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Category Archives: NLRB Developments

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Supreme Court Rules That Former NLRB Acting General Counsel Served in Violation of Federal Law

On March 21, 2017, the United States Supreme Court ruled that the National Labor Relations Board’s former Acting General Counsel Lafe Solomon served in violation of the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345, et seq. (“FVRA”) when he continued in that position after President Barack Obama nominated him for a full term as… Continue Reading

D.C. Circuit Rejects NLRB Finding That FedEx Drivers Are Employees, Not Independent Contractors and Raises Doubts as to Board’s Joint Employer Test

Over the past week the U.S. Court of Appeals for the District of Columbia Circuit weighed in on two separate related efforts by the Obama-Board to expand the protections of the National Labor Relations Act (the “Act”) to workers who are not in traditional employer-employee relationships. One Court – Two Cases In a March 3,… Continue Reading

Miscimarra Indicates the Future Trump NLRB – Employment Law This Week

Featured on Employment Law This Week – Philip Miscimarra, Acting Chairman of the National Labor Relations Board (NLRB), has given a strong indication of the changes likely to come once President Trump fills vacant seats on the NLRB. In a sharply worded dissent, Miscimarra doubled down on his disagreement with the NLRB’s controversial 2014 rule… Continue Reading

NLRB Acting Chair Dissents Point to Likely Changes to Board Election Rules and Employee Handbook and Email Standards

NLRB Acting Chair Philip Miscimarra has given the clearest indication to date of what steps a new Republican majority is likely to take to reverse key elements of the Labor Board’s hallmark actions of the Obama administration once President Trump nominates candidates for the Board’s two open seats and the Senate confirms. In each of… Continue Reading

What’s Really in The NLRB’s New Amendments to Its Rules And Regulations and What Do These Changes Mean For Employers?

On February 23, 2017 the National Labor Relations Board (“Board” or “NLRB”) made public a proposed Final Rule to revise its Rules and Regulations “ (the “Rules”)  to reflect modern technology, such as E-Filing, and eliminate references to telegraphs, carbon copies, and the requirements for hard copy submissions and multiple copies, and to eliminate legalistic… Continue Reading

D.C. Court of Appeals Highlights Importance of Offers of Proof in NLRB Representation Hearings Under Expedited Election Rules

A recent decision of the United States Court of Appeals for the District of Columbia Circuit in connection with an employer’s challenge to a National Labor Relations Board (“NLRB” of “Board”) representation election in which the Board certified a “wall to wall” bargaining unit provided clear evidence of just how critical it is for employers… Continue Reading

Obama’s NLRB Legacy Remains: New GC Memo Locks Active Arbitration Agreement/Class Action Waiver Cases to Murphy Oil Holding

Following on the heels first of the U.S. Supreme Court’s January 13, 2017 announcement that it granted certiorari in NLRB v. Murphy Oil USA, along with Epic Systems Corp. v. Lewis (7th Circuit) and Ernst & Young, et al. v. Morris (9th Cir.), and then of President Trump’s January 26, 2017 appointment of Philip A…. Continue Reading

President Trump Appoints Philip A. Miscimarra Acting Chair of National Labor Relations Board – The Beginning of the End of the “Obama Board”

By appointing Philip Miscimarra, who has served as a Member of the National Labor Relations Board (“NLRB” or “Board”) since August 2013, to serve as Acting Chair of the agency, President Donald Trump has taken the first step in what will undoubtedly be an ongoing process to change the National Labor Relations Board. Chairman Miscimarra… Continue Reading

Epstein Becker Green to Participate in the 11th Annual National HR in Hospitality Conference & Expo

Epstein Becker Green is pleased to be participating in the 2017 National HR In Hospitality Conference & Expo at the Aria Hotel in Las Vegas on March 27-29, 2017.  EBG is sending two of its hospitality industry focused attorneys to represent the Firm, Jeffrey H. Ruzal and Steven M. Swirsky. Jeff and his co-panelists will discuss… Continue Reading

NLRB Rings In the New Year by Signaling It Will Continue Its Pro-Union Rulings

In yet another decision that exhibits the current Board’s overreaching and expansive view of its jurisdiction, the Board recently ruled that nurses who supervise and assign other hospital staff are not statutory supervisors. A Position Expressly Created to be Supervisory is Not Supervisory, According to the Board In 2016, Lakewood Health Center (“Lakewood”) restructured its… Continue Reading

Key NLRB Decisions in 2016 – Employment Law This Week

The year-end episode of Employment Law This Week  looks back at the biggest employment, workforce, and management issues in 2016. Our colleague Laura Monaco discusses the National Labor Relations Board’s decision in Miller & Anderson, which expanded the already-relaxed joint-employer standard adopted by the Board in its August 2015 decision in Browning Ferris Industries.  The show also reviews the Trustees… Continue Reading

