In yet another case that impacts both union and non-union employers, the Republican-majority National Labor Relations Board (Board) overruled Obama-era precedent and substantially narrowed what is considered “protected concerted activities” by workers under the National Labor Relations Act (NLRA) in Alstate Maintenance, 367 NLRB No. 68 (January 11, 2019).  In doing so, the Board expressly overturned WorldMark by Wyndham, 356 NLRB 765 (2011), which previously held that a single employee who gripes in a group setting is per se engaged in protected activities under the NLRA without regard to whether the employee is raising a group complaint or seeking to initiate, induce, or prepare for group action.
Continue Reading NLRB Issues Important Decision Regarding What Constitutes “Protected Concerted Activity” in Union and Union-Free Environments Under Federal Labor Law

On July 10, 2018, the National Labor Relations Board (“NLRB” or “Board”) announced the start of a new pilot program to increase participation in its Alternative Dispute Resolution (“ADR”) program. Established in 2005, the Board’s ADR program provides free mediation services to parties who wish to attempt to settle cases that are pending before the Board through the use of a mediator from the Federal Mediation and Conciliation Service or the ADR program director. It is the Board’s position that the ADR program provides parties with greater control over their cases and more “creative, flexible, and customized settlements,” and will save the parties time and money. A settlement is reached in approximately 60% of the cases that participate in the ADR program, and the Board has always approved the settlement reached between the parties. However, regardless of the purported benefits of the ADR program and its “proven track record,” the Board’s Office of the General Counsel stated in its October 15, 2015 Memorandum OM 16-02 that “many cases that are excellent candidates for the program are not brought to the program by counsel for respondent or the General Counsel.”
Continue Reading National Labor Relations Board Seeks To Increase Participation in Alternative Dispute Resolution Program With New Pilot Program

On April 11, 2018, former management lawyer John Ring was confirmed via a 50-48 party-line vote to serve on the five-member National Labor Relations Board (“Board”). Ring will replace Chairman Marvin Kaplan, another member of the Board’s Republican majority appointed by President Trump. Ring’s confirmation sets the stage for undoing many Obama-era rulings that have sparked controversy within the employer community. However, not all Obama-era cases may be fair game.
Continue Reading Labor Board Back to Five Member Composition – What Obama-Era Precedent Is Next on the Chopping Block?

On March 1, 2018, the Deputy Associate General Counsel for the National Labor Relations Board (“NLRB”) asked the D.C. Circuit to revive its review of the Obama-era Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”) joint employer test in light of the Board’s February 27, 2018 decision to vacate Hy-Brand Industrial Contractors, Ltd, 365 NLRB No. 156 (December 14, 2017) (“Hy-Brand”).

In BFI, the Board announced a broad definition of “joint employer,” imposing liability and requiring bargaining in situations where a business possesses only potential and indirect control over the employees in question. BFI became arguably one of the most controversial NLRB rulings from the Obama-era Board, drawing severe scrutiny from the employer community. 

BFI petitioned for review and the NLRB cross-applied for enforcement of its order. The D.C. Circuit Court of Appeals heard oral arguments in March 2017.

In December 2017, before the D.C. Circuit Court of Appeals reached a decision concerning the petition, the now Republican-majority NLRB issued is decision in Hy-Brand, which overturned the Board’s decision in BFI and restored its “direct control” joint employment standard. The NLRB asked the D.C. Circuit to remand the BFI appeal in light of the Hy-Brand decision, which the Court granted.
Continue Reading NLRB Asks D.C. Circuit to Revive Review of Joint Employer Standard Under BFI; Hy-Brand Decision Vacated Following NLRB Ethics Official’s Report

An employer violated employee’s labor rights by offering her a separation agreement that contained unlawful terms ruled a National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”) in Baylor Univ. Med. Ctr., Case No. 16-CA-195335 (Fort Worth, TX, February 12, 2018) (“Baylor”).

This decision is one of the first ALJ rulings to apply the NLRB’s new standard for addressing the legality of facially neutral work rules applicable to union and non-union workplaces under The Boeing Company, 365 NLRB No. 154 (December 14, 2017) (“Boeing”). In Boeing, the new Republican NLRB majority overruled Lutheran Heritage Village-Livonia, 343 NLRB 646 (“Lutheran Heritage”) and announced a new standard it will follow when it evaluates a work rule that, when reasonably interpreted, could potentially interfere with union and other protected concerted activity under Section 7 of the NLRA (Section 7 conduct). Notwithstanding the new, more pro-business Boeing standard, the ALJ found that Baylor violated federal labor law when it offered a terminated employee $10,000 in exchange for signing a severance agreement and general release that included two unlawful provisions. The severance provisions at issue in the case were:
Continue Reading Considering Offering Severance Pay in Exchange for Certain Post-Employment Obligations? Think Again.

On June 12, 2017, the U.S. Department of Labor’s (“DOL”) Office of Labor-Management Standards published a notice of proposed rulemaking regarding its intention to rescind the so-called “persuader rule,” moving the DOL one step closer to withdrawing the controversial regulation introduced by the Obama administration.
Continue Reading Department of Labor Moves To Rescind “Persuader Rule” with Notice of Proposed Rulemaking

On May 23, the NLRB issued Road Sprinkler Fitters Local Union 669, finding that U.A. Local 669 (Union) violated the NLRA when it sought to apply and enforce facially
Continue Reading NLRB Orders Union To Drop Unlawful Grievance, to Dismiss Suit Seeking to Compel Neutral Employers to Arbitrate Grievance and to Pay The Employers’ Legal Fees and Defense Costs

On January 13, 2017, the United States Supreme Court consolidated and granted review of the three following cases involving the legality of arbitration agreements which contain class action waivers:  National Labor Relations Board v. Murphy Oil USA, Inc., from the 5th Circuit, Epic Systems Corp. v. Lewis, from the 7th Circuit, and Ernst & Young LLP v. Morris, from the 9th Circuit.

The NLRB, most notably with its 2012 decision in D.R. Horton, has routinely held that arbitration agreements containing class action waivers violate employees’ rights under the National Labor Relations Act (“NLRA”).  The courts, however, have taken a variety of stances on the issue, and these three cases present the Supreme Court with an opportunity to resolve an issue that has divided the Circuits.


Continue Reading U.S. Supreme Court to Decide Class Action Waiver Divide

Last month, the National Labor Relations Board (the “NLRB” or “the Board”) reversed standing precedent and held that student assistants at private universities, including both graduate and undergraduate teaching and research assistants, qualify as “employees” under the National Labor Relations Act (“NLRA”) and may accordingly join unions to collectively bargain with their employers.  The case, Columbia University, 364 NLRB 90 (2016), offers yet another indication of the strength of the Board’s commitment to maintaining and expanding its presence in a rapidly changing employment environment – and its willingness to overrule itself to do so
Continue Reading NLRB Allows Student Assistants to Unionize, Signals Commitment to Expanding Its Reach

At the end August, the National Labor Relations Board released an advice memorandum, originally drafted in December 2015, concluding that a group of drivers who worked for a drayage company called Pacific 9 Transportation were misclassified as independent contractors and that this misclassification constituted a violation of the National Labor Relations Act. This advice memorandum comes on the heels of a handful of Board decisions, which have reached similar conclusions following the Board’s new and expansive definition of who constitutes a statutory employee under the Act, in FedEx Home Delivery & Teamsters, Local 671. 361 NLRB No. 55 (2014).
Continue Reading NLRB Releases Advice Memorandum Affirming Misclassification Constitutes Unfair Labor Practice