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17 Apr 2017 NLRB Invalidates Another Employer Arbitration Agreement – But NOT Under D.R. Horton

  On April 13, the National Labor Relations Board (NLRB) invalidated yet another employer arbitration program. This time, however, the NLRB did not do so under its infamous D.R. Horton case. In Dish Network, LLC, the NLRB struck down an arbitration agreement an employer used with its workforce because: 1) as drafted, employees would reasonably construe it as limiting or prohibiting them from filing charges with the NLRB; and 2) a confidentiality provision within the…

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21 Mar 2017 No Vacancy: U.S. Supreme Court Invalidates Most of Former Acting NLRB GC’s Tenure

  First there was the New Process Steel case in 2010, in which the U.S. Supreme Court ruled that the National Labor Relations Board (NLRB) needed at least three lawfully-appointed members to render decisions. Then, in 2014, the Supreme Court held in its Noel Canning decision that former President Obama overstepped his “recess appointment authority” by appointing three members to the NLRB when congress was not in “recess.” Now, we have the Southwest Ambulance case.  …

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27 Jan 2017 Major Changes on the Horizon for the NLRB? Trump Names Philip Miscimarra Acting Chair of Agency

  President Trump took his first official action with respect to the National Labor Relations Board (NLRB) on Jan. 24, when he named current NLRB member Philip Miscimarra as acting chair of the agency. Miscimarra has served on the NLRB since 2013 and currently is the lone Republican (i.e., pro-employer) member.   The other two members, Mark Gaston Pearce and Lauren McFerran, are Democrat members and tend be viewed as “pro-union.” Miscimarra replaces Pearce as…

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24 Jan 2017 Court Of Appeals Reverses NLRB, Finds Hospital’s Nonunion Hiring Preference Policy Is Lawful

  On Jan. 20, the First Circuit Court of Appeals vacated a National Labor Relations Board (NLRB) decision that found a hospital’s hiring preference policy applicable to its nonunion employees to be unlawful. The hospital at issue had both union and nonunion sites.   At a union site, there was a collective bargaining agreement (CBA) that contained a provision giving preference to bargaining unit members for hiring or transferring into positions covered by the CBA….

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27 Dec 2016 Past Isn’t Prologue: Study Finds NLRB Nullified 4,500+ Years of Precedent Over Last Eight Years

  Anyone following labor law over the last eight years knows the National Labor Relations Board (NLRB) has been very active and made extensive changes, including overturning long-standing precedent. From altering the test used to evaluate “micro-units” to modifying the standard for finding “joint employers” and allowing college graduate assistants the right to form unions, the scope of departure from past precedent has been vast. Indeed, according to a recent study conducted by the Workplace…

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29 Nov 2016 And You Thought Trump-Clinton Was Close: Hoffa Squeaks Out Win To Remain Teamsters’ President

  It is (or was) election season and while the spotlight is (or was) focused on the Trump-Clinton and other federal and state government races, another significant election occurred this month: voting for officers of the International Brotherhood of Teamsters Union. James P. Hoffa – son of the late Jimmy Hoffa – has been the general president of the Teamsters since 1998. During his tenure, he has overseen various changes within the Teamsters, such as the union’s…

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01 Nov 2016 U.S. Chamber of Commerce Report Confirms NLRB’s Infamous Specialty Healthcare Decision Has Given Rise to More Micro-Units

  Five years ago, the National Labor Relations Board (NLRB) issued its now infamous decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, 940 (2011) that paved the way for a slew of “micro-units” being certified by the NLRB (despite the NLRB’s assurances back in 2011 that its holding in Specialty Healthcare would only apply to certain healthcare bargaining units). For those unfamiliar with micro-units, when filing an election petition with the…

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05 Oct 2016 The Hits Keep On Coming: NLRB General Counsel’s Office Seeks Potential Modifications to the Law Regarding Intermittent Strikes

  National Labor Relations Board (NLRB) case law has long held that  while “full” strikes constitute protected activity under the National Labor Relations Act (NLRA), intermittent strikes (a pattern of going out, coming back, going out again) generally are unprotected. “Unprotected” does not mean that a labor union is prohibited from engaging in the activity (i.e., they do not constitute an 8(b) violation under the Act); rather, it means employees engage in the activity at…

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07 Sep 2016 NLRB Member Kent Y. Hirozawa’s Term Expires – But He Left His Mark On U.S. Labor Law

  Kent Y. Hirozawa’s term as a National Labor Relations Board (“Board”) member expired on August 27, 2016, leaving the Board with three members (the minimum number needed for a quorum). Hirozawa originally was sworn in as an appointee of President Barack Obama on August 5, 2013. Widely viewed as a “pro-labor” Board member, he participated in numerous Board decisions / actions during his three years that pose profound implications for employers. To wit:  …

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08 Aug 2016 Employers’ Role In Decertification Efforts Continue To Receive Intense Scrutiny

  Decertification petitions are a mechanism under which employees can vote to get rid of their union in the workplace. Employers’ efforts during employees’ decertification efforts, however, always receive much scrutiny from the National Labor Relations Board (NLRB).   The NLRB generally only permits “ministerial aid” by an employer prior to the filing of a petition (e.g., an employer may be able to answer technical questions about the timing for filing such a petition in…

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