Littler.com Blog RSS Feed

The NLRB's General Counsel Issues Guidance on the New Accelerated Election Rules

Wed, 08 Apr 2015 07:00:00 +0000

On April 14, 2015, the National Labor Relations Board's controversial "quickie election" rule goes into effect. This week, the NLRB's General Counsel, Richard F.

NLRB General Counsel Issues Report Concerning Legality of Common Employer Rules

Thu, 19 Mar 2015 07:00:00 +0000

Frederick C. Miner

Adam-Paul John Tuzzo

NLRB General Counsel Richard Griffin issued yesterday a Report Concerning Employer Rules, in a stated effort to provide guidance on the intersection of employer rules and the National Labor Relations Act (NLRA). The Report includes conclusions about common handbook policies that employers – both nonunion and unionized – may find surprising. Employers should pay careful attention to this new guidance.

Wisconsin Becomes Next "Right to Work" State

Mon, 09 Mar 2015 07:00:00 +0000

On March 6, 2015, Wisconsin’s State Assembly approved legislation that will make Wisconsin the 25th “Right to Work” state in the country. Governor Walker has said he intends to sign 2015 Assembly Bill 61 into law within days. The legislation significantly modifies Chapter 111 of the Wisconsin Statutes by, among other things, prohibiting employers and labor organizations from requiring employees to join, remain a member of, or financially support a labor organization as a condition of employment. Violation of the law will be a Class A misdemeanor. Con

NLRB GC Files First Lawsuit Against Franchisor as Joint Employer

Fri, 19 Dec 2014 08:00:00 +0000

As expected, the National Labor Relations Board's Office of the General Counsel has filed an unfair labor practice complaint against a franchisor and some of its franchisees as joint employers. The Board first announced it might take action against McDonald's USA LLC for alleged actions of its franchisees in July of this year.

The NLRB Issues its Long-Anticipated "Quickie Election" Rule, Making Union Organizing Faster and Easier

Mon, 15 Dec 2014 08:00:00 +0000

On December 15, 2014, the National Labor Relations Board ("NLRB") published its long-anticipated Final Rule on "quickie elections." The Final Rule, which is scheduled to go into effect on April 14, 2015, significantly tilts the NLRB's election procedures in favor of unions.

NLRB Creates Right to Use Corporate E-Mail to Organize and to Complain About Work: Ten Key Implications for Employers

Mon, 15 Dec 2014 08:00:00 +0000

In a precedent-setting ruling, the National Labor Relations Board (NLRB or the "Board") held last week in Purple Communications that Section 7 of the National Labor Relations Act (NLRA) requires employers, except in very limited circumstances, to open their corporate e-mail systems to union organizing by employees and to group discussions among employees about the terms and conditions of employment during non-work time. The 3-to-2 decision overturns the Board's December 2007 decision in Register Guard, holding that because a corporate e-mail system is t

NLRB Issues its "Ambush" Election Rule

Fri, 12 Dec 2014 08:00:00 +0000

As expected, the National Labor Relations Board released its much-anticipated final rule amending union representation and election procedures. The rule is scheduled to be formally published in the Federal Register on December 15, and therefore take effect on April 14, 2015.

Among other changes, the rule will:

NLRB Says Employees Have a Right to use Employer's Email for Section 7 Activity under Certain Circumstances

Thu, 11 Dec 2014 08:00:00 +0000

In a 3-2 split decision along party lines, the National Labor Relations Board has held that employees are presumptively permitted to use their employer's email systems during non-work time for Section 7 activities if employers give employees access to their email systems.

Senate Confirms NLRB Member

Mon, 08 Dec 2014 08:00:00 +0000

In a late afternoon vote, the Senate on Monday confirmed the nomination of Lauren McFerran to serve as member of the National Labor Relations Board. The final tally was 54-40 along party lines. McFerran – who will replace outgoing member Nancy Schiffer – will remain a member of the Board until December 16, 2019. Continue reading this entry at Littler's Workplace Policy Update.

Senate HELP Committee Considers NLRB Nomination

Thu, 20 Nov 2014 08:00:00 +0000

During a relatively sedate hearing to consider the nomination of Lauren McFerran to serve as a member of the National Labor Relations Board, the issue of joint employment and franchisor liability took center stage, at least for the Republican members of the Senate Committee on Health, Education, Labor and Pensions (HELP).

