Recent Blog Posts
- Trump Nominee Peter Robb Confirmed as NLRB General Counsel The Senate has confirmed Peter B. Robb as the next General Counsel of the National Labor Relations Board (“NLRB” or “Board”). Mr. Robb, a management side labor lawyer perhaps best known for his representation of the FAA during the 1981 air traffic controllers’ strike, will succeed Richard Griffith, Jr., who was appointed to his four year term by President Barrack Obama in 2013.
Although Mr. Griffin’s term concluded on October 31st, and the Senate sent Mr. Robb’s confirmation to the President... More
- NLRB Acknowledges Employers’ Rights to Maintain the Confidentiality of Customer Information 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
- DC Circuit Rejects Challenge to NLRB Specialty Healthcare “Micro Bargaining Unit” Holdings The DC Circuit Court, in its August 11th decision in Rhino Northwest, LLC v NLRB has found that the NLRB’s 2011 Specialty Healthcare decision revisiting the Board’s standards for determining whether a bargaining unit a union seeks to represent is appropriate, where the employer claims in excludes other classifications of employees who share a community of interest with the petitioned for employees, is supported by the National Labor Relations Act and that the “overwhelming community of interest” standard that... More
- Senate Confirms Trump NLRB Nominee Marvin Kaplan; Delays Nomination of William Emanuel 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
- House Committee Seeks to Force the NLRB to Jettison “Indirect Control” Standard in Determining Joint Employer Status Since the National Labor Relations Board’s (“NLRB” or the “Board”) 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186, in which it adopted a new, far less stringent test for determining joint-employer status under the National Labor Relations Act (“NLRA”), employers have been left wondering whether they may be held to be a joint employer of temporary or contract workers that they retain through staffing and temporary agencies.
These concerns have been echoed by employers in other contexts as other agencies, such... More
- White House Nominates William Emanuel for the Second of Two Vacancies on the National Labor Relations Board 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
- White House Nominates Marvin Kaplan for One of Two Vacancies on the National Labor Relations Board 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
- NLRB Holds Supervisor’s Text Messages to Employee Were Unlawful Interrogations –Rejects Employer’s Argument for “Safe Harbor” On June 7, 2017, in RHCG Safety Corp. and Construction & General Building Laborers, Local 79, LIUNA, the National Labor Relations Board (“NLRB” or the “Board”) rejected an employer’s contention that “a text message cannot be found to constitute an unlawful interrogation” and found that a coercive text message, just like a coercive face-to-face meeting or a coercive phone call, could serve as evidence that the employer had unlawfully threatened or interrogated employees concerning their union support or activity in... More
- Trump to Nominate Marvin Kaplan, William Emanuel to Fill NLRB 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
- OSHA Withdraws “Fairfax Memo” – Union Representatives May No Longer Participate in Work Place Safety Walkarounds at Non-Union Facilities On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a Memorandum to the agency’s Regional Administrators notifying them of the withdrawal of its previous guidance, commonly referred to as the Fairfax Memorandum, permitting “workers at a worksite without a collective bargaining agreement” to designate “a person affiliated with a union or community organization to act on their behalf as a walkaround representative”... More