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Category Archives: Labor Board Proceedings and Practice

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Michael Moschel Comments on Independent Contractor Misclassification

Posted in Labor Board Proceedings and Practice

Bass, Berry & Sims attorney Michael Moschel was interviewed for an article about the Department of Labor’s (DOL) recent crackdown on the misclassification of independent contractors. The article outlines the warning signs employers can look for to determine if an employee is misclassified; explains how memorandums of understanding are being used to share information with… Continue Reading

Affirmative Action Plans – Your Common Questions Answered

Posted in Labor Board Proceedings and Practice

Bass, Berry & Sims attorney Bob Horton authored the article, “Affirmative Action Plans – Your Common Questions Answered,” that was published by Contract Management magazine in the January 2015 issue. In the article, Bob answers some of the most common questions that are asked when a company is tasked with preparing an affirmative action plan…. Continue Reading

NLRB Finds New Section 7 Rights to Use Employer Owned Email Systems: What It Means for Employer Policies

Posted in Labor Board Proceedings and Practice

On December 11, 2014, the National Labor Relations Board (the “NLRB” or “Board”) again departed from a long line of past precedent and overruled its 2007 decision in Register Guard, 351 NLRB 1110 (2007).  The Board in Register Guard had held that employees have no statutory right to use their employer’s email accounts for Section… Continue Reading

Board Finalizes New Rule Modifying Union Election Procedures: A Brief Summary of Provisions

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

On December 12, the National Labor Relations Board (the “Board”) finalized a new rule amending its representation case procedures.  Employers should be aware of how the new rule will affect union organization in the workplace.  The rule is aimed at “streamlining and modernizing” union election procedures so as to “expeditiously resolv[e] questions of representation.”  The… Continue Reading

Article Emphasizes Importance of Anti-Discrimination Policies

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

Bass, Berry & Sims attorneys Tim Garrett, Michael Moschel and Dustin Carlton authored the article “Handling Workplace Issues in a Politically Charged Climate” that was published by InsideCounsel on December 17. Citing heightened public interest in an employer’s response to workplace harassment due to recent high profile NFL scandals, the authors remind employers about best… Continue Reading

Analyzing recent NFL scandals: Is some conduct ever ‘off duty’?

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

Bass, Berry & Sims attorneys Tim Garrett, Michael Moschel and Dustin Carlton authored the article “Analyzing Recent NFL Scandals: Is Some Conduct Ever ‘Off Duty’?” that was published by InsideCounsel on December 4. In the article, the authors discuss recent allegations involving off-duty behavior of NFL players and how the league responded to the behavior…. Continue Reading

Pro-Union Impact of NLRB Decision in Northwestern University Case

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

Bass, Berry & Sims attorneys Michael Moschel, Tim Garrett and Dustin Carlton authored the article “NLRB’s Expansive View: The Northwestern ‘Football’ Ruling and Why Inside Counsel Should Care,” that was published by InsideCounsel on November 13. In the article, the authors discuss how the recent NLRB decision in the Northwestern University case may indicate a… Continue Reading

NLRB Won’t Budge on Class Action Waivers: Finds that Murphy Oil’s Mandatory Arbitration Agreements Violate the NLRA

Posted in Labor Board Proceedings and Practice

On October 28, 2014, the National Labor Relations Board (the “Board”) again held that employers violate Section 7 of the National Labor Relations Act (“NLRA”) when they require employees to sign class action waivers as a condition of their employment.  The Board first so held in D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3,… Continue Reading

Terminated Employee Entitled to Union Representation Prior to Taking Reasonable Suspicion Drug Test

Posted in Labor Board Proceedings and Practice

The National Labor Relations Board (NLRB), in agreeing with an administrative law judge’s (ALJ) April 2013 ruling, has held that suspending and discharging a union member for refusing a drug and alcohol test after the employee demanded union representation is a direct violation of the National Labor Relations Act (NLRA). 

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