President Obama to Abandon Recess Appointees to the NLRB

The drama surrounding President Barack Obama’s recess appointments to the National Labor Relations Board (“NLRB”) took an unexpected twist this week as the President announced his intention to nominate three new members.

As we have reported, earlier this year the D.C. Circuit in Canning v. NLRB struck down President Obama’s January 2012 appointment of three members, holding that the President improperly exercised his recess appointments power while Congress was still in session. The ruling has called into question hundreds of decisions rendered when the recess appointees constituted a majority of the board. The Obama Administration has vowed to appeal that ruling to the U.S. Supreme Court. More ›

Citing "Legal Uncertainty" Caused by Recess Appointments, House GOP Members Introduce Bill to Halt All NLRB Activity

On March 13, 2013, GOP members of the House Education and the Workforce Committee introduced a bill intended to put a halt to all actions by the National Labor Relations Board pending resolution of the confusion caused by a recent D.C. Circuit ruling that found President Obama's "recess appointment" of two of the three current NLRB members unconstitutional. Citing the "legal uncertainty" facing employers in the wake of the D.C. Circuit's decision in Noel Canning v. NLRB, the bill, titled the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120), would restrict the Board's authority to take any action until one of three events occurs: the U.S. Supreme Court rules on the constitutionality of the President's "recess appointments", a Board quorum is constitutionally confirmed, or the terms of the two "recess appointments" expire. More ›

Employers may Violate Federal Law by Refusing to hire Union Organizers

Here’s a challenging scenario for employers: An individual applies for a job. The employer becomes aware that the applicant is a union volunteer who will likely try to organize the workplace if hired.

Can the employer refuse to hire the applicant without violating federal labor laws?

The answer depends on whether the applicant can demonstrate a “genuine interest in employment” apart from, or in addition to, his or her union activities. As demonstrated in a recent case, this may be an easy standard for union organizers to meet. More ›

NLRB will ask Supreme Court to Affirm Board Members

The National Labor Relations Board (“NLRB”) announced today that it would ask the U.S. Supreme Court to review a federal court ruling that invalidated the appointment of three members and put hundreds of mostly pro-union board actions in jeopardy. More ›

Employers may not Engage in Coercive Surveillance of Unions

An employer risks violating federal labor laws by monitoring employees’ union activities, or even creating an impression of surveillance.

Whether an employer’s union monitoring is considered coercive, and therefore illegal, depends on several factors, including the duration of the observation, the employer’s distance from employees while observing them and whether the employer engaged in other coercive behavior during the observation. See Aladdin Gaming LLC, 345 NLRB 585, 586 (2005).

A National Labor Relations Board (NLRB) judge held that an employer had violated the prohibition against coercive surveillance in the recent case Allied Medical Transport, Inc. and Transport Workers Union of America, AFL-CIO. Allied Medical Transport, Inc. (“AMT”) provides transportation services to disabled Florida residents who are unable to use public transportation. More ›

Senator Introduces Bill to Freeze NLRB Decisions

Hundreds of National Labor Relations Board (“NLRB”) actions, many of which make it easier for workers to unionize, would be frozen or invalidated under legislation proposed this week by Sen. John Barrasso (R-Wy).

The so-called “NLRB Freeze Act of 2013” is a response to a recent D.C. Circuit ruling that President Barack Obama violated the Constitution when he appointed three NLRB members in January of 2012. More ›

NLRB Recess Appointments are Invalid

The National Labor Relations Board (NLRB) is comprised of five members appointed by the President, with the advice and consent of the Senate. Traditionally, Presidents have appointed three members from their own political party and two members from the opposition party. The Constitution authorizes the President to make “recess” appointments when the Senate is not in session. More ›

Federal Appeals Court Strikes down President Obama’s NLRB Appointments

In a decision that could have an enormous impact on employers, a federal appeals court has ruled that President Barrack Obama violated the Constitution when he appointed three members to the National Labor Relations Board (“NLRB”) without Senate approval.

The unanimous ruling from the three-member panel of the Court of Appeals for the District of Columbia Circuit could invalidate hundreds of NLRB regulations and decisions issued since January 4, 2012. President Obama is expected to appeal the ruling to the Supreme Court. More ›

NLRB Permits Unions to Charge dues Objectors for Lobbying Expenses, and Seeks Further Briefing on “Germaneness” Standard

A former Union member filed an unfair labor practice charge alleging that the Union, which represents hospital employees, violated the National Labor Relations Act by its treatment of the former Union member and other employees who resigned their Union memberships and objected to paying dues that were unrelated to collective bargaining, contract administration, or grievance adjustment. More ›

NLRB Requires Employer to turn over Witness Statement

Under Anheuser Busch (237 NLRB 982, (1978)), employers were not required to turn over witness statements to the Union where such statements were obtained during the course of an employer's disciplinary investigation because such statements were confidential. Recently, however, the NLRB found that a witness statement was not entitled to such protections, nor did it constitute attorney work product, and required the employer to produce the disputed statement.   More ›