reading
By Allen Kinzer on Posted in Elections,Union OrganizingOn July 10, the UAW filed a NLRB Petition for Election to represent all of the production and maintenance workers at Nissan’s Canton, Mississippi manufacturing facility. The facility has over 6,500 workers. The petition could not only include the production and maintenance workers employed directly by Nissan, but also include contract workers employed by Kelly… Continue Reading
By Nelson Cary on Posted in Union InsigniaTwo of my colleagues, David Campbell and Don Slezak, have authored an excellent piece on a recent NLRB decision that is a must read for employers with dress code policies. The case grew out of the “Fight for $15” campaign, which seeks to increase the minimum wage to $15/hour. The decision involved a restaurant chain that… Continue Reading
By Nelson Cary on Posted in CourtsFormer NLRB Acting General Counsel Lafe Solomon was not permitted to serve in that capacity once former President Obama nominated him for the position of General Counsel of the NLRB. So held the U.S. Supreme Court yesterday in a 6-2 decision. The decision is just the most recent in a line of cases on the NLRB’s… Continue Reading
By Nelson Cary on Posted in Department of Labor,NLRB,Union OrganizingWhat a last couple of weeks on the labor law front. Here is a quick round up of significant developments, just to make sure you are caught up: Puzder Out, Acosta Up Next President Trump’s first DOL secretary nominee, Andrew Puzder, withdrew himself from contention earlier this week. Press reports suggest that there was insufficient support… Continue Reading
By Nelson Cary on Posted in CourtsLast week, I provided an overview of Judge Gorsuch’s decisions involving the NLRB. This week, I take a deeper dive into the opinions, discussing a few of the holdings below. As noted in my last post, Judge Gorsuch’s most recent opinion is actually a dissent. It offers the most interesting insights about his view of… Continue Reading
By Nelson Cary on Posted in CourtsEarlier this week, as I’m sure everyone has now heard, President Trump announced his pick for the U.S. Supreme Court. For those of you who missed it, President Trump nominated Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit. Curious about his decisions in cases involving the NLRB, I set… Continue Reading
By Nelson Cary on Posted in NLRBEarlier this week, newly inaugurated President, Donald Trump, named Philip A. Miscimarra the acting chairman of the NLRB. Miscimarra, the sole Republican currently on the NLRB, is serving in a term that expires in less than 12 months. Two of the five NLRB positions are currently vacant. The details on the appointment process have not… Continue Reading
By Nelson Cary on Posted in NLRB,RulemakingWith the dust still settling from our national election this week, I’ve been digesting what it means for the NLRB. So, here are some initial thoughts. Two of the five NLRB positions are vacant now. But, the details on the appointment process are messy. The NLRB members President Obama selected have staggered terms that will… Continue Reading
By Nelson Cary on Posted in Elections,Union OrganizingThe NLRB’s so-called “ambush” election rule turned one year old last month. To commemorate the birthday, I decided to turn to Susan Connelly, the Executive Director at PTI Labor Research, and prior contributor to this blog, to ask what she is seeing in the election data. Nelson: Looking back at the first year of the… Continue Reading
By Nelson Cary on Posted in CourtsSo, by now, I’m sure everyone has heard that President Obama announced his pick for the U.S. Supreme Court last week. In case you missed that, he selected Chief Judge Merrick Garland, from the D.C. Circuit Court of Appeals. As a result, many have been writing about how Judge Garland has ruled in any given… Continue Reading
By Allen Kinzer and Nelson Cary on Posted in Employee HandbooksThe U.S. Chamber of Commerce has released a biting analysis of the NLRB’s recent decisions that attack employers’ basic handbook policies. The lengthy report summarizes a number of decisions that find many basic handbook policies on courtesy, respect, and confidentiality in the workplace to be unlawful under the NLRA. Many of these cases have been covered… Continue Reading
By Nelson Cary and George Stevens on Posted in NLRB,Union OrganizingEarlier today, the long-running saga of whether NCAA Division I football players are employees under the NLRA came to an end — at least temporarily. The NLRB unanimously declined to exercise jurisdiction over Northwestern University’s scholarship football players and dismissed the union election petition. In January 2014, Northwestern University’s scholarship football players filed a petition… Continue Reading
By Nelson Cary on Posted in Elections,Rulemaking,Union OrganizingAnother federal court, this one in Washington, D.C., has come down on the side of the NLRB’s new election rule. Deciding a case the U.S. Chamber of Commerce and several other employer organizations filed, and to which one employer was added, the court found that the NLRB did not act “arbitrarily or capriciously” in issuing… Continue Reading
By Nelson Cary on Posted in Courts,UnionsThe First Amendment to the United States Constitution protects the right of the people “to petition the Government for a redress of grievances.” Courts have concluded that when a person petitions the Government in good faith, the First Amendment prohibits any sanction for that conduct. Applied in the labor law context, therefore, employer conduct that… Continue Reading
