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Executive Labor Summary - August / September 2015

Quickie elections seem here to stay, but Senate Republicans aren’t giving up

NLRB's Office of the General Counsel Addresses Employee Handbook Policies

Following the National Labor Relations Board’s (the “NLRB’s”) recent increased focus on employment policies and employees’ rights under Section 7 of the National Labor Relations Act (the “NLRA”), the NLRB’s Office of the General Counsel (the “OGC”) on March 18, 2015 released a report addressing recent case developments relating to employee handbook rules as guidance for employers when creating or updating their handbooks and policies. Section 7 of the NLRA applies to both unionized and non-unionized employees, and it protects employees’ rights to engage in protected concerted activities, including those in which employees seek mutual aid or protection; seek to initiate, induce or prepare for group action; bring group complaints to management’s attention regarding the terms and conditions of their employment; or address workplace issues that are of concern to employees.

Complaint Issued by NLRB’s Acting General Counsel was Unauthorized, Federal Appeals Court Rules

Vacating a Board order adopting an Administrative Law Judge’s decision holding that an employer violated Sections 8(a)(1) and (5) of the National Labor Relations Act by ceasing to pay longevity pay under a collective bargaining agreement between the employer and the union representing its employees, the U.S. Court of Appeals for the D.C. Circuit has held that Acting General Counsel Lafe Solomon could not have lawfully delegated authority to an NLRB Regional Director to issue the underlying unfair labor practice complaint against Southwest Ambulance because Mr. Solomon, at the time, was not lawfully appointed as the Board’s Acting General Counsel. SW General, Inc. v. National Labor Relations Board, No. 14-1107, 2015 U.S. App. LEXIS 13812 (D.C. Cir. Aug. 7, 2015).

NLRB Dismisses Northwestern Football Players' Organizing Petition

A unanimous decision on Monday by the National Labor Relations Board (NLRB) ended the Northwestern University scholarship football players’ bid to unionize — without addressing the key issue that has plagued collegiate athletics for so many years: whether college athletes are employees and entitled to the rights as such under federal law.

NLRB’s Unanimous Decision Is Major Victory for College Sports

Yesterday, in a highly anticipated decision, the National Labor Relations Board (the Board) declined to exercise jurisdiction over the College Athletes Players Association’s (CAPA) representation petition. CAPA asked the Board to find that scholarship football players at Northwestern University are employees within the meaning of Section 2(3) of the National Labor Relations Act (the Act), thereby opening the door to unionization. Although the Board chose not to determine whether grant-in-aid scholarship football players at Northwestern are “employees” under the Act—even noting that the question does not have an “obvious answer”—the Board found that asserting jurisdiction in the case would not promote the purposes of the Act.

The NLRB Refuses to Require its General Counsel to Explain the Joint Employer Case Against McDonald's

The National Labor Relations Board continues the string of controversial moves in its unfair labor practice cases against McDonald’s. In December 2014, the NLRB’s General Counsel filed thirteen complaints naming the franchisor, McDonald’s USA, as a joint employer for alleged unfair labor practices of various local franchisees. On August 14, 2015, the Board issued a decision affirming an Administrative Law Judge’s decision denying McDonald’s USA, LLC’s motion for a bill of particulars.1 A bill of particulars would have required the General Counsel to specify the particular facts and law that support its theory of joint employer liability.

NLRB Rebuffs Northwestern Football Players' Unionization Bid

In a case that sparked nationwide debate, the National Labor Relations Board (NLRB) has declined jurisdiction and, therefore, dismissed an attempt by Northwestern University football players to unionize. The players claimed they are university employees and should be allowed to form a union and collectively bargain.

NLRB Declines to Exercise Jurisdiction Over Student-Athletes’ Attempt to Unionize – For Now

Concluding that its assertion of jurisdiction “would not serve to promote stability in labor relations,” the National Labor Relations Board has declined to exercise authority over the College Athletes Players Association’s (CAPA’s) petition to represent scholarship football players at Northwestern University. Northwestern University, 362 NLRB No. 167 (Aug. 17, 2015). Without deciding if the players meet the statutory definition of “employee” under the National Labor Relations Act, the unanimous Board stated “it would not effectuate the policies of the Act to assert jurisdiction” here. However, the Board expressly left open the possibility it would assert jurisdiction “in another case involving grant-in-aid scholarship players (or other types of scholarship athletes).”

NLRB Sacks College Football Player Union Organizing Drive

Earlier today, the National Labor Relations Board (NLRB) unanimously decided that college football players at Northwestern University cannot comprise an appropriate bargaining unit, squelching their attempt to form the first-ever union comprised of collegiate athletes. The decision by the five-member panel puts to bed this organizing effort – for now.

NLRB Administrative Law Judge Rules that Employer Unlawfully Discharged Employee Who Warned Co-Worker of Looming Discharge

Recently, an Administrative Law Judge (ALJ) with the National Labor Relations Board found that an employer violated the National Labor Relations Act (NLRA) when it discharged an employee for informing a co-worker that the co-worker’s job was in jeopardy.