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Category Archives: Unfair Labor Practices

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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

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

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

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

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

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 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

NLRB Wants Employer to Pay Union’s Bargaining Expenses – Aggressive Push For Broader Use of “Enhanced Remedies” Continues

One of the hallmark initiatives of NLRB General Counsel Richard F. Griffin Jr. has been the pursuit of more aggressive remedies in response to what the General Counsel considers to be egregious unfair labor practices (“ULP’) activity.  While his predecessors and prior Board members spoke of “special remedies” that they would seek to impose in… Continue Reading

NLRB Dramatically Educates Private School on Meaning of Concerted Protected Activity

While we have been reminding readers of the fact that  the National Labor Relations Act (the “Act”) protects employees regardless of whether they are represented by a union and the Act applies to non-unionized workforces, too, recently  a National Labor Relations Board (the “NLRB”) Administrative Law Judge issued a decision following an unfair labor practice… Continue Reading

7-Eleven Franchise Operators’ Overtime & Minimum Wage Lawsuit Given Green Light by NJ District Court

By Maxine Neuhauser For retail and hospitality industries especially,  it is turning out to be a long, hot summer as franchises continue to be in the employment law spotlight. On July 29, 2014 the NLRB’s General Counsel announced a decision to treat McDonald’s, USA, LLC as a joint employer, along with its franchisees, of workers  43 McDonald’s franchised… Continue Reading

BIG MAC ATTACK : NLRB General Counsel Argues Franchisees and McDonald’s Are Joint Employers

NLRB General Counsel Richard Griffin announced on Tuesday July 29th   that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of 181 charges pending against McDonald’s, USA, LLC and various of its franchisees, in which the Board will allege that the company and its franchisees are joint-employers. If the General Counsel… Continue Reading

NLRB Continues to Increase Use of Section 10(J) Injunctions

By Steven M. Swirsky and Peter M. Panken NLRB General Counsel Richard Griffin has declared in an April 30, 2014 General Counsel Memorandum. that his office will continue and expand the increasingly aggressive pursuit of injunctions in Federal Court against employers in connection with union organizing and bargaining for initial collective bargaining agreements. In GC… Continue Reading

NLRB Expands Scope of Employer Solicitation of Grievances as Unlawful Coercive Conduct

By Kara M. Maciel and Lindsay A. Smith On March 12, 2014, the National Labor Relations Board (“the Board”) concluded that a beef processing company committed an unfair labor practice in violation of the National Labor Relations Act (“NLRA”) when it terminated three workers for striking in protest of their working conditions (“Greater Omaha Packing… Continue Reading

Overbroad Handbook Policies May Constitute Unfair Labor Practices

By Maxine Neuhauser As we have discussed on a number of prior occasions (Fifth Circuit Rejects The NLRB’s D.R. Horton Decision On Arbitration Waivers; Obama’s Labor Agenda Continues to Advance – Griffin Confirmed as NLRB GC; NLRB Administrative Law Judge Finds Medical Center’s Technology Usage Policies Violated Employees Rights Under the National Labor Relations Act…. Continue Reading

Fifth Circuit Rejects The NLRB’s D.R. Horton Decision On Arbitration Waivers

By : Lisa M. Watanabe On December 3, 2013, the Fifth Circuit issued its much anticipated decision overturning the National Labor Relations Board’s (“NLRB”) controversial D.R. Horton, Inc. decision invalidating class action waivers and holding that requiring employees to sign such waivers violated employees’ rights under the National Labor Relations Act (the “Act”).  As previously… Continue Reading

President Obama’s NLRB Acting General Counsel Appointment Invalid – Court Rules Agency Without Power to Issue Unfair Labor Practice Complaint

By Adam C. Abrahms, Steven M. Swirsky, and D. Martin Stanberry On Tuesday, August 20th, in an opinion that follows in the wake of Noel Canning, United States District Judge Benjamin H. Settle dismissed an injunction petition filed by Ronald Hooks, a Regional Director  of the National Labor Relations Board, on the grounds that he was… Continue Reading

Bad Faith Bargaining or Just Bad Bargaining: President Obama Names Unconstitutionally Appointed Griffin as NLRB GC

On August 1st President Obama made a bold statement by appointing Richard Griffin to serve as the NLRB’s General Counsel only three days after the former union lawyer vacated his unconstitutional recess appointment as a NLRB Board Member. The President statement by appointment made at least two things clear – The President wants an aggressive… Continue Reading

Third Circuit: President Obama’s Recess Appointments to the NLRB Were Unconstitutional

By: Evan Rosen and Adam C. Abrahms Yesterday, in a 2-1 decision, the Third Circuit Court of Appeals became the second appellate court to issue a ruling that President Obama’s recess appointments to the National Labor Relations Board (the “Board”) were constitutionally invalid because they did not occur during an “intersession recess” of the United… Continue Reading

Webinar Recording: Employment Practices Facing NLRB Scrutiny

On Friday, November 16, I participated in a free 75-minute webinar discussion with Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board.  The webinar was moderated by Terence H. McGuire of the Practical Law Company.  We discussed: Factors that the NLRB considers when deciding whether to prosecute unfair labor practices based on… Continue Reading

NLRB Says Employer Can’t Fire Employee for Vulgar and Threatening Statements

Seemingly ignoring the requirements for employers to keep a harassment free workplace and disregarding their right to keep a respectful and orderly environment, last week in Fresenius USA Manufacturing, Inc. the NLRB found that the company committed an unfair labor practice by terminating an employee who admitted to using vulgar and threatening language. Overturning an administrative law… Continue Reading

Labor Law vs. Common Sense – NLRB Continues Targeting Non-Union Employers and Common Sense

It seems with each passing month the National Labor Relations Board or its Acting General Counsel opens yet another new front on its assault on non-union employers.  A trend has emerged which puts labor law in conflict with standard employment practices.  From hire, to control of the workplace and employer property, to the manner post-termination… Continue Reading