Tag Archives: National Labor Relations Board

The NLRB–Organizing by Pop-Up Unions in Break-Out Units

By: Allen B. Roberts

I wrote the February 2013 version of Take 5 Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green. In it, I discuss an alternative view of five topics that are likely to impact employers in 2013 and beyond. One topic involved the potential for labor organizing by pop-up unions in break-out units.

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Are your social media policies unlawful? The NLRB’s latest ruling

In line with its recent and ever-expanding interpretation of the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has once again found an employer’s social media and confidentiality policies unlawful.  DirecTV maintained a social media policy that prohibited employees from blogging or posting messages on social media that disclose non-public company information. DirecTV also maintained a confidentiality policy that prohibited employees from discussing details about their job and the company’s business, projects, customers, and employees. 

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Despite recent NLRB action, union membership continues decline

Arnstein & Lehr attorney Jesse Dill

Jesse R. Dill

Last week, the Bureau of Labor Statistics released its annual figures on the state of union membership in the United States. Union membership continued its now-typical trend of declining rolls in 2012. The percent of workers who were union members in 2012 was 11.3%, compared to 11.8% in 2011. The overall number of those belonging to a number likewise decline, from 14.8 million in 2011 to 14.4 million in 2012.

Labor law observers might be surprised by this trend considering the NLRB’s recent efforts to increase awareness of Section 7 rights and overturn long-standing precedent in favor of more union-friendly positions. However, these efforts have been counterbalanced at the state level through such developments as Wisconsin’s Act 10 legislation. Many of the developments with the NLRB may also be considered long-term focused, such as the recent WKYC-TV, Inc. decision. In WKYC-TV, Inc., the NLRB held that an employer may no longer unilaterally terminate dues-checkoff following the expiration of a collective bargaining agreement. In the short-term, this decision means employers lose a valuable economic weapon in bargaining; but there are also long-term consequences. In time, Union coffers will increase beyond what they otherwise would have grown, and unions will be able to focus more time and attention on organizational activities.

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Labor and Employment Alert: Unprecedented ruling could limit presidential power to make recess appointments

The Federal Appeals Court for the D.C. Circuit (in Noel Canning v. NLRB No. 12-1115) decided on January 25, 2013 that President Obama’s recess appointments from January 4, 2012 were unconstitutional. The appointments included three members of the NLRB, including Sharon Block, Terence F. Flynn and Richard F. Griffin. The specific holding was that no “recess” existed on January 4, 2012, making the Recess Appointment Clause inapplicable. Because of the profound constitutional issues presented, and conflicting opinions from other Appeals courts, this case is likely bound for the U.S. Supreme Court. In the meantime, some legal and practical observations are in order. 

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NLRB Recess Appointments “Invalid From Their Inception” and “Void” for Lack of Constitutional Authority Rules the D.C. Circuit

by: Adam C. Abrahms, Kara M. MacielEvan J. Spelfogel and Steven M. Swirsky

In a time when employers do not receive much good news out of Washington D.C., the U.S. Court of Appeals for the D.C. Circuit may have given some very welcome relief to employers facing issues before the National Labor Relations Board (“NLRB” or “the Board”) in light of recent precedent reversing NLRB decisions.  Quoting from early Constitutional authority including The Federalist Papers and Marbury v. Madison, the D.C. Circuit ruled today that President Obama’s “Recess Appointments” of three new NLRB members in January 2012 were unconstitutional and as a result the Board lacked any constitutional authority to act since that time.  Noel Canning v. NLRB

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Be Careful Who You Sue – You May Face an NLRA Claim That Your Employment Agreement’s Confidentiality, Non-Disclosure, and Non-Disparagement Provisions Violate the NLRA

At the firm’s October 2012 client briefing we discussed the new attitude of the National Labor Relations Board (“NLRB”) and the fact that non-unionized employers were not immune from the provisions of the National Labor Relations Act (“NLRA”). The NLRA has been increasingly applied in non-union workplaces and to handbook policies relating to areas not previously traditionally considered ripe for NLRB consideration, such as at-will employment, social media, intellectual property, confidentiality, contact with the media, and privacy policies. It may then come as little surprise that the NLRB will examine similar provisions to the extent that they are contained in private employment agreements. Most recently, in a NLRB administrative law judge’s decision, provisions contained in a mortgage banker’s employment agreement were found violative of the NLRA. The provisions at issue are fairly typical in employment agreements – confidentiality and proprietary information and non-disparagement. These are the types of provisions commonly used to protect a company’s valuable assets and its reputation.

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NLRB issues Hispanics United Facebook firing decision

Arnstein & Lehr attorney Jesse R. Dill

Jesse R. Dill

Is the NLRB following a Mayan calendar? It seems there is a flurry of activity coming from the board as we head into the calendar-year end. Included in that activity is the release of Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012). This case has been on the radar for many social media and labor law followers because it was one of the first to address a discharge from employment on the basis of social media activity.

The board decisions from earlier this year on social media were not especially instructive on the issue of how social media statements may be construed as protected concerted activity. Hispanics United is different in that it squarely addressed this question. Unfortunately, and as expected by many NLRB followers, things did not turn out well for the employer.

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Challengers of NLRB Recess Appointments May Lack Standing

A number of cases challenging President Obama’s recess appointments of three of the five members of the National Labor Relations Board (NLRB) on January 4, 2012, are currently working their way through the federal court system. Perhaps the most significant is set to be argued before the DC Circuit tomorrow. Additionally, this past Friday the U.S. Court of Appeals for the Seventh Circuit (through a panel consisting of Judges William J. Bauer, Ilana Diamond Rovner and Ann Claire Williams) heard oral argument from the parties in another NLRB recess appointment case.

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NLRB finds at-will employment clauses live to see another day

Employee HandbookEmployers can still limit the ability of employees to change their at-will status without running afoul of the NLRA

Arnstein & Lehr Chicago Partner Mark Spognardi and Milwaukee Associate Jesse Dill recently published an article, “NLRB finds at-will employment clauses live to see another day,” in the November 26 issue of Inside Counsel. In the article, they discuss the efforts of the NLRB general counsel targeting the unlawfulness of at-will language in employee handbooks.

The NLRA recently examined at-will employment language in the handbooks of to separate employers. The focus was on the clauses contained in the handbook.

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Mark A. Spognardi and Jesse R. Dill publish article for Inside Counsel on at-will employment clauses

Arnstein & Lehr Attorney Mark A. Spognardi

Mark Spognardi

Arnstein & Lehr Jesse R. Dill

Jesse Dill

Arnstein & Lehr Chicago Partner Mark A. Spognardi and Milwaukee Associate Jesse R. Dill co-authored a November 26 article for Inside Counsel, titled “NLRB finds at-will employment clauses live to see another day.” The article explains how the National Labor Relations Board has taken unprecedented steps to renew the application of the National Labor Relations Act (NLRA) to unorganized workforces. Among the issues generating concern for all employers are recent efforts to target at-will employment language in employee handbooks as unlawful under the NLRA. Mr. Spognardi and Mr. Dill write that employers can still limit the ability or means of employees to change their at-will status without running afoul of the NLRA. However, the best course may be to provide in the handbooks how such status can be changed after stating the ways in which it cannot be changed.

To read the article in full, please click here.

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