Labor Board Proceedings and Practice

On December 11, 2014, the National Labor Relations Board (the “NLRB” or “Board”) again departed from a long line of past precedent and overruled its 2007 decision in Register Guard, 351 NLRB 1110 (2007).  The Board in Register Guard had held that employees have no statutory right to use their employer’s email accounts for Section 7 purposes.  The Board had explained that an employer’s email system is no different than other property owned by the employer, and employers have long been afforded a basic property right to regulate and restrict employee use of their property (where the employer does not discriminate in restricting such use).  In Purple Communications, 361 NLRB No. 126 (Dec. 11, 2014), however, a new Board reversed course and held that employees may in fact have a statutory right to use their employer’s email accounts for Section 7 purposes.  This decision has significant implications for employers who should immediately review their electronic communications policies and consider revisions to ensure compliance.  Although it is likely that the decision will be appealed and possibly reversed, currently, employers may no longer prohibit employees with access to company email from engaging in communications protected by the National Labor Relations Act (“NLRA”) (absent a narrow exception).
Continue Reading NLRB Finds New Section 7 Rights to Use Employer Owned Email Systems: What It Means for Employer Policies

On December 12, the National Labor Relations Board (the “Board”) finalized a new rule amending its representation case procedures.  Employers should be aware of how the new rule will affect union organization in the workplace.  The rule is aimed at “streamlining and modernizing” union election procedures so as to “expeditiously resolv[e] questions of representation.”  The

Bass, Berry & Sims attorneys Tim Garrett and Dustin Carlton authored the article “Handling Workplace Issues in a Politically Charged Climate” that was published by InsideCounsel on December 17. Citing heightened public interest in an employer’s response to workplace harassment due to recent high profile NFL scandals, the authors remind employers about best practices related

Bass, Berry & Sims attorneys Tim Garrett and Dustin Carlton authored the article “Analyzing Recent NFL Scandals: Is Some Conduct Ever ‘Off Duty’?” that was published by InsideCounsel on December 4. In the article, the authors discuss recent allegations involving off-duty behavior of NFL players and how the league responded to the behavior. The authors

Bass, Berry & Sims attorneys Tim Garrett and Dustin Carlton authored the article “NLRB’s Expansive View: The Northwestern ‘Football’ Ruling and Why Inside Counsel Should Care,” that was published by InsideCounsel on November 13. In the article, the authors discuss how the recent NLRB decision in the Northwestern University case may indicate a broader approach

On October 28, 2014, the National Labor Relations Board (the “Board”) again held that employers violate Section 7 of the National Labor Relations Act (“NLRA”) when they require employees to sign class action waivers as a condition of their employment.  The Board first so held in D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012).  Although numerous courts have since rejected the Board’s reasoning in D.R. Horton, the Board nonetheless reaffirmed its position, meaning that employers who maintain such agreements will continue to face significant hurdles to their enforcement.

In Murphy Oil USA, Inc., 361 NLRB No. 72 (Oct. 28, 2014), the employer (“Murphy Oil”) required, as a condition of employment, that all employees sign a Binding Arbitration Agreement and Waiver of Jury Trial (the “Agreement”).  The agreement specifically provided:


Continue Reading NLRB Won’t Budge on Class Action Waivers: Finds that Murphy Oil’s Mandatory Arbitration Agreements Violate the NLRA

In a landmark decision, the United States Supreme Court ruled yesterday that President Obama’s three recess appointments to the National Labor Relations Board (NLRB) were unconstitutional.  Click here for the ruling.  President Obama had relied upon the Constitution’s Recess Appointments Clause to appoint three members of the NLRB.  The Court ruled, however, that the “pro forma” sessions in January 2012 when the recess appointments were made were not truly a “recess” of the Senate within the meaning of that provision of the Constitution.  Since the NLRB was not lawfully appointed, its decision that the employer in the case, Noel Canning, had violated the law was not a proper finding and was not enforceable against the employer.
Continue Reading Supreme Court Rules Recess Appointments Unconstitutional – What Does It Mean?

The Labor Department announced today its plans to propose new regulations on the definition of “spouse” under the FMLA.  The new definition of “spouse” will include a legally married same-sex spouse, regardless of the employee’s state of residence.  This rule, though not unexpected, is a change from an August 2013 “Fact Sheet” issued by the

Readers of our series of posts on D.R. Horton will recall our prediction that the National Labor Relations Board (NLRB or the Board) would continue its attacks on certain arbitration agreements.  As predicted, the NLRB’s administrative law judges (ALJ) continue to strike down any arbitration agreements that waive class or collective action claims and allow arbitration of only individual claims.  The ALJs consistently find that such agreements violate employees’ Section 7 rights to engage in protected concerted activity.
Continue Reading Delay in Supreme Court Review of D.R. Horton Continues to Cost Employers Enforcing Arbitration Agreements

Much speculation abounds regarding why workers at the Volkswagen (VW) plant in Chattanooga rejected the United Auto Workers’ (UAW) in a recent vote.  Factors appeared to be aligning in favor of the UAW, such as

  • Statements of support for the union from VW representatives in Germany.
  • Access to the plant for union organizers.
  • Promise of a “works council” type approach to unionization.


Continue Reading VW Aftermath – Factors Still Favor Non-Union South