Posts Tagged ‘Employment and Labor Law’

Help Me . . . Help You

Most people probably think that “Show me the money!” is the Jerry McGuire quote that best describes lawyers. But that’s not true. The quote that best describes lawyers is “help me . . . help you.” And there are many things that a client can do to help his or her lawyer in a litigation case. Here are some simple, but effective, considerations for a win-win situation. Doing these four things will make your case more efficient, and success more probable.

1. Preserve Evidence. Your lawyer can only defend and prosecute your case with evidence. Also, the failure to preserve evidence can be used against you. Thus, Rule #1: Preserve Evidence. Start by identifying all the potential locations of evidence: Paper format; electronic devices; servers; cloud/online storage; and third party sources. These should be saved to ensure that evidence is preserved. After identifying the sources of documents, help your lawyer by culling and gathering the documents. It is also useful to specifically identify the documents that you think are most relevant to the case. Likewise, identify all potential witnesses and provide your attorney with the last known contact information.

2. Know you’re objective, and what you’re willing to settle for.  At the beginning of the lawsuit, clarify your objectives. Consider the best-case outcomes; consider the worst-case outcomes. And consider the outcomes that you want to achieve. It is also best to consider what you’re willing to concede (or spend), in order to achieve the desired outcome.

3. Understand Risks. Nothing is certain. Nothing is promised. Nothing is guaranteed. Litigation is unpredictable. At least one major fact or witness will turn out completely different than anticipated. The law can be murky, too. An analogy: Imagine that you own a 2007 Honda CRV with a book value of $10,000. Now, imagine that you park the 2007 Honda CRV on the street with a “For Sale Best Offer” sign. What type of offer might you get? Would it matter if your CRV is sold in Lancaster, or Camp Hill, or Gettysburg, or West Chester? The book value might be $10,000; but the reality is that it will be sold on a specific day, at a specific location, with a specific buyer. You might get $10,000 exactly, but probably not. Likewise, the legal books might say that your dispute should be determined one way or another. But the reality is that it will depend on the specific facts of your case, with a specific judge or jury, in a specific location. Just like the sale of the CRV – litigation is not an exact formula.

4. Understand Negotiated Settlement. To avoid unpredictability, and to achieve finality, settlements are wise. But, to get something, you need to give something.

What’s Happening Now . . .

7.5 % Increase

  • Through July 2016, spending on private construction is up 7.5%, compared to 2015.
  • Spending on public construction is up 0.2%.
  • Total construction spending is up 5.6%.
  • Residential construction spending is up 6.5%.
  • Non-residential private construction spending is up 5.1%.

Source: U.S. Census Bureau, July 2016 Construction at $1,153.2 Billion Annual Rate (Sep. 1, 2016).

This article is authored by attorney Jeffrey C. Bright and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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SCOTUS Denies DOL Deference: Will it do the same for EEOC?

On June 20, 2016, in Encino Motorcars, LLC v. Navarro, the Supreme Court decided not to defer to a US Department of Labor (DOL) rule that declared car dealerships’ service advisors eligible for overtime pay under the Fair Labor Standards Act (FLSA). Instead, in a 6-2 opinion, the Court found that the DOL did not provide a sufficient explanation as to why it departed from its long standing position that service advisors were ineligible for overtime under FLSA. The Court found the DOL’s scant rationale for its rule change impermissibly “conclusory” and sent the case back to the Ninth Circuit, leaving it to that court to determine, without deferring to the DOL rule, whether the FLSA overtime exemption covers service advisors.

As Justice Ginsburg noted in her concurring opinion, this ruling does not change the state of the law. Federal agencies have long been required to provide an “adequate reason” to justify a change in policy. However, the Court’s enforcement of that requirement serves as a potent reminder that it will not rubber stamp every new rule or interpretation an agency passes down.

The Court’s willingness to defer to an agency may very well become the central issue in the continually escalating dispute over whether Title VII and Title IX’s bar on sex discrimination includes discrimination on the basis of gender identity and sexual orientation.