Board Awards Unprecedented Remedies and Signals It Could Go Further

Wed, 19 Nov 2014 08:00:00 +0000

Suellen Oswald

The National Labor Relations Board’s decision in HTH Corporation, 361 NLRB No. 65 (2014), re-affirms the Board’s intent to impose aggressive, unprecedented remedies. In this case, the Board openly signaled that it has not yet reached the outer limits of its authority, and is prepared to go even further.

Board Deems Employees' Lengthy and Detailed Social Media Comments Unprotected

Tue, 18 Nov 2014 08:00:00 +0000

Suellen Oswald

After years of NLRB decisions protecting employees’ profanity-laced tirades and outright threats against management in social media stream-of-consciousness posts, the Board recently said “no.” In Richmond District Neighborhood Center, 361 NLRB No. 74 (2014), the NLRB upheld the ALJ’s decision that two employees’ Facebook plan for insubordination veered into the land of “unprotected” activity under the NLRA.

HELP Committee to Consider New NLRB Nominee Next Week

Thu, 13 Nov 2014 08:00:00 +0000

In an effort to expedite confirmation of Lauren McFerran to serve as a Member of the National Labor Relations Board, the Senate Committee on Health, Education, Labor and Pensions (HELP) has scheduled a full committee hearing for next Thursday, November 20 to discuss her candidacy. In a surprise move, on November 12 President Obama wi

President Reportedly Withdraws Sharon Block's NLRB Nomination

Wed, 12 Nov 2014 08:00:00 +0000

Perhaps sensing former recess appointee Sharon Block's confirmation to the National Labor Relations Board would be an uphill battle, President Obama has reportedly announced that he is withdrawing her nomination. In her stead, as reported by Edward-Isaac Dovere of Politico, the President will name Lauren McFerran, chief labor counsel for the Senate Committee on Health, Education, Labor and Pensions, as his choice to be the fifth Board member.

NLRB Reaffirms D.R. Horton Decision Invalidating Arbitral Class Action Waivers

Tue, 11 Nov 2014 08:00:00 +0000

In a controversial decision that rejects the precedent of numerous federal and state courts, the National Labor Relations Board (NLRB) has reaffirmed its earlier decision in D.R. Horton, Inc., 357 NLRB No. 184 (2012). In D.R.

read more

NLRB General Counsel Acknowledges Legal Stumbling Block in Joint Employment Issue, Highlights Priorities

Wed, 29 Oct 2014 07:00:00 +0000

Speaking at a West Virginia University College of Law event last week, National Labor Relations Board General Counsel Richard F. Griffin, Jr. pointed out the pitfalls in his office's argument that franchisors should be named in unfair labor practice charge complaints as joint employers with their franchisees.
read more

Board Holds off on Major E-mail Use Pronouncement . . . For Now

Mon, 06 Oct 2014 07:00:00 +0000

Noah G. Lipschultz

In its long-awaited Purple Communications decision, on September 24, 2014, the NLRB reserved judgment on the most anticipated issue in the case: the legality of the employer’s electronic communications policy prohibiting use of e-mail for any nonbusiness reason, and the continuing validity of the NLRB’s 2007 Register Guard decision. The Board had previously invited briefing from both the parties and amicus regarding whether to overrule or modify Register Guard, and it was anticipated the Board would address that issue in the Purple Communicat
read more

California Hospital Ordered to Pay Union's Negotiating Costs

Wed, 17 Sep 2014 07:00:00 +0000

In a decision highlighting the importance of bargaining in good faith, the National Labor Relations Board recently held that a California Hospital must reimburse the union’s negotiating costs as a remedy for the hospital’s post-election misconduct. NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Harry I. Johnson adopted and expanded the Administrative Law Judge’s (ALJ) decision holding that Hospital of Barstow, Inc.
read more

Senate Considers Nomination of Sharon Block to the NLRB

Tue, 09 Sep 2014 07:00:00 +0000

A day after the Senate returned from its summer recess, the Committee on Health, Education, Labor and Pensions held a hearing to discuss the nomination of former recess appointee Sharon Block to be a member of the National Labor Relations Board. President Obama announced his intent to re-nominate Block to the Board on July 10, 2014.
read more

