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Recent Blog Posts

  • As we have previously reported, Unions currently face a serious existential threat as the unionized workforce in America continuously declines and the looming threat of a National Right to Work law steadily grows.  Recognizing that when employees have a choice, they are losing the battle for the hearts and minds, Unions have not taken these deleterious developments lying down and have deployed numerous countermeasures designed to increase their dues paying membership, including unprecedented forays into previously untouched industries and membership... More
  • In what may be a harbinger of good things to come, the NLRB recently reversed an Administrative Law Judge’s (“ALJ”) finding that Macy’s, Inc.’s confidentiality policies unlawfully interfered with employees’ Section 7 rights.  Unlike many employer policy decisions issued by the Board in recent years, this case does not break new ground or saddle employers with new, unrealistic onuses.  It merely reinforces well-established rules regarding the use of sensitive customer information obtained from an employer’s records and actually reaffirms the right of... More
  • In Midwest Division-MMC, LLC, d/b/a/ Menorah Medical Center v. NLRB, the D.C. Circuit rejected the Board’s unprecedented application of Weingarten rights to voluntary meetings, by reversing the Board’s Decision that would have extended the right of employees to have union representation at meetings at which the employees’ attendance is not compelled. Kansas state law requires hospitals to establish an internal mechanism to monitor the standard of care provided by nursing professionals.  Pursuant to this law, Menorah Medical Center (“Menorah” or “Hospital”) established a... More
  • On Wednesday, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission lawyer, to fill one of the two open seats on the National Labor Relations Board, moving the agency a step closer to a Republican majority. Kaplan was confirmed on a 50-48 party-line vote by the GOP-controlled Senate. The Senate has yet to schedule a vote for President Trump’s second nominee for the Board, William Emanuel, a long time management-side labor and employment lawyer. The Senate... More
  • On Tuesday night, the President announced the nomination of William Emanuel, a long time management-side labor employment lawyer, to fill the last remaining vacancy on the five-member National Labor Relations Board. As we noted in our earlier blog, last week the President announced the nomination of Marvin Kaplan, who currently serves as counsel at the Occupational Safety and Health Commission, to fill the other vacancy on the NLRB. If the nominations of Messrs. Emanuel and Kaplan are confirmed by the Senate, which... More
  • The President earlier this week announced the nomination of Marvin Kaplan, who currently serves as counsel at the Occupational Safety and Health Commission, to serve as a Member of the National Labor Relations Board. Mr. Kaplan is a Republican and once confirmed, his taking a seat on the Board will be an important step in the move towards a more employer-friendly Republican majority that can be expected to reconsider many of the decisions of the Democratic majority Obama Board.... More
  • According to news reports, the Trump administration has submitted Marvin Kaplan and William Emanuel for FBI background checks, and it plans to nominate them by June to fill a pair of vacancies at the National Labor Relations Board (“NLRB”). The administration hopes to have the new members confirmed by the Senate before the August recess. Kaplan is currently counsel to the commissioner of the independent Occupational Safety and Health Review Commission. He previously served as the Republican workforce policy counsel for the... More
  • As we recently reported, Dish Network, LLC unwittingly fell into the trap of a stipulated record, which proved fatal to its defense of a confidentiality admonishment issued to a suspended employee. The stipulated record in Dish Network, LLC did not set forth any business justifications for the confidentiality admonishment – an indispensable element in proving the lawfulness of such orders. Dish Network endeavored to cure this deficiency in its post-hearing brief, but the Board rejected its belated effort, in part,... More
  • In NLRB v. Pier Sixty, LLC, the Second Circuit held that an employee’s expletive-laden Facebook post – which hurled vulgar attacks at his manager, his manager’s mother and his family – did not result in the employee losing the protection of the National Labor Relations Act (“Act”).  But even though the Second Circuit conferred protected status on this unquestionably obscene post, it did not create a protected right to level profane verbal assaults on management when discussing union business.  Such... More
  • In recent years, the Obama Board has adopted some extreme views on Section 7 rights, which has pushed its jurisdiction into uncharted territories and left non-unionized employers vulnerable to attack. Two of the most notable examples are (1) Murphy Oil U.S.A., Inc. and D.R. Horton, Inc., in which the Board invalidated arbitration agreements with class action waivers and effectively ignored a mountain of legal precedent to the contrary, including the Supreme Court’s repeated affirmations of such agreements and the Board’s... More