Wyatt Employment Law Report


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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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Trump’s Recent NLRB Picks (if Confirmed) Projected to Overturn Controversial Obama-Era Rulings

By Sharon L. Gold

On Tuesday, June 27, 2017, President Trump picked William Emanuel, 75, to fill one of the two vacancies on the National Labor Relations Board.  The NLRB is currently controlled by Democrats, with a 2-1 majority.  When there are no vacancies, the Board is filled with three members from the President’s party and two from the opposing party.

Emanuel was an employment lawyer at an employer-friendly law firm in Los Angeles.  He has represented trade groups and employers before the NLRB for many years.

Trump has also nominated Republican Marvin Kaplan for Continue reading


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U.S. Supreme Court Finds that Lafe Solomon’s Service as Acting NLRB General Counsel Violated the FVRA

By Courtney Samford

On March 21, 2017, the U.S. Supreme Court finally resolved the issue of Lafe Solomon’s role as Acting General Counsel of the NLRB in National Labor Relations Board v. SW General, Inc.  In an opinion authored by Chief Justice Roberts, the Supreme Court held that Solomon’s position as Acting General Counsel violated The Federal Vacancies Reform Act of 1998 (“FVRA”) once he was nominated by then President Obama for the permanent position.  Generally, Article II of the U.S. Constitution requires the President to obtain Senate approval to appoint “Officers of the United States,” but the FVRA allows the President to appoint a limited class of individuals to serve as acting officers on a temporary basis until a replacement can be confirmed by the Senate.  Pursuant to the FVRA, certain individuals who are nominated for a permanent position may not serve as an acting officer.

In June 2010, a vacancy arose in the general counsel position for the NLRB.  Then President Obama appointed Solomon to serve as Acting General Counsel on a temporary basis, and several months later, nominated him to serve as the General Counsel.  Solomon’s temporary position did not require Senate confirmation, but the permanent position did.  However, the Senate refused to act on Solomon’s nomination, and Obama was forced to 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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Eleventh Circuit Reverses NLRB & Finds Stagehands Are Independent Contractors

By Michael D. Hornback

Like me, I am sure some of you have attended an over-the-top concert and thought “Who puts up these stages and all of these lights?”  More importantly, who are the poor souls that are relegated to taking all of this stuff down after the concert is over (which must feel like that never ending drive back to reality after a vacation at the beach)?  Have you ever been to a concert and thought, “Hey, are these stagehands employees or independent contractors?”  Yeah, me neither.  However, that was the precise question before the Eleventh Circuit Court of Appeals in the case of Crew One Productions, Inc. v. National Labor Relations Board, Case No. 15-10429.  I’ll save you the suspense, 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