Tag Archives: NLRB

Trump Taps Management-Side Lawyer to Serve as NLRB General Counsel

On September 15, the White House announced that President Trump will nominate Peter B. Robb, a longtime labor and employment attorney, to become the National Labor Relation Board’s next general counsel. In his role as general counsel, Robb would become the “prosecuting” arm of the NLRB and have the ability to help shape the Board’s overall agenda… Continue Reading

U.S. Senate Confirms Marvin Kaplan to Serve on the National Labor Relations Board

n August 3, 2017, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission attorney, to fill one of the two vacant seats on the National Labor Relations Board. Kaplan’s confirmation moves the Board one step closer to a Republican majority. Kaplan was confirmed on a 50-48 party-line vote by the Republican-controlled Senate.… Continue Reading

President Trump Nominates Marvin E. Kaplan for National Labor Relations Board Position

President Trump nominated attorney Marvin Kaplan to fill one of two vacancies on the National Labor Relations Board on June 19, 2017. Kaplan currently works on the Occupational Safety and Health Review Commission and previously served as Republican counsel to the House Education and Workforce Committee which, among other things, provides oversight of the NLRB. … Continue Reading

Profane or Offensive Rants – Can Employees Be Fired For This Conduct?

Two recent rulings have labor law observers questioning where the line is in disciplining employees for making offensive or obscene comments toward their employer. Seemingly at odds are a recent Second Circuit ruling finding such behavior is protected activity under the NLRA and a recent NLRB ruling finding the use of profanity towards management is not protected.… Continue Reading

ALJ Says Company’s Neutral Reference and Press Inquiry Policies Violate NLRA

[From Hunton’s Retail Blog] If you are a retailer, you may have policies and procedures in place regarding who can speak on behalf of your company. Such policies may generally instruct employees not to speak to the press as a representative of the company, and to direct all media inquiries to a particular person or department. Similarly, if you are a retailer, you may have a policy in place that instructs employees to forward any reference requests to your human resources department. These commonplace policies allow retailers to control their public image and protect employee privacy, among other benefits. … Continue Reading

4th Circuit Joint Employer Test Is Incredibly Broad

Much has been written about the National Labor Relations Board’s controversial Browning-Ferris decision that significantly expanded the scope of joint employer liability under the National Labor Relations Act. But virtually no attention has been given to the Fourth Circuit’s recent panel decision in Salinas v. Commercial Interiors, Inc., which creates an altogether new and incredibly broad joint employment standard under the Fair Labor Standards Act that makes the NLRB’s Browning-Ferris joint employment standard seem temperate at best.… Continue Reading

Supreme Court Will Rule On Legality of Class Action Waivers in Employer Arbitration Agreements

The United States Supreme Court has granted consolidated review of three cases to determine whether arbitration agreements that waive employees’ rights to participate in a class action lawsuit against their employer are unlawful. The Court’s decision to address the uncertainty surrounding class action waivers of employment claims follows a circuit split last year in which the Fifth and Eighth circuits upheld such waivers and the Seventh and Ninth circuits found that such waivers violate the National Labor Relations Act. Given the increasingly widespread use of class action waivers by employers to stem costly class and collective actions, the high court’s ruling is likely to have a significant nationwide impact.… Continue Reading

What Employers Need to Know About “A Day Without A Woman”

What is the goal of tomorrow's “A Day Without A Woman”? According to organizers, “[t]he goal is to highlight the economic power and significance that women have in the US and global economies, while calling attention to the economic injustices women and gender nonconforming people continue to face.” Organizers are looking to end workplace discrimination and urge employers to adopt benefits such as paid family leave, sick days, adequate healthcare, fair pay, vacation time, and healthy work environments.… Continue Reading

Returning Balance To The NLRB

The National Labor Relations Board has an 80-plus year history of administering federal labor law and regulating labor-management relations in the United States. Since the board is made up of political appointees — five members who decide cases and a General Counsel who sets the board’s enforcement agenda — its interpretation of the National Labor Relations Act can vary depending on which political party holds the majority.… Continue Reading

Is Joint-Employer Risk Still A Problem For The Hotel Industry?

On March 9, 2017, a federal appeals court in Washington, DC will hear argument in a challenge to the National Labor Relations Board’s controversial standard, announced in August 2015, for finding two businesses to be joint employers, and thus responsible for each other’s legal liabilities on the labor front.  The labor community is keeping a … Continue Reading

Briefing Continues in Browning-Ferris Appeal

In a brief filed on September 7, 2016, the National Labor Relations Board urged the United States Court of Appeals for the District of Columbia Circuit to uphold its new “joint employer” standard, set forth in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015). Through this new standard, the Board now seeks to impose collective bargaining and other NLRA obligations on companies that may indirectly control certain conditions of employment, or that merely reserve (but do not exercise) such control. … Continue Reading

NLRB Takes Another Step Towards Joint Employer Abyss

Earlier this week, the NLRB issued yet another troubling decision in the joint employer space, a world the Board already turned upside-down last summer with its landmark Browning Ferris ruling. In Miller Anderson, the Board overturned Bush-era precedent and held that a union seeking to represent employees in bargaining units that combine both solely and jointly employed employees is no longer required to obtain the consent of the employers, provided the proposed bargaining unit is appropriate under “traditional” Board precedent. … Continue Reading

New Video Series: What You Need To Know in 5 Mins or Less – Episode 1: Kurt Larkin on NLRB Rule

We are excited to introduce a new video series, Things You Need To Know in 5 Mins or Less. Each episode will feature a discussion of the legal and business challenges facing the real estate industry, and will include lawyers from a variety of disciplines throughout the firm. In the first episode of this new video series Carl Schwartz, co-chair of the firm’s global real estate practice, sits down with labor and employment partner Kurt Larkin to discuss the National Labor Relations Board “joint employer” rule: how it has changed and what it means for the real estate industry. … Continue Reading

Business Groups and Others Support Browning-Ferris’s Appeal of the NLRB’s New “Joint Employer” Standard

A concerned business community has closely followed the NLRB’s shifting views on the concept of “joint employers” - separate companies that are deemed to be so interconnected that they should be treated as one for purposes of labor relations activity and unfair labor practice liability. In August of last year, the NLRB decision in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015), put into place a broad new test that dramatically expands the definition of “joint employer.” Now, an entity will be found to be a joint employer if it exercises only indirect control over the employment terms and conditions of another company’s employees. Indeed, joint employer status can be established if a company simply possesses, but never exercises, the ability to control such terms.… Continue Reading

Viewpoint: The Importance of Dissent at the NLRB

Sitting as the lone dissenter on the National Labor Relations Board (NLRB) might seem like a futile exercise. Grinding away on opinions that are critiques of the law as stated by your colleagues can be disenchanting work. But as a former NLRB member, I can attest that dissents are also valuable tools for future board members and the courts. Indeed, one of my proudest moments as a lawyer came when a court of appeals reversed the board “for the reasons stated by Member Meisburg.”… Continue Reading

D.C. Circuit Refuses to Rubber Stamp NLRB Finding

In Dover Energy, Inc., Blackmer Division v. National Labor Relations Board, the Board held that Blackmer violated section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it threatened Tom Kaanta, a Blackmer employee and United Auto Workers Union shop steward, with disciplinary action if he continued to make “frivolous” information requests to the company’s lead negotiator during collective bargaining agreement (“CBA”) negotiations. On March 23, 2016, the U.S. Court of Appeals for the D. C. Circuit reversed and held that the NLRB’s factual findings were not supported by substantial evidence.… Continue Reading
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