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NLRB is likely to operate with just four members for the time being.

July 31, 2018

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A fully constituted NLRB is comprised of five members. Decisions are typically issued by three-member NLRB panels. Three is also the minimum number of members the NLRB must have to issue a decision. However, the NLRB will only overrule existing precedent where it has at least three members ruling in favor of a change. By custom, the NLRB will only overrule existing precedent when the NLRB has at least four members and at least three…

Management & Labor Report

GENERAL COUNSEL ANNOUNCES HIS VIEWS ON 10(J) INJUNCTIVE RELIEF

By Fox Rothschild LLP

June 25, 2018

In General Counsel Memorandum 18-05, General Counsel Peter Robb expressed his views on the use of temporary injunctions under Section 10(j) of the Act. Section 10(j) gives the NLRB the discretion upon issuance of a complaint to seek temporary injunctions against employers and unions (typically employers) in federal district courts to stop alleged unfair labor practices while the case is being litigated before the NLRB. The Region’s argument is that injunctive relief is allegedly…

Management & Labor Report

NLRB Might Revisit Blocking Charge Policy

By Fox Rothschild LLP

May 30, 2018

As is often the case with the NLRB, footnotes include critical information and signal where the NLRB is heading. And, that is certainly the case with the NLRB’s blocking charge policy. On May 9, 2018, in a footnote to an NLRB Order, Board Members Marvin Kaplan and William Emanuel signaled their intent to reconsider the NLRB’s blocking charge policy. The blocking charge policy is one of the NLRB’s longest standing rules. In a nutshell, the…

Management & Labor Report

Despite Hy-Brand, Browning Ferris May Still Be Overruled Soon

By Fox Rothschild LLP

April 26, 2018

As my colleague Andrew MacDonald blogged on February 27 (here), the Board overturned its test for joint employer liability for the second time in approximately two months when it vacated Hy-Brand Contractors Ltd., 365 NLRB No. 156 (2017), which overruled the Obama Board’s decision in Browning Ferris Industries, 362 NLRB No. 186 (2015). Thus, Browning Ferris is currently law of the land, but perhaps not for long. Prior to Browning Ferris, the putative joint…

Management & Labor Report

Trump NLRB Gives Employers a Little More Leeway in Maintaining Work Rules

By Fox Rothschild LLP

December 29, 2017

The National Labor Relations Board has ruled that an employer does not necessarily violate the National Labor Relations Act by maintaining a facially neutral work rule, policy or handbook provision that could be reasonably construed to interfere with union or other protected concerted activity protected under Section 7. The 3-2 decision in The Boeing Company, handed down on Dec. 14, overrules Lutheran Heritage Village-Livonia, in which the NLRB declined to consider the employer’s justification for…

Management & Labor Report

Quickie Election Rules Have Not Dramatically Helped Unions Organize

By Fox Rothschild LLP

November 29, 2017

Quickie Election Rules Have Not Dramatically Helped Unions Organize The NLRB recently released its report on representation elections for fiscal year 2017. The results are consistent with fiscal years 2015 and 2016 — though unexpected given the 2015 Quickie Election rules dramatically limited the time employers had to ensure its employees could make an informed decision prior to voting in the election. The Quickie Election Rules drastically curtailed the time employers had to determine who…

Management & Labor Report

Predicting the Supreme Court’s Decision on Class Waivers in Employment Arbitration Agreements Is Somewhat More Accurate than Reading Tea Leaves

By Fox Rothschild LLP

October 17, 2017

Earlier this month, the U.S. Supreme Court heard oral arguments on whether employment agreements that require an employee to resolve a dispute with her employer through individual arbitration and waive the option of having the dispute handled collectively is unlawful. In D. R. Horton, 357 NLRB No. 184 (2012), the NLRB first held that arbitration agreements requiring employees to forfeit their right to proceed collectively violate Section 8(a)(1) of the Act. The waiver of the…

Management & Labor Report

Workplace Civility Rules Aren’t Dead — Just on a Lifeline

By Fox Rothschild LLP

August 30, 2017

The National Labor Relations Board (“NLRB” or “Board”) has taken a jaundiced view of employer policies that require respect and civility in the workplace over the past several years. The Board has found such rules generally interfere with employees Section 7 rights and thereby violate Section 8(a)(1) of the National Labor Relations Act (“the Act”). Fortunately, the Fifth Circuit Court of Appeals (“the Court”) takes a more holistic view of civility rules. In T-Mobile USA,…

Management & Labor Report

NLRB Unlikely To Overrule Any Controversial Obama-Era Decisions Until 2018

By Fox Rothschild LLP

August 30, 2017

I hate to sound unduly pessimistic, but any hopes you had of relief from unduly labor-friendly National Labor Relations Board (“the Board”) precedent this year will likely not happen because President Trump will likely not have a business-friendly majority on the five member Board until sometime early next year and a General Counsel willing to bring appropriate cases to overrule more controversial Obama Board precedent. After months of inaction, the President nominated Marvin Kaplan and…

California Employment Law

Finally Some Good News From the Labor Board

By Fox Rothschild LLP

June 27, 2015

At least some good has come out of the Supreme Court’s finding that President Obama’s recess appointments were invalid in Noel Canning. By virtue of the Supreme Court’s decision, the Labor Board reconsidered its decision in Fresenius USA (pdf) and concluded that an employer acted lawfully when it discharged a union supporter for lying during an internal investigation into who scribbled vulgar, offensive, and arguably threatening statements on union newsletters in the employer’s break…

Fox Rothschild LLP

NLRB is likely to operate with just four members for the time being.

GENERAL COUNSEL ANNOUNCES HIS VIEWS ON 10(J) INJUNCTIVE RELIEF

NLRB Might Revisit Blocking Charge Policy

Despite Hy-Brand, Browning Ferris May Still Be Overruled Soon

Trump NLRB Gives Employers a Little More Leeway in Maintaining Work Rules

Quickie Election Rules Have Not Dramatically Helped Unions Organize

Predicting the Supreme Court’s Decision on Class Waivers in Employment Arbitration Agreements Is Somewhat More Accurate than Reading Tea Leaves

Workplace Civility Rules Aren’t Dead — Just on a Lifeline

NLRB Unlikely To Overrule Any Controversial Obama-Era Decisions Until 2018

Finally Some Good News From the Labor Board

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