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Category Archives: Labor Board Proceedings and Practice

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NLRB Sanctions “Micro-Unit” at Boston-Area Macy’s Store

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

Earlier this week, in a 3-1 decision in Macy’s Inc., the NLRB applied its controversial Specialty Healthcare decision in holding that an appropriate bargaining unit consists of employees in the cosmetics and fragrances department at a Boston-area Macy’s store, one of 11 store departments, and excludes all other sales employees at the store.  This is… Continue Reading

U.S. Supreme Court to decide court’s authority to review EEOC’s conciliation efforts

Posted in Discrimination and Harassment Law and Practice, Labor Board Proceedings and Practice

Can an employer challenge whether the EEOC has done its job in defense of a case brought by the EEOC?  The U.S. Supreme Court has agreed to decide that question.  The issue is whether courts have authority to review whether the Equal Employment Opportunity Commission (EEOC) properly engaged in efforts to “conciliate” a case prior… Continue Reading

Supreme Court Rules Recess Appointments Unconstitutional – What Does It Mean?

Posted in Labor Board Proceedings and Practice

In a landmark decision, the United States Supreme Court ruled yesterday that President Obama’s three recess appointments to the National Labor Relations Board (NLRB) were unconstitutional.  Click here for the ruling.  President Obama had relied upon the Constitution’s Recess Appointments Clause to appoint three members of the NLRB.  The Court ruled, however, that the “pro… Continue Reading

When Does “Offensive” Employee Conduct Lose Protection Under the NLRA?

Posted in Labor Board Proceedings and Practice

Following a trend that has developed over the last several years,[1] the National Labor Relations Board (the “Board”) recently found that the termination of a Starbucks employee violated the National Labor Relations Act (the “NLRA” or the “Act”), even though the employee had engaged in extremely offensive, obscenity-filled conduct in the presence of customers.[2] During… Continue Reading

FMLA Leave for Same-Sex Spouses

Posted in Labor Board Proceedings and Practice

The Labor Department announced today its plans to propose new regulations on the definition of “spouse” under the FMLA.  The new definition of “spouse” will include a legally married same-sex spouse, regardless of the employee’s state of residence.  This rule, though not unexpected, is a change from an August 2013 “Fact Sheet” issued by the… Continue Reading

Delay in Supreme Court Review of D.R. Horton Continues to Cost Employers Enforcing Arbitration Agreements

Posted in Labor Board Proceedings and Practice

Readers of our series of posts on D.R. Horton will recall our prediction that the National Labor Relations Board (NLRB or the Board) would continue its attacks on certain arbitration agreements.  As predicted, the NLRB’s administrative law judges (ALJ) continue to strike down any arbitration agreements that waive class or collective action claims and allow… Continue Reading

VW Aftermath – Factors Still Favor Non-Union South

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

Much speculation abounds regarding why workers at the Volkswagen (VW) plant in Chattanooga rejected the United Auto Workers’ (UAW) in a recent vote.  Factors appeared to be aligning in favor of the UAW, such as Statements of support for the union from VW representatives in Germany. Access to the plant for union organizers. Promise of… Continue Reading

NLRB Finds No ULP by VW in Chattanooga

Posted in Labor Board Proceedings and Practice

The National Labor Relations Board (NLRB) has found that Volkswagen (VW) did not commit unfair labor practices (ULPs) in the support its German parent company showed to the United Auto Workers’ union (UAW) at VW’s plant in Chattanooga.  Despite apparent opposition from members of management at the Chattanooga VW plant, and despite concern expressed by… Continue Reading

NLRB Continues to Strike Down Arbitration Agreements

Posted in Labor Board Proceedings and Practice

Readers of a previous post will recall that in December 2013, the Fifth Circuit Court of Appeals rejected the view of the National Labor Relations Board (NLRB or the Board) in the significant D.R. Horton ruling.  There, the Fifth Circuit held that an arbitration agreement that requires employees to arbitrate all employment disputes but restricts… Continue Reading

NLRB Loses Appeal in D.R. Horton: Arbitration Agreements Can Require Only Individual Arbitration, But …

Posted in Labor Board Proceedings and Practice

In a split decision, the Fifth Circuit Court of Appeals has rejected the view of the National Labor Relations Board (the Board). According to the Court’s majority opinion, an arbitration agreement that requires employees to arbitrate all employment disputes but restricts the arbitration proceedings to individual arbitrations only (i.e., not allowing class or collective arbitrations)… Continue Reading

Micro-Units – What Are They and Why Should I Care?