While Title VII protects employees from discrimination and Title IX protects students, the laws are so similar that courts often look to rulings on one to help interpret the other. For that reason, although the highest appellate court decision on the gender identity issue, G.G. v. Gloucester County School Board, is a Title IX case, its eventual resolution may provide guidance as to the validity of the EEOC’s recent positions that discrimination on the basis of sexual orientation, which it has alleged in two recent suits, and on the basis of gender identity, a position the EEOC first enforced back in 2012, amounts to impermissible sex discrimination under Title VII.

Gloucester County School Board indirectly supports the EEOC’s positions. Applying the Auer doctrine, which instructs courts to give deference to an agency’s interpretation of its own ambiguous regulations unless the interpretation is unreasonable, the Fourth Circuit Court of Appeals determined that it owed the US Department of Education’s (DOE) interpretation of Title IX “controlling weight.” The DOE’s interpretation defined sex discrimination as inclusive of discrimination on the basis of gender identity, which contradicted the School Board’s policy of separating bathrooms by birth sex.

The School Board has announced its intention to appeal the Fourth Circuit’s decision to the Supreme Court. How the Court would rule is far from obvious: Though the Encino decision suggests the Supreme Court is not always amenable to deferring to an agency, the Court did recently pass up the opportunity to hear a case in which it could have overturned Auer. In the end, the Court may choose not to rule on an issue as decisive as the expansiveness of sex discrimination under Title VII and IX until it has regained a ninth justice. In the interim, expect the EEOC to continue enforcing its own interpretation.

For more information, contact an attorney at Harmon & Davies, P.C.

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Posted in FLSA, Labor & Employment, Sex discrimination, Sexual orientation discrimination | Comments Off on SCOTUS Denies DOL Deference: Will it do the same for EEOC?

Legal Punchlist Newsletter

Click to read our Legal Punchlist Newsletter4-30-15 Legal Punchlist Newsletter (Apr. 2015)



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Posted in Construction | No Comments »

The Color Purple: An Award Winning Film; A Scary NLRB Decision

The 1985 film The Color Purple received several awards, but, surprising to many, no Oscars. The recent NLRB Decision in Purple Communications, Inc. may be popular with organized labor, but the employer community would only give it a Razzie.

In this long-expected Decision, the National Labor Relations Board, by a 3-2 vote, reversed its 2007 Decision in Register Guard. In Purple Communications, the Board majority (comprised of the three Democrat members) established a presumption that all employees with email access have a right to use the Company’s email system for any activity protected by the National Labor Relations Act. This includes both union organizing activity and other “concerted” activity involving wages, benefits, or working conditions. Although the majority indicated that this presumption could be overcome if certain “special circumstances” were established, they failed to articulate what might constitute such special circumstances.

At a recent conference, member Harry Johnson (one of two Republican dissenters) commented upon the fact that some of his fellow Board members lacked technological savvy. In reaching their underlying conclusion that restrictions on the rights of employees to use the Company’s email system constituted an unreasonable impediment to their ability to engage in protected activity, the majority demonstrated this lack of tech savvy by failing to properly take into account the numerous alternatives which now exist, such as Facebook, Instagram, Twitter, etc.

Fortunately, the Decision is limited in that it applies only to the Company’s employees, not non-employees, it only applies to the use of the Company’s email system, not other forms of electronic communications maintained by the employer, it only applies to those employees who are already authorized to use the Company’s email system, and is subject to “reasonable” restrictions, such as being used only during “non-work times.”

Members Miscimarra and Johnson, in dissent, criticize not only the legal rationale for the Decision, but also point out the numerous issues which will be created by the presumption established by the majority. For example, they note the difficulty, if not virtual impossibility, of distinguishing between the use of email during work time and non-work time. They also point out that while the majority theoretically recognized the right – and in some cases – the need (such as when there is an allegation of harassment involving the use of email) for employers to monitor its employees’ use of email, they underestimate the risk that such monitoring could lead to unfair labor charges of surveillance.