Unions Encourage Other Industry Sectors to Join Massive Fast Food Protest

Thu, 04 Sep 2014 07:00:00 +0000

As expected, individuals in several U.S.
read more

Fast Food Workers Plan Another Round of Coordinated Protests this Week

Tue, 02 Sep 2014 07:00:00 +0000

Employers at fast food chains around the nation should brace themselves for a series of protests and acts of civil disobedience that will occur this Thursday, September 4. The strikes, organized by members of the "Fight for 15" movement, are part of the nationwide crusade to raise the minimum wage. The Fight for 15 organization carried out a similar campaign to raise wages last spring.
read more

NLRB Addresses the Collective "We"

Thu, 28 Aug 2014 07:00:00 +0000

Denise Barton Ward

In applying a standard Wright Line analysis of whether employee activity constitutes conduct protected by Section 7 of the NLRA, the Board, in Hitachi Capital America Corp. and Virginia Kish, 361 NLRB No.
read more

NLRB Expands Reach of NLRA by Finding Employee Who Sought Help From Coworkers For Her Sex Harassment Complaint Was Protected

Tue, 19 Aug 2014 07:00:00 +0000

In yet another case that impacts both union and non-union employers, the National Labor Relations Board (NLRB) recently found that an employee who asked coworkers for assistance in preserving evidence for a sex harassment complaint she planned to raise with her employer was engaged in "concerted activities" for "mutual aid and protection" under Section 7 of the National Labor Relations Act (NLRA). Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12 (Aug. 11, 2014).
read more

Right to Union Representation Applies to Employer Referrals for Drug/Alcohol Tests NLRB Rules

Tue, 05 Aug 2014 07:00:00 +0000

Dale L. Deitchler

The National Labor Relations Board, in its July 31, 2014 decision in Ralph’s Grocery Co., 361 N.L.R.B. No.
read more

NLRB General Counsel Takes Aim at Franchises

Tue, 29 Jul 2014 07:00:00 +0000

In a move that could have a dramatic impact on the franchise business model, National Labor Relations Board General Counsel Richard Griffin has announced that his office intends to name a parent franchisor as a respondent in cases involving alleged unfair labor practices committed by franchisees if the parties are unable to reach a settlement. According to the Board, the agency is currently investigating the various cha
read more

President Obama Re-Nominates Recess Appointee to the NLRB

Fri, 11 Jul 2014 07:00:00 +0000

Two weeks after the U.S.
read more

NLRB General Counsel Outlines Priorities, Provides Noel Canning Update During Webinar

Wed, 09 Jul 2014 07:00:00 +0000

National Labor Relations Board General Counsel Richard Griffin discussed various steps the Board is taking in light of the Noel Canning decision, as well as his office’s priorities during a July 9 webinar sponsored by the American Bar Association.
read more

Supreme Court Invalidates NLRB Recess Appointments

Tue, 01 Jul 2014 07:00:00 +0000

Last week the U.S. Supreme Court issued its highly anticipated decision in Noel Canning v. NLRB. Affirming the D.C. Circuit's January 2013 ruling in favor of beverage distributor Noel Canning, the Court held that President Obama's January 2012 recess appointments to the National Labor Relations Board were unconstitutional because the Congressional recess was of insufficient length.
read more

Supreme Court Rules Against Public Sector Union in Limited Decision

Mon, 30 Jun 2014 07:00:00 +0000

The U.S. Supreme Court on Monday delivered a limited blow to public sector unions. In Harris v. Quinn, the Court held that compulsory union agency fees imposed on Illinois home care workers violate the First Amendment. However, the Court held back from issuing a more expansive ruling that could have sounded the death knell for public sector unionism as a whole. Specifically, the Court did not overrule its 1977 decision in Abood v. Detroit Bd.
read more

House Subcommittee Discusses Pending National Labor Relations Board Issues

Tue, 24 Jun 2014 07:00:00 +0000

The U.S. Supreme Court is just days away from releasing its recess appointment opinion in Noel Canning, which will determine whether the National Labor Relations Board will have to revisit and re-decide thousands of decisions. The validity of President Obama’s recess appointments to the NLRB, however, is not the only labor-related issue employers are watching.
read more

The New Normal: Employee's Profane, Insubordinate Outburst Is Protected Activity According to the NLRB

Thu, 19 Jun 2014 07:00:00 +0000

Kyllan B. Kershaw

On remand from the Ninth Circuit, the National Labor Relations Board held for the second time that an employer violated the National Labor Relations Act by terminating an employee who engaged in a profane and insubordinate outburst. The Board required the employer to reinstate the employee with back pay and benefits. Plaza Auto Center, Inc. and Nick Aguirre, 360 NLRB No. 117 (May 28, 2014).
read more

