New NLRB General Counsel Fires Shot Across The Bow

By Patrick Scully NLRB General Counsel Peter B. Robb has made a first and lasting impression with his initial Memorandum describing Mandatory Submissions to Advice.  General Counsel Robb announced his intent to review, through the Division of Advice, new cases involving issues that the Obama-appointed NLRB regularly prosecuted as unfair labor practices.  Among other matters, […]

The NLRB Reinstates Liar

By Patrick Scully In its seemingly unending quest to reverse long-settled employer defenses, the National Labor Relations Board (“NLRB” or “Board”) has instructed an Administrative Law Judge to reconsider his decision denying reinstatement to an employee fired for dishonesty. The employee had been improperly denied a Weingarten representative in an investigatory interview. However, the employee […]

The NLRB Reissues “Ambush” Election Rules

By Patrick Scully On February 5, 2014, the National Labor Relations Board (“NLRB”), acting this time with a full quorum, reissued its highly controversial 2011 changes to representation election rules. The proposed changes are the same as those the NLRB presented in 2011. The rule changes would: radically speed the pace of representation elections, eliminate […]

NLRB Standing (read “Expanding”) Ground on D.R. Horton

By Lori Phillips In the controversial 2012 decision D.R. Horton, Inc., the NLRB held that mandatory arbitration agreements requiring all employment disputes to be resolved through individual (as opposed to class) arbitration violate NLRA § 8(a)(1).  That statute forbids an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”  The D.R. […]

Has the NLRB Created a New Defense?

By Patrick Scully In court to get an injunction, the National Labor Relations Board faced the now-familiar argument that it lacked a quorum when the petition was authorized. See Noel Canning v. NLRB, 705 F.3d 490 (DC Cir. 2013), petition for cert. granted NLRB v. Noel Canning, et al., 12-1281 (June 24, 2013). To avoid […]

Third Circuit Deals NLRB Another Blow

By Mike Grubbs Another federal circuit court has struck down one of President Obama’s recess appointments to the National Labor Relations Board. In N.L.R.B. v. New Vista Nursing and Rehabilitation, the Third Circuit Court of Appeals held that the recess appointment of Craig Becker in March 2010 was invalid because the Senate was not actually […]

The NLRB’s Swaying Tides

By: Karla E. Sanchez The mates on a tug boat may “demand obedience” and charge an insubordinate deckhand with mutiny, but this doesn’t make the mates supervisors, according to the National Labor Relations Board (“Board”). Brusco Tug and Barge, Inc., 359 NLRB No. 43 (December 14, 2012).  In this case, the Board determined that mates […]

D.C. Circuit Finds NLRB Recess Appointments Unconstitutional

The Court of Appeals for Washington D.C. ruled today that the President’s “recess” appointment of three members of the National Labor Relations Board was unconstitutional. Although the Senate was not holding sessions, it was not in “The Recess” either and therefore the President could not make a “recess” appointment. What happens now to all the […]

Class Waiver Enforced, Despite NLRB

By Emily Keimig Despite the NLRB’s stated hostility toward class action waivers between employers and employees, the courts continue to support arbitration agreements that include class action waivers.  In a recent case, the plaintiff sued Bristol Care on behalf of herself and other co-workers, for alleged violations of the Fair Labor Standards Act (“FLSA”) because, […]