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Richard F. VitarelliBlog Posts

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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

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

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