Board Strikes Down Non-Solicitation Policy and Finds that Employee Instant Messages About Job Security Are Protected Activity

Wed, 18 Jun 2014 07:00:00 +0000

Kyllan B. Kershaw

In Food Services of America, Inc., 360 NLRB No. 123 (May 30, 2014), a Board panel majority (Hirozawa, Schiffer) struck down an employer’s solicitation policy and concluded that instant messages between two employees involving job security are protected concerted activity under the National Labor Relations Act.
The employer’s solicitation policy provided that:
read more

Board Upholds Firing of Employee for Violating Overbroad and Unlawful Confidentiality Rule

Wed, 18 Jun 2014 07:00:00 +0000

Kyllan B. Kershaw

The NLRB recently held that an employer lawfully terminated an employee for intentionally violating an overbroad and unlawful confidentiality rule. Flex Frac Logistics, 360 NLRB No. 120 (May 30, 2014). While the Board’s decision is a welcome change of pace, the result is very fact-specific. The employer makes deliveries to energy companies for oil and gas drilling, using both directly-employed drivers and contractor-trucking companies.
read more

Littler Shareholders Maury Baskin and Michael Lotito Testify at NLRB Public Meeting

Fri, 11 Apr 2014 07:00:00 +0000

Nearly 50 speakers have or are slated to testify during the National Labor Relations Board’s 2-day public meeting on the proposed expedited or “ambush” election rule. The Board sought input on approximately 20 different issues stemming from the proposed rule, which would read more

Recent Board Cases Reach Different Results in Review of Employer Work Rules

Thu, 10 Apr 2014 07:00:00 +0000

Gregory A. Brown

A trio of recent cases highlights the National Labor Relations Board’s current focus on employer work rules and conduct policies. Under Section 8(a)(1) of the National Labor Relations Act, workplace rules that “explicitly restrict” an employee’s exercise of protected concerted activity are unlawful. Even workplace rules that do not explicitly limit employees’ rights may be illegal if employees reasonably would understand the rules to prohibit such activity. The NLRB’s two-member Republican minority and its three-member Democrat majority
read more

House Committee Advances Bills Seeking to Block NLRB Election Rule

Thu, 10 Apr 2014 07:00:00 +0000

During a Wednesday markup session, the House Committee on Education and the Workforce voted along party lines in favor of sending to the House floor two bills that would effectively prevent the National Labor Relations Board from moving forward with its proposed expedited or “ambush” election rule in its current form. According to Chairman John Kline (R-MN), the two bills “provide an appropriate government response” to the Board’s proposed rule. Continue reading this entry at Littler's read more

NLRB Clarifies Lawful Weingarten Representation Activity and Permissibility of Unilaterally Requiring Interviewees to Attest to the Veracity of Investigatory Interview Notes

Tue, 08 Apr 2014 07:00:00 +0000

Stephanie Gail Lee

On March 25, 2014, the National Labor Relations Board affirmed the Administrative Law Judge’s ruling that an employer violated various sections of the National Labor Relations Act by engaging in retaliatory acts against an employee for his conduct in representing a coworker at an investigatory interview, and by unilaterally adopting a requirement that employees certify the veracity of investigative interview notes. Murtis Taylor Human Services Systems, 360 NLRB No.
read more

Legislation would Effectively Prevent NLRB's Representation Election Rule From Moving Forward

Thu, 27 Mar 2014 07:00:00 +0000

As a preemptive strike against a final “ambush” representation election rule, Republican lawmakers in both chambers introduced legislation that would blunt its intended effects.
read more

NLRB General Counsel Maps Out Key Policy Initiatives

Tue, 11 Mar 2014 07:00:00 +0000

Jeffrey M. Place

Last week, NLRB General Counsel Richard Griffin issued a memorandum to the National Labor Relations Board’s Regional Directors, outlining legal issues that the Regions cannot address without first submitting to the Board’s Division of Advice in Washington, DC. The memorandum includes a lengthy list of issues Griffin considers “difficult” or “rare,” where the law is “in flux,” or where issues have “traditionally” been submitted to Advice. According to Griffin, these types of matters must undergo a centralized review proc
read more

