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14 Mar 2013 NLRB Bypasses DC Circuit Rehearing and Intends to Proceed to Supreme Court

The National Labor Relations Board has announced that it will forgo an en banc rehearing of the D.C. Circuit Court of Appeals’ decision in Noel Canning v. NLRB which held that President Obama’s recess appointments of Terence Flynn, Richard Griffin and Sharon Block were unconstitutional.  Instead, the NLRB will file a petition for certiorari with the U.S. Supreme Court which is due on April 25, 2013.  Obviously there will be more to come on this story. For…

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12 Mar 2013 NLRB Lightens Grip on At-Will Language

Two recent advice memoranda from the NLRB’s Division of Advice suggest that the NLRB may be loosening its grip on “at-will” language and acknowledgments in employer handbooks.  After sending the employer community into a bit of a tizzy during mid-2012 with rulings that common at-will language violated the NLRA, these recent memoranda seem to take a less doctrinaire approach. In two memoranda released by Associate General Counsel Barry J. Kearney, Kearney advised Regions 21 and…

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01 Mar 2013 Cease and Desist?

The United States Court of Appeals for the District of Columbia recently ordered the National Labor Relations Board (NLRB) to respond to a petition by the National Right to Work Legal Defense Foundation asking that the Board suspend further action in a pending case. The request was made in light of the D.C. Circuit’s earlier ruling that two of the three current NLRB members were appointed unconstitutionally. The Washington Examiner’s article can be found by clicking on the link below. The Washington Examiner…

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28 Feb 2013 AFL-CIO Demands Fully Staffed NLRB

The AFL-CIO Executive Council, which covers nearly 60 affiliated unions, issued a policy statement Feb. 26, 2013 demanding President Obama and the Senate act immediately to bring the NLRB to full strength.  As we have reported here, in its recent Noel Canning decision, the D.C. Circuit invalidated the President’s January 2012 recess appointments to the NLRB. The Council called the decision “radical,” “unprecedented” and “sweeping in its potential reach.” The policy statement also says, “This is an…

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22 Feb 2013 Noel Canning Delays Review of “Ambush” Election Rules

Citing Noel Canning, the D.C. Circuit issued an order this week holding in abeyance an NLRB appeal regarding its “ambush” election rules.  The D.C. federal district court found last year that the ambush election rules were invalid because Board member Brian Hayes did not participate in the decision.  The NLRB appealed to the D.C. Circuit and oral argument had been scheduled for April.  The employer’s representatives now have argued that even if Hayes had participated…

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21 Feb 2013 NLRB General Counsel Issues Guidance on Calculating Backpay under <i>Latino Express</i>

A new memorandum from NLRB Acting General Counsel Lafe Solomon released this week provides additional guidance for calculating backpay awards under the new standard set by the Board in Latino Express, Inc., 359 NLRB No. 44 (2012), decided in December 2012.  Latino Express changed the way backpay awards are calculated, with the Board finding that in most cases where backpay is awarded as a remedy, losing employers not only have to pay the backpay and…

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18 Feb 2013 New Hampshire Right to Work? Not So Fast

On Feb. 13, 2013, the New Hampshire House of Representatives voted down the latest right-to-work bill and thwarted yet another attempt to join the latest RTW states (Indiana and Michigan). This is the third time that this type of legislation had been defeated in the previous three years (prior two attempts were vetoed by the former Governor) in New Hampshire. It appears that the RTW in that state is losing momentum. Elsewhere, as previously covered earlier this week…

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14 Feb 2013 If At First You Don’t Succeed: Obama Renominates Recess Appointments

Sharon Block and Richard G. Griffin gained notoriety as two of the three recess appointments to the NLRB back in January, 2012. These appointments drew the ire of Republican legislators because they bypassed the normal Senate confirmation process and became the target of legal challenges as we have covered extensively. This controversy culminated in the D.C. Circuit’s January 25, 2013 decision in Noel Canning v. NLRB which held that the appointments were invalid under the U.S. Constitution. Undeterred,…

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12 Feb 2013 Unions File Suit Challenging Michigan’s Right to Work Law

A group of Michigan labor unions filed a lawsuit yesterday challenging the constitutionality of Michigan’s recently enacted Right to Work legislation. The lawsuit, filed in the U.S. District Court for the Eastern District of Michigan, challenges only the legislation affecting private employers, claiming that it violates the Supremacy Clause of the federal Constitution because private employers are regulated by federal labor law, not state law. The complaint asks for a declaratory judgment finding the Right…

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11 Feb 2013 7th Circuit Decision Underscores Threat of Individual Liability in Withdrawal Liability Cases

The Seventh Circuit in its recent decision in Central States Southeast and Southwest Area Pension Fund v. Messina Products LLC reversed a District Court decision that two individual owners of a defunct trucking company had no personal liability for a $3.1 million in withdrawal liability to the Central States Fund. The District Court had determined that the individual owners were not “trades or businesses” under 29 U.S.C. 1301(b)(1) and therefore could not be liable as the “employer” when…

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