National Labor Relations Board

In August, the National Labor Relations Board issued a notice of proposed rulemaking to address three rather limited situations involving employee representation issues. These proposed rules follow 70-plus years of experimentation with a hodgepodge of ad hoc one-off decisions, dramatic changes and frequent reversals in the process of enabling employees to exercise their rights under

This article was originally published on Law360.com.

Three recent decisions arising under the National Labor Relations Act highlight that ambiguity and inattentiveness are the twin banes of labor and employment attorneys. In all three cases, the dispute arose because two personnel policies or approaches overlapped, opening the way for conflicting claims. As these cases demonstrate,

Many of the NLRB initiatives established during the previous administration could soon be no more.

On December 1, 2017, the new NLRB General Counsel, Peter Robb, issued a memorandum that rescinded numerous memorandums and initiatives of his predecessor, and set forth the types of future charges that should be submitted to his office for advice. Highlighting the list of the seven expressly-rescinded memorandums are:

  • GC 11-04 (Default Language). This 2011 memo instructed all NLRB Regional Offices to include certain “default language” in all informal and compliance settlement agreements that provided that if the Charged Party/Respondent failed to comply with the terms of the settlement agreement, the underlying complaint would be re-issued and summary judgment would be entered in favor of the GC. The only issue that could be raised to the Board is whether the Charged Party/Respondent, in fact, defaulted on the terms of the settlement agreement.
  • GC 12-01 (Guideline Memorandum Concerning Collyer Deferral). This 2012 memo changed the previous deferral policy, directing NLRB Regional Offices to stop deferring Section 8(a)(1) and (3) cases where arbitration will not be completed within a year. If the grievance arbitration was not likely to be completed within one year and deferral was deemed inappropriate, the Region was instructed to conduct a full investigation on the merits of the charge.


Continue Reading

On Monday, September 26, the U.S. Senate voted and confirmed William Emanuel as the newest member of the National Labor Relations Board.  Emanuel is a long-time management-side labor and employment attorney, who was nominated by President Trump in June to fill the vacant NLRB seat.  With Emanuel’s confirmation, the NLRB has a Republican majority for

The White House announced on Friday, September 15, 2017, that President Donald Trump has nominated Peter B. Robb to serve as the next General Counsel for the National Labor Relations Board.  Robb is a management-side labor and employment attorney, who currently practices in Vermont.  Robb previously worked as a field attorney for the NLRB, a supervisory attorney for the Federal Labor Relations Authority, and then as the Chief Counsel to former NLRB member Robert Hunter (a Republican), who was appointed to the Board in 1981 by President Reagan.  In 1985, Robb began private practice representing company management in labor and employment law.  As the General Counsel, Robb would decide which issues to put before the NLRB for resolution.  A rollback of a number of union-friendly decisions is expected.
Continue Reading

On January 13, 2017, the US Supreme Court agreed to determine whether arbitration agreements that include class action waivers are legally enforceable under the National Labor Relations Act (NLRA). In doing so, the Court granted the petitions for certiorari, and consolidated, three cases from the US Court of Appeals for the Fifth, Seventh and Ninth

On August 1, 2016, the U.S. Department of Labor and Doctors Associates Inc. (Subway Restaurants) announced a voluntary agreement formalizing their ongoing collaboration.  This agreement is a first of its kind and seeks to ensure that franchise owners have the tools necessary to comply with wage and hour laws.  Since 2012, Subway has made available a platform for the DOL to provide training and resources to franchisees.  Despite the DOL’s efforts, other companies have reportedly been reluctant to enter into similar agreements due to fears that other government agencies will use such an agreement as evidence of a joint employer relationship.  Interestingly, Subway has been collaborating with the DOL for over three years and although this collaboration has been very much in the public eye, no agency has indicated that such a relationship would make them a joint employer.  The DOL hopes the fact that Subway, the world’s largest franchisor, entered into the compliance agreement will encourage other companies to follow suit.  Given the various government agencies’ joint employer efforts, all companies, whether franchisors or not, should analyze their own specific circumstances before entering into a similar agreement.
Continue Reading

Earlier this month, the National Labor Relations Board issued a memorandum announcing the steps it will take to report complaints alleged against federal contractor employers in order to comply with the Fair Pay and Safe Workplaces Executive Order 13673.  In doing so, the NLRB became the first government agency to implement reporting procedures under the Executive Order, though regulations have not been finalized.  Noteworthy, it appears the NLRB will use the Executive Order’s reporting requirements as a pressure point to further encourage the early settlement of complaints filed against companies.  While it remains to be seen exactly how the Executive Order’s “blacklisting” procedures will impact federal contractors, it is important that companies understand the potential impact of the Executive Order and the planned procedures of the various administrative agencies, including the NLRB, to comply with the Executive Order.
Continue Reading

There has been no slow down to the National Labor Relations Board’s attention to employer handbook policies that purportedly can discourage “protected concerted activity.”  We previously suggested five handbook provisions to update, but the continuous wave of Board decisions has expanded what language the NLRB considers to have a “chilling” effect on employees exercising their Section 7 rights to communicate about their wages, hours, and other terms and conditions of employment.  As with our previous post, this is true even for employers without a unionized workforce.  In light of the Board’s continued focus, the following handbook policies may deserve another look:
Continue Reading