It is important to note that this Decision applies to all employers, not only those who are unionized. It is incumbent upon every employer to review their current electronic communication policy and consider revising it so that it is in compliance with the new NLRB-established standards. Alternatively, since this Decision will likely be appealed (or reversed by a future Board), employers could wait and see what develops. It would certainly be risky, however, to discipline anyone based upon a policy that was not consistent with Purple Communications.

This article is intended to provide a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact Tom Davies, Esq. or Laura Gallagher, Esq., Harmon & Davies, P.C., at 291-2236.


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Posted in Labor & Employment, NLRB, NLRB, Social Media | Comments Off on The Color Purple: An Award Winning Film; A Scary NLRB Decision

Does your business employ “temporary workers?” According to the American Staffing Association, there are almost 3 million temporary workers in the nation’s workforce today – many doing hazardous construction or manufacturing work. Recognizing the growth in the use of temporary workers, and having received reports of injuries to such workers, the Occupational Safety and Health Administration (OSHA) has embarked on a national initiative “to protect temporary workers in order to halt the rising toll of fatal injuries.”

In April 2013, OSHA started its “Temporary Workers Initiative” (TWI) in order to help prevent work-related injuries resulting from the use of temporary employees. The stated purpose of the TWI was to highlight employers’ responsibilities to ensure these workers are protected against workplace hazards. OSHA expressed concerns that (1) temporary workers are inadequately trained to perform tasks that may present significant safety dangers and (2) temporary workers are particularly vulnerable to pressure by host employers to avoid reporting of work-related injuries. As part of its initiative, OSHA issued its Injury and Illness Recordkeeping Requirements applicable to temp workers. These state that if the “host employer” using the temporary worker maintains day-to-day control over the worker, the host employer is responsible for recording injuries. But the staffing agency should maintain “frequent communication” with the host employer to make sure that any injury is properly reported.

OSHA’s Recommended Practices for Protecting Temporary Workers

In August of this year, OSHA issued its Recommended Practices for Protecting Temporary Workers. It applies to “temporary workers” who are supplied by a staffing agency to a host company, and are referred to as “temporary” even if their period of assignment with the host is lengthy or indefinite. The “Recommended Practices” are designed to ensure that such workers receive the same level of training and protection that existing workers receive. These temporary workers are supplied to a host employer by the staffing agency. Both the staffing agency and the host employer have responsibilities to ensure that the temporary workers are properly protected. Both are considered by OSHA to be that employee’s “joint employer” for the purpose of meeting OSHA requirements. The extent of the employer’s obligations varies depending on the job done by the temp and the workplace environment. OSHA’s “recommended practices” for protecting temporary workers are the following:


  1. Worksite evaluation. Before any temporary worker starts work for a host employer, both the staffing agency and the host employer should evaluate the latter’s worksite to which a worker might be sent, the anticipated job duties and the potential hazards and training the employee will need to safely use these facilities.
  2. Training staffing agency personnel. Noting that many staffing agencies do not have “dedicated safety professionals,” OSHA recommends that temporary agency staff should be trained to recognize safety and health hazards. Agency staff should be trained regarding the equipment workers may use and how to use it safely.
  3. Review agency and host training and safety records. The staffing agency should check to make sure the host employer meets the agency’s safety standards and training levels, and vice versa. The employer and agency should exchange each other’s safety records and review them to ensure compliance with safety standards. OSHA noted with approval that some employers will only hire temporary workers from agencies that adequately train the workers in safety.
  4. Assign and define responsibilities regarding safety. The staffing agency and host employer should assign occupational safety responsibilities and define the scope of an assigned employee’s work, and tasks to be performed, in a written contract. When possible, the contract should specify whether the agency or the host employer is responsible for safety and health issues.
  5. Injury and illness tracking and exchange of information. The employer and staffing agency should notify each other when injuries occur so both can be aware of the nature of the injuries and be better positioned to avoid such injuries in the future. OSHA requires that injury and illness records be maintained by the employer who is providing the day-to-day supervision of the employee. While the supervising employer is required to inform employees how to report work-related injuries and illnesses, both it and the staffing agency should inform the employee of this process. OSHA requires that injury/illness records be kept by the employer providing daily supervision of the temporary employee, usually the host.
  6. Conduct safety and health training and new project orientation. OSHA requires site-and task-specific safety training. Staffing agencies should provide general safety training applicable to different occupational settings. Host employers should provide temporary workers with safety training that “is identical or equivalent to that provided to the host employers’ own employees performing the same or similar task.” Temporary employees should be told how to report an injury and get treatment.
  7. Both staffing agencies and employers should have an injury and illness prevention program. Companies that do construction work must initiate and maintain accident prevention programs, provide for a competent person to conduct frequent and regular inspections, and instruct employees how to avoid unsafe conditions. 29 C.F.R. 1926.20, et. seq.   Employers should identify and track performance measures essential to evaluating the program’s effectiveness. Employers should conduct thorough investigations of injuries and illnesses.
  8. The staffing agency should maintain contact with temporary workers assigned to a host. The staffing agency (a) has the duty to inquire and, if possible, verify that the host employer has fulfilled its responsibilities for a safe workplace (b) should have a written procedure for workers to report any hazards and instances when the workers’ tasks were altered from those agreed upon with the agency. Both staffing agency and host employer should inform the workers how to report hazards and changes to the job tasks.

How Businesses Should Respond to OSHA’s Recommended Practices

The new OSHA-recommended practices make it clear that staffing agencies and host employers are jointly responsible for providing and maintaining safe working conditions for temporary employees. Both should be aware of these recommendations and ensure that they are followed to protect the safety of temporary workers employed on their premises, and to avoid complaints of alleged violations. The recommended practices will require more intensive assessment of safety-protective steps by the agency and host employer, along with follow up by each to ensure that these practices are followed in the work place. Every use of a temporary worker should be subject to a written contract between the agency and the host. The contract should define the training and safety responsibilities of each. Before temporary workers commence job duties, host employers should ensure that they are properly trained in the safety aspects of the jobs for which they are assigned and the places in which they will be performing them. Records should be kept of this training.

While aspects of this initiative may seem onerous, or unnecessary, there are many more problems that arise if the recommendations are ignored. In that event, such problems could impact workers’ health and lead to legal complications. OSHA’s initiative will give plaintiffs’ lawyers more ammunition to be used regarding complaints of workplace safety. It may lead to more complaints by would-be “whistleblowers” that their employments were adversely affected by negative reactions to reports regarding the adequacy of safety measures and/or safety related training. Since OSHA prohibits employers from retaliating against employees for exercising rights under the Act, temporary employees who make reports regarding safety should not be treated adversely as a result of the report. Staffing agencies and host employers should give safety training and compliance heightened focus as a result of OSHA’s initiative, for all these reasons.

This article is authored by attorney David A. Flores and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.



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Joint Employer Status and the NLRB

Late last month, NLRB General Counsel Richard Griffin announced that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of the 181 pending charges against McDonald’s, USA, LLC and various of its franchises, in which the Board will allege that the company and its franchisees are joint employers. This decision goes against decades of decisions and case law and could potentially be devastating to the franchise system as we know it. If upheld, the determination would bring McDonald’s (with its deep pockets) to the bargaining table in connection with a wide variety of employment related claims. The financial strength of McDonald’s would make forming a union more attractive to workers. McDonald’s, and other franchise chains, may also have to step up its policing of franchises and spend more time and money monitoring stores to prevent labor infractions.

