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D.C. Circuit Affirms NLRB’s Order to Employer to Reimburse All of Union's Bargaining Expenses as Remedy for Unfair Labor Practices

In HTH Corporation v. NLRB, the U.S. Court of Appeals for the D.C. Circuit rejected the National Labor Relations Board’s attempt to expand the remedies under the National Labor Relations Act for unfair labor practices to include an award of litigation expenses (attorneys’ fees and costs). In Camelot Terrace, Inc. and Galesburg Terrace, Inc. v. NLRB, decided June 10, 2016, the court again rejected the Board’s award of litigation expenses, relying on its decision in HTH Corp. However, the court affirmed the Board’s order that Camelot Terrace, Inc. and Galesburg Terrace, Inc. (the Companies) reimburse the bargaining expenses incurred by the Service Employees International Union (SEIU) as an appropriate remedial measure for having engaged in bad faith bargaining with the union, addressing the question directly for the first time.

New DOL Rules Heighten Disclosure Requirements for Labor “Persuaders”

The U.S. Department of Labor (DOL) recently announced significant revisions to the “persuader” rules set forth in the Labor Management Reporting & Disclosure Act of 1959 (LMRDA). The new rules impose increased disclosure requirements for employers and any “labor relations consultants” they hire to provide direct or indirect “persuader” advice regarding unionization and other labor-related issues. While the current legal status of the rules remains in flux, employers should consider their potential disclosure responsibilities and related options.

Lubbock Judge Grants Motion to Halt Persuader Rule

On June 27, 2016, in National Federation of Independent Business et al. v. Perez, et al., the U.S. District Court for the Northern District of Texas (Lubbock Division) granted Plaintiffs’ Motion for a Preliminary Injunction, thereby enjoining the U.S. Department of Labor (DOL) from implementing and enforcing its revised persuader rule on a national basis. The Court found that Plaintiffs’ challenge to the new rule, which was set to become effective July 1, 2016, has a substantial likelihood of success on the merits and that Plaintiffs have shown that they would be irreparably harmed if the rule was not enjoined.

Texas District Court Issues Nationwide Injunction Blocking the Department of Labor’s Persuader Rule

On June 27, 2016, the District Court for the Northern District of Texas issued a nationwide injunction enjoining the Department of Labor’s (DOL) Persuader Rule, 81 Fed. Reg. 15924.1 In reaching this conclusion, the court explained, “the [Persuader Rule] is defective to its core because it entirely eliminates the LMRDA’s advice exemption.”

Court Halts Labor Department’s New Persuader Rule

The U.S. District Court for the Northern District of Texas, Lubbock Division, has issued a nationwide preliminary injunction against the U.S. Department of Labor’s “persuader” rule promulgated under the Labor-Management Reporting and Disclosure Act. National Federation of Independent Business, et al. v. Perez, Civil Action No. 5:16-cv-00066-C (N.D. Tex. June 27, 2016). Unless the ruling is overturned by the U.S. Court of Appeals for the Fifth Circuit or the U.S. Supreme Court, the new rule will not go into effect on July 1, 2016.

Federal District Court in Texas Blocks New DOL Persuader Rule

Last week, we reported that a federal district court in Minnesota determined that the new Department of Labor (DOL) persuader rule likely is unenforceable because it conflicts with the Labor Management Reporting and Disclosure Act (LMRDA). However, the court declined to enjoin the rule, and thus left open the possibility that the onerous reporting obligations under the new rule would kick in on July 1. Yesterday, a federal district court in Texas gave employers, labor consultants and labor attorneys the other half of the loaf when it not only found the new rule “defective to its core,” but also issued a nationwide injunction blocking the new rule in its entirety pending further legal proceedings.

NLRB Associate General Counsel Warns Regions About ‘Potential Literacy Issues’

The Associate General Counsel of the National Labor Relations Board has notified the NLRB’s Regional Directors, Officers-in-Charge and Resident Officers that they “should be cognizant of potential literacy issues when considering remedies” and consider requiring employers who have been found in violation of the Act to read aloud the Board’s “Notice To Employees” to assembled employees to overcome written language barriers in appropriate cases. Memorandum OM 16-21 (June 21, 2016).

Minnesota District Court Denies Request to Enjoin DOL's Persuader Rule, But Signals Rule Could Be Overturned

In a decision that sheds light on the potential viability of the Department of Labor’s (“DOL”) Persuader Rule,1 a Minnesota district court on June 22, 2016, denied a request to enjoin the rule, which the DOL intends to begin enforcing on July 1, 2016.2 However, the court expressly stated its view that the Persuader Rule conflicts with the advice exception to the Labor-Management Reporting and Disclosure Act (“LMRDA”). Therefore, the court found that the plaintiffs attacking the Persuader Rule had established a “strong likelihood of success on their claim” because of this conflict.

Federal District Court in Minnesota Finds Merit in Challenge to DOL Persuader Rule, But Denies Request to Enjoin Implementation

As we reported earlier, the new Department of Labor (DOL) “Persuader Rule” dramatically expands reporting obligations for consultants and attorneys who provide certain services to employers related to persuading employees on the subject of union organizing and collective bargaining. The new rule requires that both the employer and the consultant or attorney disclose agreements and payments made by the employer for “indirect” persuader services.

NLRB Drops 30-Year Precedent on Employers’ Right to Unilaterally Oust Unions Representing ‘Mixed-Guard’ Units

A divided National Labor Relations Board has overturned its 30-year-old rule that an employer may withdraw recognition, even without a showing of a loss of majority status, from a voluntarily-recognized union that represents both guards and non-guards (“mixed-guard union”) with respect to a unit of guards.