NLRB Uses Hyper-Technical Rule to Overturn Employer’s Landslide Election Victory

As we previously reported, the ambush election rules implemented by the National Labor Relations Board (“Board”) last year tilted the scales of union elections in labor’s favor by expediting the election process and eliminating many of the steps employers have relied upon to protect their rights and those of employees who may not want a… Continue Reading

NLRB Majority Strikes Down Overly Broad Employee Handbook Policies

Our colleagues Lauri F. Rasnick and Jonathan L. Shapiro, attorneys at Epstein Becker Green, have a post on the Financial Services Employment Law blog that will be of interest to many of our readers: “Policies Prohibiting ‘Insubordination or Other Disrespectful Conduct’ and ‘Boisterous or Disruptive Activity in the Workplace’ Struck Down by NLRB Majority.” Following is… Continue Reading

NLRB GC Moves to Permit Disruptive One Day Strikes

In the waning days of the Obama Administration, the President’s appointed General Counsel to the NLRB took official action this week to permit questionable and disruptive strike activity, including one day strikes that are frequently used by aggressive unions against hospitals and other employers.  Specifically, the GC’s Office issued an Operations-Management Memorandum acknowledging unions and employees “are… Continue Reading

Employers Under the Microscope: Is Change on the Horizon? – Attend Our Annual Briefing (NYC, Oct. 18)

When: Tuesday, October 18, 2016 8:00 a.m. – 4:00 p.m. Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019 Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including: Latest Developments from the NLRB Attracting and Retaining a Diverse Workforce ADA… Continue Reading

What the NLRB’s Ruling That Graduate Teaching Assistants Are Employees, With the Rights to Organize and Bargain Collectively Means for Employers

The National Labor Relations Board (NLRB or Board) has ruled that graduate teaching assistants, i.e. graduate students who provide instruction and assist faculty with research as part of their own post-graduate education are “employees” within the meaning of the National Labor Relations Act (NLRA or Act), and thus have the right to join unions and… Continue Reading

Can Your Corporate Social Responsibility Policy Make You a Joint-Employer With Your Suppliers? The NLRB May Find That It Does

The National Labor Relations Board (NLRB or Board), which continues to apply an ever expanding standard for determining whether a company that contracts with another business to supply contract labor or services in support of its operations should be treated as a joint employer of the supplier or contractor’s employees, is now considering whether a… Continue Reading

NLRB Requires Specific Waivers During Bargaining – Employment Law This Week

Featured on the new episode of Employment Law This Week: Employers must have specific waivers to make unilateral policy changes when bargaining with a union. That’s according to the NLRB, which once again clarified its “clear and unmistakable” waiver standard to restrict employers’ midterm changes. In this case, an employer relied on a broad management rights… Continue Reading

NLRB Finds “Discharge” Is an “Actual Discharge” and Violates the National Labor Relations Act Even If It Is Immediately Reversed and Employee Suffers No Harm

The National Labor Relations Board (“NLRB” or “Board”) has reversed the findings of an Administrative Law Judge (“ALJ”) who found that an employee who was told he was fired and then almost instantly told by the owner of the company he worked for that he was not fired and continued to work without any loss… Continue Reading

NLRB Drops Other Shoe on Temporary/Contract Employee Relationships: Ruling Will Require Bargaining In Combined Units Including Employees of Multiple Employers – Greatly Multiplies Impact of BFI Expanded Joint Employer Test

The National Labor Relations Board (“NLRB” or “Board”) announced in its 3-1 decision in Miller & Anderson, 364 NLRB #39 (2016) that it will now conduct representation elections and require collective bargaining in single combined units composed of what it refers to as “solely employed employees” and “jointly employed employees,” meaning that two separate employers will… Continue Reading

Supreme Court Agrees to Review D.C. Circuit’s Decision That Former NLRB Acting General Counsel Served in Violation of Federal Law

On June 20, 2016, the United States Supreme Court granted a request by the National Labor Relations Board (“NLRB” or the “Board”) to review a decision from the D.C. Circuit Court of Appeals, which found that the Board’s former Acting General Counsel Lafe Solomon served in violation of the Federal Vacancies Reform Act, 5 U.S.C…. Continue Reading

NLRB Scraps Rule on Mixed-Guard Unit Recognition – Employment Law This Week

Featured on Employment Law This Week: The NLRB reverses its mixed-guard unit recognition rule. If a union represents both security guards and other employee groups, then an employer’s decision to recognize the union is voluntary. Before this decision, employers could also withdraw their recognition if no collective bargaining agreement was reached.  Now, employers must continue… Continue Reading

NLRB Shifts Power Toward Unions During Strikes – Employment Law This Week

Featured on Employment Law This Week: The National Labor Relations Board (NLRB) finds the hiring of permanent replacements for strikers to be an unfair labor practice. In a 2-1 decision that could benefit unions during contract negotiations, the NLRB found that a continuing care facility in California violated federal labor law when it hired permanent… Continue Reading