Pro-Union Attorney to Head NLRB

The U.S. Senate has confirmed union lawyer Richard Griffin to serve as general counsel for the National Labor Relations Board (“NLRB”).

The board’s general counsel is instrumental in determining when and how actively to pursue claims against employers. Mr. Griffin’s appointment, which passed on a near-party-line vote, assures that the NLRB will continue its recent aggressive enforcement and expansion of labor rules. More ›

Employer’s Right to Compel Arbitration, even Where Demand Is Delayed, Affirmed By Ninth Circuit

In Richards v. Ernst & Young, The Ninth Circuit reversed the District Court’s denial of defendant’s motion to compel arbitration of state wage and hour claims asserted by a former employee.

The District Court had determined that defendant had waived its right to arbitration by failing to assert that right as a defense. The Ninth Circuit reversed the judgment on the following grounds.

As the Court noted preliminarily, waiver of the contractual right to arbitration is not favored and, therefore, any party arguing waiver of a contractual right to arbitration bears a heavy burden. More ›

NLRB has wide Discretion to Delineate Parameters of Bargaining Unit

Despite its efforts to create a larger bargaining unit comprised of allegedly similarly-situated employees, an Alabama nursing home operator recently learned the hard way about the NLRB's "wide" discretion in determining who may be included in a bargaining unit. More ›

Despite Sovereign Status Indian Tribe Must Follow NLRA

In a decision that could have ripple effects nationwide, the National Labor Relations Board (“NLRB”) has held that federal labor protections apply to an Indian tribe’s casino operations in Oklahoma.

Workers at the Winstar World Casino, in conjunction with the Teamsters, initiated the NLRB action because the Chickasaw Nation, a federally recognize tribe, refused to follow the National Labor Relations Act (the “NLRA”). The tribe argued that the NLRA should not apply because of the tribe’s sovereign status. More ›

U.S. Supreme Court Will Rule on Obama’s Recess Appointments

The fate of hundreds of mostly pro-union federal agency rulings now rests with the U.S. Supreme Court.

The Court this week agreed to take up Noel v. Canning, the case involving President Obama’s controversial recess appointments to the National Labor Relations Board (“NLRB”). As we have reported, the D.C. Circuit in January ruled that the President violated the Constitution by appointing a board majority pursuant to his recess appointments power, even though the Senate was technically in session. More ›

Private Facebook Message not Concerted Activity Under NLRA

In this case, an employer terminated a medical office worker based upon a private Facebook message she sent to nine other current and former employees. The message contained derogatory comments about the employer but focused on one supervisor and another returning supervisor she disliked. The employee also expressed a desire to be terminated. No one copied on the message responded directly to the message content at issue. Another employee who received the message gave it to the employer. The employer terminated the author of the message on the grounds that it was obvious the employee no longer wished to work there and disliked the employer and, given these feelings, the employer was concerned about the employee’s interactions with patients.  More ›

Third Circuit: Appointment of NLRB Member During Intrasession Break not Valid

In an ongoing and continuing discussion and battle concerning President Obama’s recess appointment of Craig Becker as a member of the National Labor Relations Board back in 2010, the Third Circuit Court of Appeals has weighed in, holding that the appointment was invalid, and that the board panel which included Becker therefore lacked a valid quorum. The Third Circuit Court of Appeals considered this issue because the Board issued a bargaining order to a nursing facility, which the facility claimed was invalid due to lack of quorum.  More ›

D.C. Circuit Court Strikes down NLRB Posting Rule

The National Labor Relations Board (“Board”) had previously passed a rule that employers who were subject to its jurisdiction were required to post on their properties and websites a “Notification of Employee Rights under the National Labor Relations Act.” The posting basically advises employees of their rights to:  More ›

11th Circuit Affirms Denial of Temporary Reinstatement Sought By NLRB

In NLRB v. Hartman & Tyner, Inc., Case No. 12-14508 (11th Cir. April 16, 2013), the 11th Circuit of the U.S. Court of Appeals affirmed a trial court ruling that denied the NLRB's request to have six employees temporarily reinstated to their jobs. The Board charged the employer with discharging the employees because of their involvement in a union organizing campaign. Of interest to employers, the ruling focused on whether the temporary reinstatement of the employees, sought by the Board, qualified as "just and proper" relief under the National Labor Relations Act. 29 U.S.C. sec. 160(j).  More ›

Analysis: Controversy Surrounding Obama’s NLRB Recess Appointees

As an employer, you may be perplexed by the flap over President Obama’s recess appointments to the National Labor Relations Board (NLRB) and concerned about what it all means for business.

Your confusion is justified; the situation remains fluid and no one knows just where the dust will settle. This posting provides an overview of the current state of affairs.

The NLRB is a five-member board typically populated by three members from the president’s party and two from the opposing party. The board now has only three members, all Democrats appointed by President Obama. More ›