DOL Delays Release of Final Persuader Rule

Fri, 07 Mar 2014 08:00:00 +0000

Perhaps due to the increased scrutiny business advocacy groups have placed on the implications of the DOL’s anticipated revisions to the “persuader” regulations, the agency has said it is once again delaying the final rule’s release. Initially slated for a November 2013 publication, the rule that would broaden the scope of an employer’s reportable activities by substantially narrowing the "advice exemption" in Section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA) was subsequently re-set for a March 2014 unveiling,
read more

House Committee Holds Hearing on Ambush Election Rule

Wed, 05 Mar 2014 08:00:00 +0000

Employee privacy and employer due process concerns were the focal point of Wednesday’s House Committee hearing on the National Labor Relations Board’s proposed expedited election rule. Last month, the Board re-issued an expansive proposal that would dramatically alter how union elections are conducted.
read more

NLRB Schedules Public Meetings to Discuss Proposed Expedited Election Rule

Tue, 25 Feb 2014 08:00:00 +0000

The National Labor Relations Board has scheduled at least two public meetings to address the controversial re-proposal of a rule that would make significant amendments to the union representation election process. After the so-called “ambush” election rule was first proposed in June 2011, the NLRB read more

NLRB Re-Issues Expansive Proposed Representation Election Procedures Rule

Wed, 05 Feb 2014 08:00:00 +0000

As expected, the National Labor Relations Board has re-issued its proposed rule that would dramatically change and expedite the union representation election process. According to the Board, the proposed changes to the process “are identical to the representation procedure changes first proposed in June
read more

BLS Report Indicates Slight Increase in Private Sector Unionization

Mon, 27 Jan 2014 08:00:00 +0000

While the overall percentage of union membership in the U.S. workforce remained unchanged at 11.3% in 2013, there was a slight increase in the number of unionized workers in the private sector for the first time since 2009, according to the new Bureau of Labor Statistics (BLS) annual report. On the whole, 16 million U.S.
read more

Supreme Court Expressed Skepticism Regarding Validity of President Obama's NLRB Recess Appointments

Tue, 14 Jan 2014 08:00:00 +0000

Michael J. Lotito

Ilyse Wolens Schuman

During Monday’s oral arguments of the closely watched case NLRB v. Noel Canning, several members of the Supreme Court – including those considered the most liberal – took issue with the government’s legal justifications in support of President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board. On January 25, 2013, the D.C.
read more

NLRB's Notice Posting Rule Effectively Void, But Employers Should Anticipate Renewed Rulemaking Efforts

Fri, 03 Jan 2014 08:00:00 +0000

The National Labor Relations Board’s legal attempt to revive its notice posting rule issued in August 2011 has run its course. The rule – Notification of Employee Rights under the National Labor Relations Act – would have required employers to conspicuously display a notice informing employees of their rights under the NLRA. In May 2013, in National Association of Manufacturers, et al. v. NLRB, the U.S Court of Appeals for the D.C.
read more

NLRB Dismisses Appeal, Opening Door to Re-Issued Election Rule

Tue, 10 Dec 2013 08:00:00 +0000

On Monday, the NLRB voluntarily dismissed its appeal in Chamber Of Commerce v. NLRB, the case in which the U.S. District Court for the District of Columbia found the Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011.
read more

NYU and UAW Agree to Union Election for Graduate Students

Wed, 27 Nov 2013 08:00:00 +0000

Walter C. Hunter

NYU and the UAW have reached an agreement to pave the way for an election among covered graduate students at NYU and NYU-Poly to determine whether the graduate students will be represented as a bargaining unit by the UAW.
read more

ALJ Holds Employers Can Ban "Gotcha" Audio Recordings From The Workplace

Wed, 06 Nov 2013 08:00:00 +0000

With audio recording applications (“apps”) often standard issue on ubiquitous smart phones, employees are now armed with a relatively inconspicuous way to capture their supervisor’s every gaffe. In September, a $280,000 jury verdict in favor of an employee on race and sex discrimination claims demonstrated just how damaging an audio recording can be in employment litigation. In that case, the plaintiff, who is African American, caught her supervisor, who is Hispanic, using the “N” word on tape, and the judge admitted the recording into evidence.&nbs
read more

Griffin Nomination Clears Procedural Hurdle

Tue, 29 Oct 2013 07:00:00 +0000

Update: The Senate voted 55-44 to confirm the nomination of Richard Griffin, Jr. to be the next NLRB General Counsel.
read more