On February 25, 2014, NLRB General Counsel, Richard F. Griffin, Jr., issued the first General Counsel Memo of the year (GC 14-01) identifying cases that the NLRB’s Regional Directors must refer to the NLRB’s Division of Advice for “centralized consideration” and to “enhance our ability to provide a clear and consistent interpretation of the [National Labor Relations] Act.” The list is divided into three groups, two of which should be of particular concern to employers. The first group includes issues that reflect General Counsel initiatives or areas of the law and labor policy that are of “particular concern” to him. The second group includes what he describes as “difficult legal issues that are relatively rare in any individual Region and issues where there is no governing precedent or the law is in flux.” Finally, the third group includes matters that have traditionally been submitted to the Division of Advice.
Continue Reading NLRB General Counsel Announces Priority Matters To Be Submitted For Advice

Class action waivers in arbitration agreements, when used correctly, are an extremely effective tool for employers to reduce exposure on employment claims. So, naturally, the current National Labor Relations Board (NLRB) will not support them. Having lost before the Fifth Circuit Court of Appeals on their argument that Section 7 and Section 8 of the National Labor Relations Act (NLRA) categorically prohibit explicit class action waivers, the NLRB remains undeterred. Here is what the NLRB is up to now.
Continue Reading The National Labor Relations Board Continues Its Hostility Toward Class Action Waivers in Arbitration Agreements

Yesterday, February 5, 2014, the NLRB officially announced the reissuance of its controversial proposed election rule changes that were first proposed in 2011 and promptly dubbed by employer groups as the “quickie election” and “ambush election” rules. In a statement issued by Board Chairman Mark Pearce, the NLRB yesterday stated:  “Unnecessary delay and inefficiencies hurt

The National Labor Relations Board (NLRB) announced yesterday it will make no further efforts to revive a workplace posting rule that it had originally proposed in the fall of 2011. The rule required all union and non-union workplaces to post a detailed notice concerning worker rights, including the right to join unions, and the right to act together for mutual support. The rule was challenged immediately in two federal court lawsuits. The two Federal Courts of Appeal that heard the cases both held that the rule exceeded the NLRB’s proper authority and invalidated the rule.
Continue Reading NLRB Posting Rule is Dead

One of the most significant risks to business in recent years has been the proliferation of class action employment-related lawsuits. Class action claims have been especially popular with plaintiff’s lawyers pursuing federal Fair Labor Standards Act wage claims. A class action lawsuit can mean huge costs for defense and damages. Some employers have attempted to manage the risk by having employees sign agreements requiring that they pursue employment law claims against the company in arbitration, rather than in court. Sometimes employers include in the arbitration agreement a specific waiver of the right to pursue class action claims in court or in arbitration.
Continue Reading Fifth Circuit Court of Appeals Knocks Down NLRB Decision: And, in Doing So, Supports Employer Effort to Avoid Class Action Claims

Last month, the Sixth Circuit in Kindred Nursing Centers East, LLC v. NLRB enforced the National Labor Relations Board’s 2011 Specialty Healthcare II decision in which the Board adopted a controversial test opening the door for unions to organize “micro” bargaining units of employees despite employer evidence that additional employees share a community of interest with those employees and therefore should be added to the unit.
Continue Reading Sixth Circuit’s Enforcement of Specialty Healthcare Standard Opens Door Wider For Union Organizing Efforts

The National Labor Relations Board Office of the General Counsel released an Advice Memorandum in Tasker Healthcare Group, d/b/a Skinsmart Dermatology ("Tasker") Case 04-CA-094222 on May 16, 2013 and concluded that an employee was not engaged in protected concerted activity when she posted comments to a Facebook group message that taunted her employer to "

It has been almost a year since there was news to report about the NLRB proposed rule requiring employers to post notices about union organizing rights. As you might recall, the NLRB issued the rule in the fall of 2011 and it caused immediate controversy. Many in the business community considered the posting an unwarranted

The National Labor Relations Board (NLRB) has issued its third Facebook firing decision. In Design Technology Group LLC dba Bettie Page Clothing (Case No. 20-CA-035511, 359 NLRB No. 96), the Board found that the employer, a clothing store, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by discharging three employees for engaging

Back in August, we alerted you to an NLRB decision in Banner Health System dba Banner Estrella Medical Center and James A. Navarro, Case No. 28-CA-023438, in which the Board held that an employer’s blanket rule requiring employees to maintain the confidentiality of pending internal company investigations violated the employees’ Section 7 right to