Wyatt Employment Law Report


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Emanuel Fills Last NLRB Seat

By Edwin S. Hopson

On September 26, 2017, William J. Emanuel, a Republican,  was sworn in as a Member of the National Labor Relations Board.  Emanuel’s term will end August 27, 2021. The Senate had confirmed his nomination by a vote of 49-47 after Democrats filibustered his appointment.

Prior to his appointment, Emanuel was a shareholder with Littler Mendelson, P.C., a law firm representing management in labor and employment matters.  He had also practiced labor law with several other firms.

With this new Member, the NLRB is once again at full strength – three Republicans and two Democrats.


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Senate Confirms Republican Member to NLRB

By Edwin S. Hopson

On August 2, 2017, just prior to the August recess, the U.S. Senate confirmed the nomination of Marvin Kaplan by a vote of 50 to 48 to be a Member of the National Labor Relations Board.  The Senate, however, did not vote on a second Trump nominee to the Board, William Emanuel.  The vote on the second nominee is expected in September.  With Kaplan’s confirmation, the five member Board now consists of two Republicans, two Democrats and one vacancy.  Thus, it is unlikely that there will be any more ground-breaking new precedent in favor of unions for some time to come.  It has been nine years since the Republicans had a majority of Board Members.

The term of the Democrat General Counsel to the Board expires in early November of this year.  He will be replaced by a Republican yet to be named.


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United States Supreme Court to Resolve Class Action Waiver Issue

By Michelle D. Wyrick

In a matter of great interest to many employers, last week, the United States Supreme Court agreed to decide whether arbitration agreements that prohibit employees from pursuing class and collective remedies are enforceable. Courts are currently divided on the issue. The Supreme Court granted certiorari in three cases, Epic Sys. Corp. v. Lewis, from the Seventh Circuit, Ernst & Young LLP v. Morris, from the Ninth Circuit, and NLRB v. Murphy Oil, USA, from the Fifth Circuit, to resolve the question.

The dispute pits the savings clause of the Federal Arbitration Act (“FAA”), 9 U.S.C. §2, which allows invalidation of arbitration agreements only “upon such grounds as exist at law or in equity for the revocation of any contract” against employees’ rights to engage in protected, concerted activity under the National Labor Relations Act, 29 U.S.C. §157. The National Labor Relations Board (“NLRB”) takes the position that provisions in arbitration agreements requiring employees to waive their rights to pursue class or collective actions violate employees’ rights to engage in protected, concerted activity under the National Labor Relations Act (“NLRA”). In May 2016, the Seventh Circuit agreed and Continue reading


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New NLRB Election Statistics Reveal Union Weakness

By George J. Miller

It has been one year since the National Labor Relations Board’s so-called “ambush” or “quickie” election rule went into effect. According to the Board, the rule was “designed to remove unnecessary barriers to the fair and expeditious resolution of representation cases” and “streamline” the process.  In simpler terms, it was intended to speed up the process, something which organized labor and its supporters wanted so that employers would have less time to campaign before the election or, in the jaundiced view of organized labor, less time to intimidate voters.  Organized labor contended that the old process favored employers and was unfair, and that the new rule was needed to “level the playing field.”

Last week, the NLRB released data about the effects of the new rule.  As expected, the process is much faster.  In cases in which unions filed the election petition, the median number of days between the date of the filing of the election petition and the date of the election fell from 38 days in the preceding year (April 2014 to April 2015) to 24 days in the past year (April 2015 to April 2016).  This is a 37% reduction.  In cases in which the unions and employers entered into Continue reading


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McDonald’s Loses Another Round at the NLRB

By George J. Miller

McDonald'sWebsiteOn March 17th, the National Labor Relations Board (NLRB) issued another decision unfavorable to McDonald’s USA and certain McDonald’s franchisees. This was the Board’s fifth decision in this massive case, in which the unions and the Board’s General Counsel are trying to prove that McDonald’s and its franchisees are a joint employer of the franchisees’ employees, and McDonald’s is therefore responsible for any unfair labor practices of its franchisees. In the latest development, a two member majority of a three member NLRB panel agreed with an administrative law judge’s decision to severely limit the scope of documents which McDonald’s could subpoena from the unions and other non-party organizations which had assisted the unions in their efforts against McDonald’s.

The labor unions, which are the charging parties, are the Service Employees International Union (SEIU), Fast Food Workers Committee, Pennsylvania Workers Organizing Committee (a project of the Fast Food Workers Committee), Workers Organizing Committee of Chicago, Los Angeles Organizing Committee, and Western Workers Organizing Committee.

The non-party organizations which received McDonald’s subpoenas are: Mintz Group, LLC, and LR Hodges & Associates, Ltd., both private investigative firms hired by the SEIU’s law firm; Berlin Rosen, Ltd., a firm specializing in public affairs and strategic communications; and New York Communities for Change, Inc., a nonprofit advocacy organization which Continue reading


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NLRB’s Browning-Ferris Industries Decision to be Reviewed by Federal Court of Appeals

By George J. Miller

iStock_000008223650_FullIn the past two weeks there have been some important developments in the ongoing case against Browning-Ferris Industries of California (“BFI”).  Recall that in August 2015, the National Labor Relations Board issued a decision in a union election case filed by Teamsters Local 350 against BFI and its labor contractor, Lead Point Business Services.  The Teamsters sought to represent a unit of employees in certain job classifications at a BFI recycling facility in California who were all supplied by Lead Point.  The Teamsters’ election petition sought a decision that BFI and Lead Point jointly employed these employees, but the NLRB Regional Director rejected the Union’s position, finding that under NLRB precedent at that time, BFI and Lead Point were not a joint employer.  The Regional Director directed an election which was held on April 25, 2014.  However, the employees’ ballots were impounded while the Teamsters sought and obtained review of the Regional Director’s decision by the NLRB.

In its August 2015 decision on review, a three member majority of the five member Board overruled the Board precedent relied upon by the Regional Director and found that BFI and Lead Point were a joint employer of these employees.  Although Lead Point hired and paid the wages and benefits of the employees, the Board concluded that BFI jointly employed them because it had significant Continue reading


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NLRB Rejects McDonald’s Procedural Motions

By George J. Miller

Earlier this month, the National Labor Relations Board issued two decisions rejecting procedural motions filed by McDonald’s, USA in the pending unfair labor practice cases filed against it and certain McDonald’s franchisees.  As background, in December 2014 the NLRB’s General Counsel issued 13 complaints involving 78 unfair labor practice charges filed against McDonald’s and its franchisees in 13 NLRB regional offices across the country.  The complaints allege various kinds of unfair labor practices against employees seeking to organize unions at McDonald’s restaurants (e.g., discrimination, discharges, surveillance, interrogation, threats).  Significantly, as has been well publicized, in addition to the substantive unfair labor practice allegations, the General Counsel is alleging that McDonald’s and its franchisees are a single employer and that, therefore, McDonald’s is jointly liable for any unfair labor practices committed by its franchisees.

Complaints from six NLRB regions (New York, Philadelphia, Chicago, Indianapolis, San Francisco and Los Angeles) were consolidated for a trial that started in March 2015 in New York, then was scheduled to move to Chicago and finish in Los Angeles.  An NLRB Administrative Law Judge was assigned to preside over the case and hear the evidence.  In March 2015, over McDonald’s objection, the judge issued a pre-trial order ruling that Continue reading