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24 Jun 2013 Supreme Court to Hear Recess Appointment Dispute

The United States Supreme Court today agreed to hear the controversy over President Obama’s recess appointments to the NLRB. The case the Court agreed to hear is NLRB v. Noel Canning. The Court is expected to hear the case in the 2013-2014 term. No additional dates have yet been set. Additional Resources Link to the Supreme Court order: NLRB v. Noel Canning (PDF) The Wall Street Journal: “Supreme Court to Consider Obama Recess Appointments“ Scott…

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21 Jun 2013 Supreme Court’s AmEx Class Action Waiver Decision Spells Trouble for NLRB

The Supreme Court yesterday overturned a Second Circuit decision that invalidated arbitration agreements American Express entered into with merchants. The Court ruled the plaintiffs must arbitrate their claims individually, rather than pursuing them court. This is the latest in a string of recent Supreme Court decisions that have supported arbitration agreements containing class action waivers. While not an employment case, the decision should offer further support to employers who choose to implement arbitration programs that include waiver of…

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17 Jun 2013 Another Loss for the NLRB on Notice Posting Rule

The Fourth Circuit has now joined the D.C. Circuit in striking down the NLRB’s proposed notice posting rules. The Board sought to have all employers post notices in their workplace informing employees of their right to form and join unions, among other things. Our previous coverage of this controversial initiative can be found here. On May 7, 2013, the D.C. Circuit struck down the same rule in a separate case, but did so on employer…

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13 Jun 2013 Think There Is Not A Reason To Stay Focused on Being Union-Free? Think Again

As all of us competing in the marketplace know, the last five to six years have been about preservation and survival. And while there are signs of improvement and recovery in some sectors, no one really thinks this economy is a sure bet yet. While the economy is down, it’s easy to just focus on survival – and ignore other issues that might be just around the corner. Maintaining a union-free status is one such…

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12 Jun 2013 Doubling Down – The NLRB Shuns <i>Noel Canning</i> Implications Again

Since it was decided in January, the D.C. Circuit’s Noel Canning decision has been easy ammunition for employers to shoot at the NLRB in response to any adverse decision. As we previously reported, the NLRB’s response has been to effectively “put their fingers their ears” and refuse to recognize the ruling of the D.C. Circuit as controlling. Most recently, the ability of the NLRB to act was challenged by the Respondent in Ampersand Publishing, LLC, 359…

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11 Jun 2013 ACLU’s Stealth Challenge to Michigan Right to Work…Could Open Meetings Act Lawsuit Sink Controversial Law?

While much of the initial fervor related to Michigan passing right to work legislation has subsided, a lawsuit that could collaterally challenge the law silently proceeds. As we previously reported, a lawsuit was filed under Michigan’s Open Meetings Act to challenge the process used by the Michigan’s Legislature to pass the controversial legislation. In January, the ACLU stepped in to litigate on behalf of the groups challenging the law. Recently, Michigan Radio’s Political Analyst Jack…

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10 Jun 2013 Red Cross Confidentiality Policies Fail to Pass Muster with the NLRB

An NLRB Administrative Law Judge has determined that the confidentiality-related policies of the American Red Cross were overbroad and could be read to chill the exercise of employee rights under the National Labor Relations Act. The ALJ’s decision in American Red Cross Blood Services, Case No. 08-CA-090132, underscores two key points: (1) handbooks, codes of conduct and independent confidentiality agreements with personnel will be read together to discern the intent behind polices and whether restrictions…

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06 Jun 2013 Associate in Small Law Firm Meets NLRA Definition of Supervisor

An associate in a small law firm in Alabama has been found by an NLRB administrative law judge to meet the statutory definition of a supervisor under the National Labor Relations Act and, as a result, her termination by the firm did not violate the Act. In reaching his decision, the ALJ effectively viewed this as a case of first impression.  As a result, the ALJ made a detailed examination of the facts relevant to…

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05 Jun 2013 The Right-to-Work Discussion Carries On in the Seventh Circuit and the Ohio Statehouse

Indiana Operators Local 150 is appealing the recent dismissal of its challenge to Indiana’s Right-to-Work law to the Seventh Circuit and asserting that the law is preempted by the National Labor Relations Act and the U.S. Constitution’s protections on free speech. The Union’s preemption argument incorporates the common “free rider” argument, specifically contending that: “The Indiana Right to Work law burdens union members and the union itself by requiring them to bear the full cost  of representing ‘free riders,’ which in turn diverts union…

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23 May 2013 Senate Committee Approves NLRB Nominees for Confirmation Vote

The Senate took a step closer to confirming five nominees to the NLRB this week when the Health, Education, Labor, and Pensions Committee (HELP) Committee voted to recommend that the full Senate confirm the nominations of Democrats (and current Board members) Mark Gaston Pearce, Richard F. Griffin, and Sharon Block and Republicans Harry I. Johnson and Philip A. Miscimarra. Two of the nominees, Richard Griffin and Sharon Block, were opposed by Republican members of the…

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