National Labor Relations Act

On March 8, 2024, a federal judge in the United States District Court for the Eastern District of Texas dealt a serious blow to the National Labor Relations Board’s (the “Board”) efforts to further increase the reach of the National Labor Relations Act (“the NLRA”). Judge J. Campbell Barker struck down a final rule issued by the Board that would have drastically broadened the standard the Board applies to determine when employers are joint-employers for the purposes of federal labor law. The blow was delivered three days before the rule was set to take effect on March 11, 2024 following a 14-day stay order also issued by Judge Barker. Continue Reading Federal Judge’s Decision Deals Serious Blow to NLRB’s Joint Employer Rule and Continued Efforts to Expand Who Constitutes an Employer Under the NLRA

On May 14, 2024, the United States District Court for the District of Massachusetts granted a petition for interim injunctive relief under Section 10(j) of the National Labor Relations Act (“NLRA”) that was filed by the Regional Director for Region One. Among other things, the court’s order required I.N.S.A, a cannabis company (the “Employer”) to: 1) immediately recognize and bargain collectively with United Food and Commercial Workers International Union, Local 1445 (the “Union”) as the collective bargaining representative of its employees even though a majority of workers voted against unionizing; and 2) rehire two pro-union employees who were terminated during the organizing campaign.Continue Reading U.S. District Court Grants 10(j) Injunctive Relief and Requires Employer to Bargain With Union That Lost Secret Ballot Election

On May 8, 2024, the National Labor Relations Board (“Board”) issued a decision reversing a 2021 decision the Board previously vacated after former Board Member William Emanuel, who participated in the ruling, was found to have broken ethics rules by failing to recuse himself from the case. In the decision, the Board held that George Washington University Hospital (“GW Hospital”) violated the National Labor Relations Act (the “Act”) by unilaterally withdrawing its recognition of a union and refusing to bargain in good faith. See The George Washington Univ. Hosp., L.P., 373 NLRB No. 55 (2024).Continue Reading NLRB Finds GW Hospital Failed to Bargain in Good Faith in Reversal of Vacated Decision

On April 26, 2024, Ctrl Alt Destroy, Inc. (“CAD”), a California Corporation and cannabis licensee filed a lawsuit against Nicole Elliott in her official capacity as Director of the State of California’s Department of Cannabis Control (“DCC”) and Rob Bonta in his official capacity as Attorney General of the State of California, seeking declaratory and injunctive relief alleging that California’s Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”) is unconstitutional under the Fifth and Fourteenth Amendments to the US Constitution and is preempted by the National Labor Relations Act (“NLRA”).Continue Reading Cannabis Operator Challenges California State Statute and Regulations Requiring Labor Peace Agreements

Through Board decisions, rule making, and NLRB General Counsel’s (“GC”) memoranda, the National Labor Relations Board (“NLRB” or “the Board”) continues to expand the potential penalties for employers found to have committed unfair labor practices (“ULP”). The shift toward an employee-friendly enforcement scheme has continued with GC Jennifer Abruzzo’s latest memorandum, issued on April 8, 2024, wherein the GC stated her desire to expand the availability of remedies for violations of labor law to even those employees who did not file, or are not identified in, ULP charges. Continue Reading NLRB General Counsel Issues New Memo Further Expanding Penalties for Unfair Labor Practice Violations

In a recent 2-1 decision in Quickway Transportation, Inc., 372 NLRB No. 127 (2023), the National Labor Relations Board (the “Board”) reversed the Administrative Law Judge and ordered a trucking company to re-open its terminal and restore the status quo ante when it held that the company’s decision to terminate all of its recently unionized truck drivers and close the terminal violated sections 8(a)(3) and 8(a)(5) of the National Labor Relations Act (the “Act”). While this decision does not overturn existing Board precedent, as might be expected given the spate of recent decisions that we previously reported and discussed here, here, here, and here, but it is significant because it demonstrates the current Board’s willingness to rigorously sift through and interpret every aspect of the employer’s conduct to infer union animus and to rely on that inference even in the absence of direct evidence. Continue Reading Think Twice Before Closing the Shop Doors

As we previously reported and discussed here, the Cemex Construction Materials Pacific, LLC ruling has dramatically changed the threshold that will prompt the National Labor Relation Board (“NLRB”) to issue mandatory bargaining orders and is going to have a significant impact on the manner in which employers may respond to union organizing efforts. As the NLRB held in Cemex, if a union demands voluntary recognition based on a showing of majority support, the employer has two choices, which it must exercise within two weeks: (i) recognize and bargain with the union, or (ii) file a RM-Petition to initiate the NLRB conducting a secret ballot election. If the employer chooses the latter, and commits an unfair labor practice during the election period, the NLRB likely will require the employer to recognize and bargain with the union.Continue Reading Judge Issues First Post-Cemex Bargaining Order Despite Employer Winning Union Election

On August 30, 2023, the National Labor Relations Board (the “Board”) released a pair of decisions: Wendt Corporation, 372 NLRB No. 135 (2023) and Tecnocap, LLC, 372NLRB No. 136 (2023), overruling different aspects of the 2017 decision in Raytheon Network Centric Systems, 365 NLRB No. 61 (2017).[1] According to the Board, it reaffirmed and preserved the long-standing principles of the defense of past practice that employers have utilized to escape a finding of a violation of 8(a)(5) of the National Labor Relations Act (the “Act”) when they have implemented unilateral changes to the terms and conditions of employment for employees who are represented by a union.Continue Reading Pair of Board Decisions Significantly Limit Employers’ Power to Act Unilaterally and Past Practice Defense

On August 31, 2023, the National Labor Relations Board (“NLRB” or “Board”) adopted a broader test for what is considered “protected concerted activity” under the National Labor Relations Act (“NLRA” or the “Act”). Section 7 of the NLRA protects employees’ right to engage in concerted activities for the purpose of mutual aid or protection, otherwise known as “protected concerted activity” or “PCA.” Whether an employee’s conduct qualifies as “concerted” depends on whether their activity is linked to those of other employees. On the other hand, whether the employee’s activity is for “mutual aid or protection” focuses on whether the employee(s) involved are seeking to improve their conditions of employment. This standard applies to union and union-free settings. Continue Reading NLRB Expands Scope of What Is Considered Protected Concerted Activity in Workplaces

At the end of last week, the National Labor Relations Board (the “Board”) issued two huge blows to employers that give significant advantages to unions and ease their ability to achieve status as a certified bargaining representative. Continue Reading Newly Created NLRB Rules Drastically Change the Process for Unions Seeking Recognition of Most Private Sector Employees in the U.S. and Substantially Limits Employee Voting in Secret-Ballot Election

On August 2, 2023, the National Labor Relations Board (the “NLRB” or “Board”) issued its decision in Stericycle Inc., 372 NLRB No. 113 (2023) (“Stericycle”) overruling the standards established in The Boeing Company, 365 NLRB No. 154 (2017) (“Boeing”) and LA Specialty Produce Co., 368 NLRB No. 93 (2019) (“LA Specialty Produce”) for determining whether facially neutral work rules violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”). The standard the Board sets forth in Stericycle applies to union and non-union workplaces and goes far further than simply overruling cases decided during the Trump Administration. Under the new standard, a work rule is presumptively unlawful if it has a reasonable tendency to chill employees from exercising their rights when viewed from the perspective of the reasonable employee, even if a contrary interpretation of the rule is also reasonable. Once established, the employer must prove that 1) the rule advances a legitimate and substantial business interest, and 2) that the employer is unable to advance that interest with a more narrowly tailored rule.Continue Reading NLRB Adopts Volatile New Standard for Evaluating Work Rules