Jonathan J. SpitzBlog Posts

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  • 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
  • President Biden Moved Quickly to Re-Direct NLRB in First 100 Days

    President Joe Biden was sworn into office on January 20, 2021. In just the first 100 days, the Biden Administration has begun its return to more labor-friendly policies, rules, and decisions, similar to those issued under the Obama Administration. For example, on Day 1, immediately upon taking office, President Biden demanded that Trump-appointed National Labor... Continue Reading
    May 24, 2021
  • NLRB Finds Aggressive Bargaining Proposals Not Unlawful

    An Administrative Law Judge’s (ALJ) findings that an employer engaged in bad faith bargaining and unlawfully withdrew recognition from the union has been overruled 2-1 by a panel of the National Labor Relations Board (NLRB). District Hospital Partners, L.P. d/b/a The George Washington University Hosp., 370 NLRB No. 118 (Apr. 30, 2021). While the Board’s... Continue Reading
    May 17, 2021
  • Labor Board Withdraws Proposed Rule Excluding Student Workers from NLRA Coverage

    In an interesting turn foreshadowing a coming change in its leadership, the National Labor Relations Board (NLRB) has withdrawn the rule it proposed in September 2019 to exclude student workers at private colleges and universities from coverage under the National Labor Relations Act (NLRA). The proposed rule would have excluded students whose studies included working as teaching... Continue Reading
    March 15, 2021
  • Acting NLRB General Counsel Rescinds Policy Guidance, Signals More Changes to Come

    New National Labor Relations Board (NLRB or Board) Acting General Counsel Peter Sung Ohr has wasted no time. In a February 1, 2021, Memorandum, Ohr announced rescission of 10 individual policy directives issued by Peter Robb. President Joe Biden terminated Robb as NLRB General Counsel shortly after his inauguration. Why this is important? NLRB General... Continue Reading
    February 3, 2021
  • Labor Board Provides Guidance on Propriety of Mail or Manual Ballot Elections

    The National Labor Relations Board (NLRB) has established standards for its regional directors to weigh in on whether a representation election in which COVID-19 is a concern should be conducted by mail ballot or in-person (manual) ballot. Aspirus Keweenaw, 370 NLRB No. 45 (2020). Chairman John F. Ring and Members Marvin E. Kaplan and William... Continue Reading
    November 10, 2020
  • Labor Board Asks for Briefing on ‘Scabby the Rat’

    The National Labor Relations Board (NLRB) has asked for the parties and amici to submit briefs answering four questions in a case involving a union’s display of a large inflatable rat, commonly called “Scabby the Rat,” and two large banners on public property near the entrance of a neutral employer’s site. International Union of Operating... Continue Reading
    November 6, 2020