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07 Jun 2017 Congressional Leaders Ask Trump to Fill Long-Standing Vacancies at the NLRB

  Two vacancies remain on the National Labor Relations Board (NLRB) and many in the business community are anxiously awaiting President Trump’s expected appointment of pro-management members to the agency. On May 30, members of the House Committee on Education and the Workforce sent the president a letter asking that he move “expeditiously” to fill the vacancies. In that letter, Reps. Virginia Foxx (R-N.C.), committee chair, and Tim Walberg (R-Mich.) further noted that the NLRB…

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05 Jun 2017 ‘Smile, You’re On Candid Camera’ – Federal Court Upholds NLRB Ruling That Prohibits Non-Union Employers From Banning Recordings in the Workplace

  Many employers maintain policies prohibiting surreptitious recordings in the workplace. As noted on the blog last year, however, the National Labor Relations Board (NLRB) struck down such a policy in Whole Foods Market, Inc., 363 NLRB No. 87 (2015). In that case, the NLRB held that an employer’s prohibition on the use of recording devices in the workplace to record conversations, events, etc., without company authorization was unlawful under the National Labor Relations Act…

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31 May 2017 A Growing Divide: Sixth Circuit Decision To Invalidate Class/Collective Action Waiver Widens Appellate Court Split

  On May 26, the U.S. Court of Appeals for the Sixth Circuit sided with the National Labor Relations Board (NLRB) in finding that an employer unlawfully included a “class action waiver” within a mandatory arbitration program applicable to its employees. In NLRB v. Alternative Entertainment, Inc., the Sixth Circuit specifically found that the company’s arbitration pact barring employees from pursuing class-action litigation or collective arbitration of work-related claims violated Section 7 of the National Labor…

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26 May 2017 Senator Introduces Bill To Amend NLRA And Reverse Micro-Unit Trend

  It’s been a busy few weeks on the micro-unit front. As just reported on the blog, Chairman Philip Miscimarra recently signaled he would like to overturn the National Labor Relations Board’s decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), that gave rise to a wave of micro-units in recent years. Following on the heels is news out of the Senate on May 24 that some members of Congress also…

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25 May 2017 Getting Away With Murder? NLRB Tells Federal Court Union Election Observer’s Use Of Fake Firearm Did NOT Invalidate Union Election Results

  The National Labor Relations Board (NLRB) often sets aside union election results where an employer has prevailed when the agency finds “objectionable conduct” occurred. This has been done in cases where, for example, an employer’s handbook contained an overbroad confidentiality policy; supervisors have made “promises” to employees with respect to how they may be treated if they vote to keep a union out; or when a company has given an otherwise lawful “captive audience…

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24 May 2017 It Could Be. It Might Be. IT IS! DOL’s Persuader Rule To Be GONE!

  Media outlets are reporting that the Department of Labor (DOL) officially is moving to drop its “persuader rule” that would have imposed significant reporting requirements on companies and consultants related to union-avoidance efforts.   On May 22, the DOL formally proposed to revoke the controversial rule. The rule has been tied up in litigation for months, and a challenge currently is pending in the Fifth Circuit Court of Appeals. The DOL’s move to rescind the…

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22 May 2017 End In Sight For The Micro-Unit Nightmare Spawned By NLRB’s Specialty Healthcare Decision? Maybe…

  There appears to be light at the end of the micro-unit tunnel. Anyone following National Labor Relations Board (NLRB) developments knows that few decisions have had as much impact on U.S. labor law as the agency’s decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011). Now, NLRB Chairman Philip Miscimarra just offered hope, saying that the Specialty Healthcare decision may have been off-base. That decision paved the way for a…

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18 May 2017 Another Overreach? NLRB Finds Company Violated the NLRA by Retaliating Against Former Employee for Filing FLSA (Not NLRA) Class Action

  From scrutiny of class action waivers to invalidating non-union employer handbooks, we’ve seen the National Labor Relations Board (NLRB) over the past eight years incrementally expand and encroach into areas companies never expected. This means companies have had to deal in totally different ways with the agency traditionally known for governing management-union relations.   On May 16, the NLRB broke new ground yet again in its decision in MEI-GSR Holdings, LLC, 365 NLRB No….

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15 May 2017 The Saga Continues: NLRB’s Browning-Ferris Decision On Joint Employment Still Drawing Attention – This Time From Congress

  Since the National Labor Relations Board (NLRB) issued its now infamous Browning-Ferris decision in August 2015 that significantly altered its standard for evaluating “joint employment,” businesses – particularly those utilizing franchise models – have been concerned and confused about how broadly that standard is to be applied.  In Browning-Ferris,  the NLRB stated that it will no longer require that a company actually exercise control over a workforce’s terms and conditions of employment in order…

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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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