This announcement comes as the NLRB, in an unrelated case involving Browning-Ferris Industries of California, is reviewing its standard for determining when businesses should be considered joint employers. Traditionally, to establish joint employer status, there must be a right to control. Both legally separate employers must have direction or ability to co-determine the hiring, termination, wages, hours or any other essential terms and conditions of employment. In the Browning-Ferris Industries case, the Teamsters sought to represent a bargaining unit of employees who it claimed were jointly employed by BFI and its staffing agency. The Regional Director, however, determined that the company and the staffing agency were not joint employers with respect to workers at one of the company owned recycling facilities because BFI did not exert sufficient control over the agency workers. The Teamsters sought review of this decision, which was granted by the NLRB, finding this as their opportunity to expand the test for establishing joint employer status. In a very unusual move, General Counsel Griffin filed an amicus brief urging the Board to adopt a new broader standard.

What this means for all businesses: This potential new standard for determining joint employer status may leave more employers liable for alleged labor law violations and potentially force more companies to come to the bargaining table. This possible new standard will affect every business that subcontracts or outsources any function. It seems that it may become futile to try to avoid joint employer status and, instead, companies need to investigate business practices to make sure that any other company they are in business with is doing everything as close to 100% correct as possible. In the alternative, companies may need to explore the option of eliminating the use of certain contractors completely.  At a minimum, the company should be sure to include a strong indemnification provision to hold the individual contractors or suppliers responsible for any liability suffered as a result of their noncompliance with legal responsibilities. Of course any such indemnification will be meaningful only if the other party has the financial resources to back it up.

This article is authored by attorney Lori L. Buntman and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.


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Posted in NLRB, NLRB, Union | No Comments »

EEOC Compliance in Pennsylvania

Harmon & Davies is presenting a seminar through Lorman on August 19, 2014, on EEOC Compliance in Pennsylvania.  Attorneys Tom Davies, Laura Gallagher and Kimberly Overbaugh will provide a federal and state overview of employment and labor laws, including new initiatives of President Obama’s administration, and then discuss handling investigations, responding to EEOC/PHRC Charges, social media and the hiring process, and common mistakes and how to avoid them.  Please join us and bring your questions for a panel discussion.  For more information, go to or contact us at 291-2236.



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Spankasauras and the Land of the Hostile Work Environment


The Eastern District Court of Pennsylvania recently held that a white female detective with the Philadelphia Police Department plausibly alleged that the city subjected her to a hostile work environment based upon the cumulative effect of alleged harassing conduct that included, among other things, a lieutenant calling her a “spankasauras” and “gabbygail.” 

Alone, such isolated or sporadic incidents would not support a claim of hostile work environment harassment, but the court found that such events viewed in conjunction could be deemed to create a humiliating and hostile work environment.  In the matter of Salvato v. Smith, the plaintiff alleged that in addition to being called names, she was treated differently than her male and black female coworkers in that the plaintiff was constantly questioned about her whereabouts, denied training opportunities, was not allowed to take personal calls from her child’s school, had her log-in times scrutinized, was denied requests for a steady shift, had her sick-leave scrutinized, received a warning letter in her personnel file, and was denied a transfer.   Moreover, much of the activity occurred after the plaintiff filed a grievance with the Fraternal Order of Police and a complaint with the EEO unit for discrimination. 

Although it remains to be seen how this case will play out, this case serves as a reminder to employers to be mindful of how supervisors treat employees after a grievance is filed.

This article is authored by attorney Kimberly J. Overbaugh and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Anti-Harassment Policy, Harassment, Labor & Employment | No Comments »

Supervisors must have Authority to Hire and Fire

On June 24, 2013, the U.S. Supreme Court held in Vance v. Ball State University that when analyzing harassment claims, to determine whether the employer is vicariously liable, a “supervisor” is an individual who has the authority to take tangible employment actions against others.  Individuals who do not has this authority should be treated as “co-workers.”

As background, in the 1998 Faragher and Ellerth decisions regarding employer liability for sexual harassment, the Supreme Court held that an employer can be held liable for harassment by coworkers only if the employer did not take sufficient steps to prevent and correct harassment, but the employer is strictly liable for the harassment by a supervisor if it resulted in a tangible employment action (such as discharge or demotion).  In Vance, the Supreme Court clarified that in order the employer to be strictly liable, a supervisor must be a person who has the authority to hire, fire, demote, promote, transfer, or discipline, or otherwise take tangible adverse employment actions against employees.

