Nothing could be more indicative that ‘change is in the air’, than the decision this week by the Department of Justice to change sides in the legal wrangle over Murphy Oil v NLRB, a 6 year old case on the validity of employment contracts that require a waiver of employee class action rights. Under the Obama administration, DOJ supported the NLRB position that the provisions violated federal labor law. Now, under the Trump administration, the DOJ supports the Murphy Oil position that they do not! While these changes continue, we will also continue to looks to the courts to rein in the runaway agency. As a case in point, the 7th Circuit Court of Appeals this week ruled in Hanson Cold Storage v NLRB against the NLRB for having certified a union election at an Indiana company after counting two questionable ballots as “yes” votes in order to grant unionization. In its decision, the court remanded the case to the NLRB and ruled one of the questionable ballots as “indiscernible” and the other cast by someone on leave for seven months and therefore, not a vote-eligible employee for purposes of the representation election.