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

“Micro-unit” is the term used to refer to a small portion of the total number of employees at a particular worksite which a labor union seeks to represent. Recent decisions by the National Labor Relations Board (“NLRB” or the “Board”) have raised employers’ concerns that unions will focus organizational efforts on such small groups, or… Continue Reading

Check Your Enforcement of Your “No Solicitation and No Distribution” Rule

Posted in Labor Board Proceedings and Practice

In a recent decision involving The Boeing Company1, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) found that Boeing violated the National Labor Relations Act (NLRA) when the Human Resources manager at its North Charleston, South Carolina plant, told an employee that he could not “talk about or solicit” for the… Continue Reading

Does Your “Courtesy” Policy Violate the NLRA?

Posted in Labor Board Proceedings and Practice

The National Labor Relations Board (NLRB, “the Board”) is at it again. In a recent ruling, the Board found an employer’s routine “courtesy” policy violated its employees’ Section 7 rights. Time will tell whether a federal court will agree with the Board and enforce its decision, but employers should take note of the current regulatory… Continue Reading

Board Launches New Webpage Discussing Employee Rights

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

On June 18, the Labor Board (“Board”) announced the creation of a new webpage describing the rights of employees to act together for their “mutual aid and protection, even if they are not in a union.” Many employers may see this as the latest example of “we’re from the government and we’re here to help… Continue Reading

Federal Court Halts Board’s Changes in Election Rules

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

The National Labor Relations Board’s recent attempt to change its union election rules has been halted by a federal district court in Washington, D.C. The Court ruled that the attempted changes were not valid because the vote to approve the rules occurred when the Board did not have a quorum (Chamber of Commerce v. NLRB,… Continue Reading

Demanding Social Media Site Passwords Now Illegal in Maryland

Posted in Labor Board Proceedings and Practice

Social media continues to gain attention in the employment law field.  From recent NLRB advice memoranda to Congress considering new legislation, to every employer now being advised to at least have a “policy” on social media, the news keeps pouring in. (Read this article by Eric Yaverbaum on The Washington Post blog, or this one… Continue Reading

Labor Board Rules that Arbitration Agreements Forbidding Class Arbitration is Unlawful

Posted in Labor Board Proceedings and Practice

As a matter of federal law, employers can require employees to agree to arbitrate any employment dispute.  But, can that arbitration agreement force an employee to arbitrate only individual claims, not class (or collective) claims?  Recently, the National Labor Relations Board said NO.  Click here for the Board’s ruling. This ruling appears at odds with… Continue Reading

NLRB postpones effective date for Notice-Posting Rule

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

The NLRB has postponed by three months the effective date for its notice-posting rule at the request of a federal court overseeing a legal challenge to the regulation from business groups.  The new effective date is April 30, 2012. The rule requires businesses to post notices apprising workers of their right to unionize.   Click here for… Continue Reading

NLRB Delays Employer Notice Posting

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

The National Labor Relations Board has postponed until Jan. 31, 2012 the effective date of its regulation requiring most private employers to post a notice informing employees of their rights under federal labor law.  According to the NLRB, the purpose of the delay is to provide enhanced education and employer outreach .  Click here to read… Continue Reading

Union’s Financing Of Lawsuit Objectionable Conduct During Union Campaign

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining, Wage and Hour Law and Practice

According to the National Labor Relations Board (NLRB), a Union engages in objectionable conduct if, during a union campaign drive to represent workers, the union finances a lawsuit seeking to recover overtime pay for the same employees being recruited to vote for the union.  This decision is important for two reasons: Employers facing an overtime… Continue Reading

Most Private Sector Employers Required to Post NLRA Notice

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

On August 25, 2011, the National Labor Relations Board issued a Final Rule which requires most private sector employers to post a notice informing employees of their rights under the National Labor Relations Act.  Click here for a copy of the Final Rule. Employers will be required to post a Notice which can be found… Continue Reading

Labor Board Report Shows Its Struggles with the Realities of Social Media

Posted in Labor Board Proceedings and Practice

The NLRB’s Division of Advice recently issued memoranda in several different cases, showing that not all activity by employees on social media sites constitute protected activity.  These reports show that the Labor Board, like many employers, struggle with what is “protected concerted activity” – and thus protected from any employer discipline – and what are… Continue Reading