Pension Plan Withdrawal Liability Calculation Violates ERISA, Court Holds in Milestone Decision

The use of the “Segal Blend” to calculate a company’s withdrawal liability when it withdrew from a multiemployer pension plan violated the Employee Retirement Income Security Act, as amended by the Multiemployer Pension Plan Amendments Act, because it was not the actuary’s best estimate, the federal appeals court in Cincinnati has held in a milestone... Continue Reading
October 8, 2021

NLRB General Counsel Instructs Regions to Seek Enhanced Penalties NOW

As we discussed in our recent report on National Labor Relations Board General Counsel (“GC”) Jennifer Abruzzo’s August 12th agenda for the direction of NLRB case law, employers should be ready for an aggressive expansion of remedies that the NLRB will seek. In the short time since the GC’s memorandum was published, NLRB Chairman McFerran... Continue Reading
September 10, 2021

Third Time the Charm? NLRB to Revisit Rights of Contractor Employee Access to Employer Property

The National Labor Relations Board (NLRB) must reconsider its newest ruling on the rights of certain employees to access private property to engage in activity on behalf of a union, the U.S. Court of Appeals for the District of Columbia has directed in an August 31, 2021, decision remanding NLRB v. Local 23, American Federation... Continue Reading
September 10, 2021

Recent Senate Confirmations Cement Democrat Control of NLRB

The Senate confirmed two union lawyers – David Prouty and Gwynne Wilcox – to seats on the National Labor Relations Board (NLRB) on July 28, 2021, ensuring a Democratic majority for the first time in almost four years. This follows the Senate’s confirmation of Jennifer A. Abruzzo, President Joe Biden’s nominee for General Counsel of... Continue Reading
August 2, 2021

NLRB Refuses to Deflate ‘Scabby the Rat’

A union’s use of Scabby the Rat (an inflatable rat “approximately 12 feet in height with red eyes, fangs, and claws”) and inflammatory banners targeting a neutral employer, without more, does not violate the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has ruled. Lippert Components Inc., 371 NLRB No. 8 (July... Continue Reading
July 27, 2021

NLRB Regional Director Expands Unit by Thousands of Voters, But ‘Micro Units’ Held at Bay, For Now

The National Labor Relations Board (NLRB) dismissed a union’s push to organize a micro unit of 87 employees at a Nissan assembly plant in Tennessee based on the traditional community-of-interest standards for determining whether a unit is appropriate. Nissan North America, Inc., 10-RC-273024 (June 11, 2021). The International Association of Machinists and Aerospace Workers (UAW)... Continue Reading
June 25, 2021

D.C. Circuit Flips NLRB; Employer’s Alleged ‘Baseless’ Statements of Opinion Lawful

“Absent threats or promises, § 8(c) [of the National Labor Relations Act] unambiguously protects ‘any views, argument or opinion’ – even those that the agency finds misguided, flimsy, or daft,” the D.C. Circuit has held. Trinity Services Group, Inc. v. NLRB, No. 20-1014 (D.C. Cir. June 1, 2021) The Court was asked to “decide whether... Continue Reading
June 14, 2021

NLRB Finds I-9 Compliance Can Be Subject to Mandatory Bargaining

Complying with statutory workplace requirements does not necessarily excuse an employer from its bargaining obligations. A panel of the National Labor Relations Board (NLRB) upheld an Administrative Law Judge’s (ALJ) finding that an employer violated the National Labor Relations Act (NLRA) when it refused to bargain over the effects of requiring  employees to submit new... Continue Reading
June 11, 2021

Biden Nominates Union-Side Attorney for Fifth NLRB Seat

President Joe Biden has nominated Gwynne Wilcox, a partner in a New York law firm specializing in employee rights, to the National Labor Relations Board (NLRB). Three of the five members of the NLRB are traditionally members of the president’s party. At present, there are four members seated, three of whom are Republican because of... Continue Reading
May 27, 2021

Labor Board Orders Business to Reopen; D.C. Circuit Says Not So Fast

The NLRB has the authority to order an employer to reopen a business it finds was closed for discriminatorily anti-union reasons. In RAV Truck & Trailer Repairs, Inc., 369 NLRB No. 36 (Mar. 3, 2020), the NLRB did just that. However, upon review, the D.C. Circuit held that it “cannot decipher how the Board determined... Continue Reading
May 26, 2021