Recent Blog Posts
- NLRB Implements Changes to Case Processing – Announces Early Retirement and Voluntary Separation Programs for Professional Staff Since earlier this year, reports have circulated that National Labor Relations Board (“NLRB” or “Board”) General Counsel Peter Robb planned to introduce changes in its case handling processes and organizational structure that would move certain authority away from the Regional Directors and transfer substantive decision making authority to Washington. While the General Counsel denied the specifics, he acknowledged that as the Board was faced with a reduced case load and budgetary pressures, some changes would be necessary and appropriate. It now... More
- New York City Temporary Schedule Change Law Impact Employers with Collective Bargaining Agreements – Express Waiver and “Comparable Benefits” Language Will Need To Be Negotiated For Contracts Covering Persons Employed In New York City The New York City Temporary Schedule Change Law (“Law”), which became effective on July 18, 2018, raises new issues that employers with union represented employees will need to address as their existing collective bargaining agreements (“CBA”) come up for renewal.
The Law allows most New York City employees up to two temporary schedule changes (or permission to take unpaid time off) per calendar year when such changes are needed due to a “personal event.” The Law also prohibits retaliation against workers... More
- DOL Rescinds 2016 Persuader Rule – Returns to Long Standing Definition of “Advice Exemption” One of the more controversial actions of the United States Department of Labor during the Obama Administration was its 2016 issuance of a Final Rule that was intended to radically rewrite the rules concerning the “Advice Exemption” to Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”). The 2016 Final Rule was hotly contested because it would have required employers and their labor law counsel to report concerning advice the lawyers provided even when the lawyers did not directly communicate with... More
- Supreme Court Holds Requiring Public Sector Employees to Pay Representation Fees Is Unconstitutional – Violates Government Employees’ First Amendment Rights In its long awaited decision in Mark Janus v. American Federation of State, County and Municipal Employees, the United States Supreme Court clearly and unequivocally held that it is a violation of public employees’ First Amendment rights to require that they pay an “agency fee” to the union that is their collective bargaining representative, to cover their “fair share” of their union representative’s bargaining and contract enforcement expenses. The Janus decision overturns the Court’s own 1977 decision in Abood v. Detroit... More
- Supreme Court Gives Employers “Epic” Win: Upholding Class Action Waivers in Arbitration Agreements and Rejecting Obama NLRB In Epic Systems Corp. v. Lewis (a companion case to NLRB v. Murphy Oil USA and Ernst & Young v. Morris), the U.S. Supreme Court finally and decisively put to rest the Obama-era NLRB’s aggressive contention that the National Labor Relations Act (NLRA) prevented class action waiver in employees arbitration agreements, finding such waivers are both protected by the Federal Arbitration Act (FAA) and not prohibited by the NLRA. In its 5-4 decision, the Court explained that the NLRB’s interpretation... More
- Senate Confirms John Ring to Restore Full Five-Member Board On Wednesday, the Senate narrowly confirmed John Ring, a management-side labor attorney from Morgan Lewis & Bockius LLP, to the National Labor Relations Board (“NLRB” or the “Board”). With this vote, Ring fills the last remaining open seat on the Board, which was previously held by former Chairman Philip Miscimarra. Ring’s term will expire on December 16, 2022. The confirmation vote of 50-48 was largely down party lines, with only two Democrats voting in favor of Ring’s confirmation. The strong... More
- NLRB Reinstates Browning-Ferris Joint-Employer Standard . . . For Now On February 26, 2018, in a unanimous decision by Chairman Marvin Kaplan and Members Mark Pearce and Lauren McFerren, the National Labor Relations Board (“NLRB” or the “Board”) reversed and vacated its December 2017 decision in Hy-Brand Industrial Contractors, Ltd. (“Hy-Brand”), which had overruled the joint-employer standard set forth in the 2015 Browning-Ferris Industries (“Browning-Ferris”) decision. The decision followed the release of a finding that a potential conflict-of-interest had tainted the Board’s 3-2 vote. What this means, at least for the... More
- The Supreme Court Holds That Federal Courts Must Interpret Collective Bargaining Agreements in Accordance with “Ordinary Contract Principles;” Rejects So-Called “Yard-Man” Inferences Resolving a split between circuits, this week the United States Supreme Court, in CNH Industrial v. Reese rejected what has come to be known as the Yard-Man standard, and reaffirmed that collective bargaining agreements must be interpreted according ordinary contract principles. Although the Supreme Court has long held ordinary cannons of contract construction apply to collective bargaining agreements, some federal courts developed a specialized set of inferences, known as the Yard-Man inferences, which allowed them to read beyond the actual contract... More
- Is the NLRB’s General Counsel Planning to “Reorganize” the Labor Board’s Regional Directors and Field Offices? Over the past several weeks there have been conflicting reports concerning what The New York Times described as “a proposal” by Peter Robb, who was sworn in as the National Labor Relations Board’s (“NLRB” or the “Board”) General Counsel on November 17, 2017, to “demote” the Board’s Regional Directors and career “senior civil servants who resolve most labor cases,” and transfer their decision making authority to “a small cadre of officials installed above them in the National Labor Relations Board’s hierarchy,” apparently answerable... More
- President to Nominate Management Labor Lawyer John Ring to NLRB The White House has announced that John Ring, co-chair of the Labor & Employment Law practice at a management side law firm, is the President’s choice for the vacancy on the National Labor Relations Board created last month when Board Chairman Phillip Miscimarra completed his term on December 16, 2017. Mr. Ring’s nomination to the Board is subject to Senate confirmation. No date has been set for hearings on the nomination.
The Board is Now Split 2-2
Since Mr. Miscimarra’s departure... More