On November 8, 2017, Peter B. Robb was sworn in as the General Counsel (GC) of the NLRB for a four year term. Robb succeeds Richard Griffin, who has been the GC since November 2013. Robb wasted no time in taking initial steps to undo many of the NLRB’s more controversial recent decisions. On December 1, 2017, Robb issued Memorandum 18-02 directing the NLRB’s regional offices on which types of charges should be submitted to his Division of Advice and rescinding policy memoranda issued by the prior GCs.
Continue Reading New Labor Board GC Signals Overturning Obama-Era Rulings, But Anticipated Vacancies and Recusals Create Uncertainty

Senate Republicans recently confirmed William Emanuel, the second Trump nominee to the five-member National Labor Relations Board (the “Board”), giving the Board a Republican majority for the first time since 2007. Mr. Emanuel’s confirmation follows the September 25, 2017 appointment of Peter Robb, a management-side labor and employment lawyer, as General Counsel of the Board. Each of President Trump’s recent appointments are expected to advance the president’s pro-business and pro-employer policies. In particular, Mr. Robb’s replacement of the current General Counsel, Richard Griffin, is a crucial step towards upending the Board’s recent anti-employer rulings.
Continue Reading Labor Relations Update: New NLRB General Counsel Nominee Poised to Undo Obama-Era Precedents

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 15, 2017, the Seventh Circuit issued its ruling in Vega v. New Forest Home Cemetery, LLC, finding that an employee was not barred from bringing a Fair Labor Standards Act (“FLSA”) claim in a judicial forum, despite his failure to exhaust the grievance procedure in the applicable collective bargaining agreement (“CBA”).
Continue Reading 7th Circuit Issues Ruling That Waiver of Statutory Rights under FLSA in Collective Bargaining Agreement Must Be Clear and Unmistakable

On November 16, 2016, a federal district judge in Texas barred the Department of Labor (“DOL”) from enforcing its new so-called “Persuader Rule.”  The rule, which would have imposed broad disclosure requirements on employers responding to union-organizing campaigns, has been mired in controversy since it was proposed in 2011.  In April 2016, Sheppard Mullin wrote about the changes the final rule would have made; in June, we covered a proposed carve-out for legacy agreements between employers and third-party advisors.
Continue Reading Unpersuasive: Federal Judge Invalidates DOL’s New Persuader Rule

On March 24, 2016, the U.S. Department of Labor’s (“USDOL”) Office of Labor-Management Standards (“OLMS”) published its highly controversial “persuader” regulation, which requires employers and labor relations consultants, including legal counsel, to publicly disclose relationships that have traditionally been permitted to remain confidential under the Labor-Management Reporting and Disclosure Act (“LMRDA”).  Although the new persuader regulations took effect on April 25, 2016, the new rule will not apply to agreements entered into before July 1, 2016.  This presents an invaluable opportunity for employers and their labor consultants to be “grandfathered” out of much of the required reporting under the new regulations.
Continue Reading Legacy and Grandfathered Agreements are Not Subject to Disclosure Requirements Under the Department of Labor’s New “Persuader” Regulations and Interpretation of the “Advice” Exemption

The U.S. Department of Labor’s Office of Labor-Management Standards (“OLMS”) recently issued its long-debated “persuader” regulations which, as of July 1, 2016, will require employers and their labor relations consultants, including legal counsel, to publicly disclose relationships which had long been permitted to remain confidential under the Labor-Management Reporting and Disclosure Act (“LMRDA”).
Continue Reading Department of Labor’s Long-Debated “Persuader” Regulations Expand the Scope of the Consulting Relationships that Must be Reported Under the Labor-Management Reporting and Disclosure Act

As a reminder that non-union employees are also protected by the National Labor Relations Act (NLRA), the Seventh Circuit Court of Appeals in Chicago recently upheld a National Labor Relations Board (NLRB) decision holding that Staffing Network Holdings, LLC (“Staffing Network”) violated the NLRA by twice threatening non-union employees with discharge for engaging in protected, concerted activity, and for actually discharging an employee Griselda Barrera for the same. See Staffing Network Holdings, LLC v. NLRB.
Continue Reading Non-Union Employee’s “Bad Attitude” Protected by the NLRA

In late April, the National Labor Relations Board (“NLRB” or the “Board”) General Counsel’s office issued an Advice Memorandum (“Advice Memo”) (No. 177-1650-0100, available here) addressing whether a franchisor (Freshii Development, LLC) was a joint employer with one of its franchisees (Nutritionality, Inc.).  The General Counsel’s office determined that the franchisor was not a joint employer with its franchisee, using both the current Board standard for joint employer analysis and a recently-proposed, even-more-inclusive standard.  This decision has given franchisors hope that the presumption of joint employment between franchisors and franchisees that has been circulating in a number of recent court and Board decisions is finally starting to weaken.  
Continue Reading NLRB Weighs-In on Franchise Joint Employers

In December 2014, the National Labor Relations Board (“NLRB”) announced new rules governing “Representation—Case Procedures.”  The new rules—set to take effect in just under a month, on April 14, 2015—have been commonly referred to as “quickie” or “ambush” election rules, as they will significantly increase the speed at which the union election process moves.  The Republican-led Congress has been working to block the new rules from taking effect, but the expectation is that even if such a bill passes both the House and the Senate, it is likely to be met with a Presidential veto.  Legal challenges to the new rules are also pending in federal courts, including one lawsuit by the U.S. Chamber of Commerce and other trade organizations in the U.S. District Court for Washington D.C. (Case No. 1:15-cv-9), and another by a group of trade associations in U.S. District Court for the Western District of Texas (Case No. 1:15-cv-26).  As of this writing, however, no court has acted to stop or delay implementation of the rules, and although motions for summary judgment are pending in both cases, no hearings have been set and it is not clear when either Court will rule on the respective motions.  At this point, employers should operate under the assumption that the new rules will indeed take effect on April 14, 2015.
Continue Reading NLRB “Quickie Election” Rule Accelerates the Union Organizing Process