National Labor Relations Board

President Biden did not waste any time after taking office on January 20, 2021. Shortly after the Presidential Oath of Office was administered, Biden signed 17 executive actions, which either impact the workplace or provide insight into what may be forthcoming under the new administration for employers.

A Flurry of Executive Orders on Day One

Biden issued a memorandum to agencies to freeze all last-minute regulations put in motion by the prior administration as President Trump was leaving office. Notably, these regulatory “freeze memos” are not uncommon for incoming administrations to issue. This pause on the prior administration’s last-minute regulations will give the Biden administration the opportunity to evaluate the so-called “midnight regulations” and determine if they will become final, be amended, or rescinded altogether.

He also issued an Executive Order reinforcing that Title VII prohibits the federal government from discriminating on the basis of sexual orientation or gender identity. The Order references the recent Supreme Court case of Bostock v. Clayton County (blogged about here). Specifically, the Order states “[i]t is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” The Order notes that laws that prohibit sex discrimination (specifically referencing Title IX, the Fair Housing Act, and section 412 of the Immigration and Nationality Act) also prohibit discrimination on the basis of gender identity or sexual orientation.


Continue Reading Biden and the Workplace: Early Days, Major Changes

Parties before the National Labor Relations Board (“NLRB” or the “Board”) often wonder whether it is worthwhile to appeal adverse rulings or respond when favorable rulings are received. Two recent appellate court decisions demonstrate the value of sticking with an argument from start to finish.

A Winning Formula

First, in Davidson Hotel Company v. NLRB (D.C. Cir. 2020), the D.C. Circuit recently took the highly unusual step of rejecting an NLRB determination as to the appropriate unit for bargaining at a small, full-service hotel in Chicago. For context, the NLRB had determined that the Davidson Hotel’s employees should be segregated into three separate bargaining units: a unit of front desk employees, a unit of housekeeping employees, and a unit of food and beverage employees. The union petitioned the Board to certify a single unit of housekeeping employees and food and beverage employees.

The Board’s Regional Director decided that a unit consisting of the housekeeping and the food and beverage employees was not an appropriate unit because it did not include the front desk employees, and he dismissed the union’s petition for an election. The Regional Director reached his decision by applying the NLRB’s “community of interest” test, under which the NLRB examines: (1) whether employees in the proposed unit have sufficient commonality in working conditions and job duties (among other factors) such that bargaining as a collective group is possible; and (2) whether employees in the unit have such distinctive interests from those who are excluded-here, the front desk employees-such that they should bargain separately. In his order dismissing the union’s initial petition for a single bargaining unit of housekeeping and food and beverage employees, the Regional Director decided that the unit did not have distinctive interests from the front desk workers, but he hinted that two separate units (one for housekeeping and another for food and beverage) might be appropriate.

Following his cue, the union promptly filed two petitions seeking one election in the housekeeping unit and a second election in the food and beverage service unit. Again, the union did not seek to represent the front desk employees. This time, the Regional Director found that the community of interest test was satisfied and he certified the two units. When an election was held, the union prevailed in both units.


Continue Reading A Tale of Two Appeals: Recent Appellate NLRB Decisions Show the Value of Sticking with an Argument

The 2020 presidential race is well underway in the U.S. Labor policy has been and will continue to be a key talking point for Democratic candidates and President Donald Trump moving into the general election.

In part one of this two-part article, we examine the key labor policy proposals advanced by the leading Democratic contenders

In a significant decision for the service provider community, this month the National Labor Relations Board dismissed a claim that an employer was required to provide its employees’ union the service contracts it had with its customer. G4S Security Solutions USA, Inc. 369 NLRB No. 7 (2020). The panel decision was unanimous. Notably, however, the decision left open the possibility that a union could require the production of a service agreement if it could demonstrate the agreement was relevant to bargaining.

Continue Reading Withholding Service Contracts Not Unlawful

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

In a much anticipated decision, the National Labor Relations Board (the “Board”) recently ruled in Velo Express, Inc. and Jeannie Edge that misclassifying employees as independent contractors does not violate the National Labor Relations Act (the “Act”).
Continue Reading A Resounding “No”: NLRB Nixes Argument that Misclassification Violates NLRA

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 New NLRB GC Peter Robb Spells Relief For Besieged Employers

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 Trump Announces Nomination For NLRB General Counsel – What It Means For Employers