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NLRB Upholds Petitioned-For “Micro-Unit” at Boston-Area Macy's Store as Appropriate Under Specialty Healthcare

Earlier this week, in a 3-1 decision in Macy's Inc., the NLRB applied its controversial Specialty Healthcare decision in upholding as appropriate a bargaining unit that consists of 41 employees in the cosmetics and fragrances department at a Boston-area Macy’s store, and excludes all other sales employees at the store. This is the first case in which the NLRB has applied the Specialty Healthcare standard to a retail employer. The NLRB’s decision in this highly publicized case is unwelcome news for employers, particularly in the retail industry, as it provides support for unions' increasing efforts in seeking to organize "micro-units" consisting of small, discrete subsets of employees.

Five Recent NLRB Cases Provide Further Insight on Structuring Employers' Social Media Policies

Employers, struggling to regulate employees’ work-related social media postings, recently suffered a string of defeats in National Labor Relations Board (NLRB) cases challenging their social media and related communications policies. The six cases, decided in the past two months, which resulted in five losses1 and only one victory for employers,2 demonstrate that the NLRB continues to use social media and other common communications policies as a vehicle to aggressively inject itself into the non-union workplace as the number of unionized workers continues to diminish. These cases also highlight the need for all employers to scrutinize their social media policies in an effort to determine whether employees reasonably would read them to prohibit discussion about the terms and conditions of employment for the mutual aid and benefit of the workforce, the applicable standard under Section 7 of the National Labor Relations Act (NLRA or “the Act”) for protected concerted activity.

Board Aggressively Seeking Injunctions Against Employers

Not surprisingly, the top attorney for the National Labor Relations Board (“Board”) appointed last November, Richard Griffin, recently declared the Board’s commitment to making it easier to take employers into federal court and temporarily stop alleged unfair labor practices.

Employee Termination Pursuant to an Unlawful Confidentiality Rule is Lawful, NLRB Holds

In Flex Frac Logistics, LLC, 358 NLRB No. 127 (2012), the National Labor Relations Board (in a decision later upheld by a federal appeals court in New Orleans) held the employer’s confidentiality policy was unlawfully overbroad, and, as a result, could inhibit employees from discussing terms and conditions of employment (i.e., wages, benefits, and the like). Thus, according to the Board, the policy violated employees’ right to discuss these issues under Section 7 the National Labor Relations Act (NLRA). (See our article, Policy Restricting Employees from Discussing Wage Info with Outsiders Ruled Unlawful.)

President Obama Re-Nominates Recess Appointee Sharon Block to Fill Next NLRB Vacancy

The White House announced on Friday that it will re-nominate former Member Sharon Block to the NLRB, likely to replace Nancy Schiffer, whose appointment expires later this year. Block was one of the recess appointees to the Board that the Supreme Court held to be unconstitutional in its Noel Canning decision.

Meet the New Board — Same as the Old Board: Obama Taps Block for NLRB Return

As part of an announcement of 14 administration appointments issued by the White House on July 10, 2014, President Barack Obama announced that he was nominating pro-labor Democrat Sharon Block — currently serving as Senior Counselor in the Office of the Secretary at the Department of Labor — to a term as a member of the National Labor Relations Board (NLRB) starting on December 17, 2014. Once confirmed, Block will hold an NLRB term that does not expire until December 16, 2019, and keep the board in the control of pro-labor Democrats until member Kent Y. Hirozawa’s term expires on August 27, 2016.

President Obama Re-Nominates Recess Appointee to the NLRB

Two weeks after the U.S. Supreme Court held in Noel Canning that the three January 4, 2012 recess appointments to the National Labor Relations Board were invalid, the President has re-nominated one of these recess appointees to the Board. On July 10, President Obama announced his intent to nominate Sharon Block to once again be a member of the Board. Block, along with Richard Griffin and Terence Flynn, was seated on the Board while the Senate was still holding brief pro forma sessions every three days. The Court in Noel Canning determined that these sessions did not constitute a recess for appointment purposes.

Supreme Court Invalidates Union Fee Requirements Imposed on Homecare Employees

On June 30, 2014, the U.S. Supreme Court rejected Illinois law that required homecare providers for Medicaid recipients to pay fees to a union. In Harris v. Quinn, the Court held that compulsory union agency fees imposed on Illinois homecare workers violated the First Amendment. The Court, however, did not issue a more expansive ruling that would have overruled Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) and affected public-sector unionization and agency fees as a whole. While the Court's decision was narrow, it has widespread implications for the home healthcare industry as many other states allow homecare workers to unionize under statutory arrangements similar to those in Illinois, including California, Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Oregon, Vermont and Washington.

Health Care Alert: Supreme Court Limits Agency Fees to Full-Fledged Public Employees

Executive Summary: In a decision that could have a significant financial impact on many labor unions, the U.S. Supreme Court has held that personal care providers, who are considered state employees only for limited collective bargaining purposes under Illinois law, cannot be required to pay agency fees. In Harris v. Quinn (June 30, 2014), the Court refused to apply its 1977 decision in Abood v. Detroit Board of Education, which upheld the imposition of agency fees on non-union state employees, to these individuals because they are not "full-fledged" public employees. The Court further held that the agency fee provision violates the personal care providers' First Amendment rights, and that they cannot be compelled "to subsidize speech on matters of public concern by a union that they do not wish to join or support."

NLRB General Counsel Outlines Priorities, Provides Noel Canning Update During Webinar

National Labor Relations Board General Counsel Richard Griffin discussed various steps the Board is taking in light of the Noel Canning decision, as well as his office’s priorities during a July 9 webinar sponsored by the American Bar Association.