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04 Apr 2016 NLRB Continues To Cite Its Infamous Specialty Healthcare Decision When Affirming Funky Bargaining Units

  Nearly 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 healthcare bargaining units). For those unfamiliar with micro-units, when filing an election petition with the…

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21 Mar 2016 Summary Data Released by NLRB Confirms Its “Ambush Election Rules” Truncate Time Between Petition, Election

  As of Jan. 14, the National Labor Relation Board’s (NLRB) infamous “ambush election rules” had been in effect for three quarters. The NLRB recently conducted a review and analysis of union election data during those quarters and published its findings. The report offers data related to the new rules from April 14, 2015, through Jan. 14, 2016, and compares that data against petitions and elections that occurred under the prior rules from April 14, 2014,…

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23 Feb 2016 NLRB Exploring Possible Expansion To Its ‘Make-Whole Remedies’ In Discharge Cases

  On Feb. 19, the NLRB announced that it was seeking briefs in an action where the scope of a “make-whole” remedy potentially is in dispute. Specifically, the NLRB will be evaluating whether to alter its existing rules related to offsetting an unlawfully discharged employee’s interim work search expenses against the amount of interim earnings deducted from backpay calculations. Currently, the NLRB only allows discharged employees who are actually successful in obtaining subsequent employment to receive any type of reimbursement credit for these expenses. Now, the NLRB’s general…

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05 Feb 2016 County Right-to-Work Laws in Kentucky Struck Down By Federal District Court

  As previously reported on the blog, last year several counties in Kentucky passed Right-to-Work ordinances that prohibited companies and unions within their borders from requiring union dues as a condition of employment. We also noted that the laws were being challenged in Kentucky federal court by the UAW and several other unions. The unions, who were supported by the NLRB, argued that the Section 14(b) NLRA preempts “counties” from enacting Right-to-Work laws, as Section…

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26 Jan 2016 NLRB’s New Joint-Employer Standard To Be Put To The Test In Federal Court

  As previously reported by the blog and widely throughout mainstream media, last year the NLRB significantly altered its standard for evaluating whether staffing companies and their customers constitute as “joint-employers” under the NLRA. Under the NLRB’s old test for finding “joint-employer status,” the NLRB found such status “where two separate entities share or codetermine those matters governing the essential terms and conditions of employment.” TLI, Inc., 271 N.L.R.B. 798, 798 (1984).  Additionally, “there must…

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05 Jan 2016 Another One Bites the Dust: NLRB Invalidates Another Widely-Used Personnel Policy

  Over the last few years, employers have seen the National Labor Relations Board (NLRB) strike down social media policies, email policies, workplace disruption policies and various other “work rules” that are common in workplaces across the country. On Dec. 24, the NLRB struck down yet another one. In Whole Foods Market, Inc., 363 NLRB No. 87 (2015), the Board held that an employer’s prohibition on the use of recording devices in the workplace to…

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28 Dec 2015 It Looks Like the Supreme Court will Disapprove of the NLRB’s Continued Attack On Class Action Waivers…But When Will We Know For Sure?

Earlier this month in DIRECTV, Inc. v. Imburgia, the U.S. Supreme Court cited its own precedent and concluded that courts must enforce waiver provisions in arbitration agreements that prohibit the formation of class actions – even if “the law of your state” otherwise dictates that these provisions should be invalidated. This ruling is consistent with many other decisions by the court in recent years holding that “class action waivers” are lawful. While many of these…

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01 Dec 2015 Problems Persist With Teamsters’ Central State Pension Plan

  Most private sector employers do not offer defined benefit pension programs these days given the enormous costs they can impose. In addition, many pension plans currently in existence are severely underfunded, which means retirees drawing benefits – or future retirees planning to do so – may not get what they thought they would. The Teamsters’ Central State Pension Plan is one major pension fund that currently is facing financial difficulty. In fact, the U.S….

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04 Nov 2015 NLRB Issues Updated Bench Book for ALJs

The NLRB recently issued an updated “Bench Book” for its administrative law judges (ALJs) to use during NLRB administrative trials. The Bench Book is used as a reference guide by ALJs for evidentiary and procedural issues, and it includes references to NLRB precedent that may affect proceedings.  The last version of the Bench Book was issued in 2010, so the 2015 version has nearly five years of case law updates, as it has case cites…

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11 Aug 2015 More NLRB Cases May Be In Jeopardy Based On DC Circuit’s Ruling Invalidating Most Of Former GC’s Tenure

Last week, the DC Circuit Court of Appeals issued a ruling in a case that potentially calls into question many NLRB cases that were initiated by the board’s former General Counsel (GC), Lafe Solomon. The court evaluated whether Solomon’s service in the GC role violated the Federal Vacancies Reform Act (FVRA).   Solomon initially was appointed to temporarily fill the role in June 2010; was formerly nominated by President Obama to fill the position in…

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