The Vance opinion will allow employers to demonstrate in more cases that they have taken appropriate measures to prevent and correct harassment because fewer individuals will meet the definition of supervisor.  In addition, because whether an individual is deemed a supervisor is more clear, employees (probably on the advice of counsel) may be more likely to try to resolve matters internally.  However, employers should be aware that even if higher-level, non-supervisory employees such as shift leads and foremen do not have the authority to take tangible employment action, they may still be held to a higher standard than regular co-workers, so employers should be sure they are properly trained on harassment.

In addition, given the importance of the term supervisor under this decision, employers should make sure their job descriptions accurately reflect the authority given to each position.  Employers should also review policies regarding decision-making procedures and complaint procedures to ensure that the authority given to various positions is accurate and consistent with the Company’s intentions.

This article is authored by attorney Laura Bailey Gallagher and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.


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Posted in Anti-Harassment Policy, Labor & Employment | No Comments »

The NLRB – The U.S. Senate – The Rolling Stones

You may very well be wondering what these three topics have in common.  While watching the news yesterday regarding the debates in the Senate about the “nuclear option” threatened by Senator Harry Reid, which would have changed long-standing rules of the Senate to permit presidential nominations for positions in the administration to be passed by a simple majority rather than needing six votes to survive a threatened filibuster, I was reminded of a Rolling Stones song.  In 1968, noted contemporary philosophers Mick Jagger and Keith Richards penned the words to what was to become one of the Rolling Stones’ most popular songs, “You Can’t Always Get What You Want.”  If you are an aging baby boomer like me, the chorus of that song is hardwired into your brain, especially these lines:

“No, you can’t always get what you want

But if you try sometime, you just might find

You get what you need.”

As most people that follow labor law at all know by now, there has been a controversy for the last several years regarding the composition of the National Labor Relations Board and the validity of several “recess appointments” made by President Obama to the National Labor Relations Board in January 2012.  (For additional information, see NLRB DC Circuit.)

For the last several months, the NLRB, which is supposed to have five members (traditionally three from the President’s party and two from the other party), has been operating with just three Democrat members, Chairman Mark Gaston Pearce and recess appointees Sharon Block and Richard Griffin.  Senate Republicans were incensed that even after the recess appointments had been declared unconstitutional by the D.C. Circuit Court of Appeals, President Obama re-nominated Block and Griffin to the NLRB.  It appeared that a line in the sand had been drawn over these nominees, which brought Senator Reid to the point of threatening the “nuclear option.”

As a result of lengthy discussions over the past two days, a compromise was reached which allowed pending nominations, including that of Thomas Perez (for Secretary of Labor) to move ahead for votes, and the submission of replacement nominations for Block and Griffin.  It now appears that the nominations of Chairman Pearce and Republicans Harry Johnson and Phillip Miscimarra, which had been previously voted out of Committee, will move forward together with replacement nominees, Democrats Kent Hirozawa (currently Chief Counsel to Chairman Pearce) and Nancy Schiffer (a former AFL-CIO General Counsel).

While many in the employer community seemed perfectly happy with the idea of a completely nonfunctioning National Labor Relations Board, at least a full Board, comprised of both Democrats and Republicans, will be far better than a Board with three Democrats.  Even though the Obama Administration, through the Democrat members of the NLRB, will be able to achieve some, if not all, of its administrative agenda, there will at least be dissenting opinions to NLRB actions, which will assist in clarifying the issues for any reviewing court.

This brings me back to the words of Mick Jagger and Keith Richards.  As a result of the compromises, no one may have gotten what they wanted, but they may have gotten what they needed.

This article is authored by attorney Tom Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.


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Posted in Labor & Employment, NLRB | No Comments »