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

As we previously reported here, at the beginning of 2023, the Supreme Court heard oral argument on one of the most anticipated labor cases on the high court’s docket in decades to address whether the National Labor Relations Act (“NLRA” or the “Act”) preempts state court lawsuits for tort damages caused by unions during strikes. On June 1, 2023, the Supreme Court issued its decision in Glacier Northwest, Inc., dba Calportland v. International Brotherhood of Teamsters Local Union No. 174, U.S., No. 21 – 1449, reversing the Washington Supreme Court’s decision and held that the employer’s state law tort claims were not preempted by the Act.

Continue Reading SCOTUS Issues Decision Allowing State Court Lawsuit Against Union for Property Damage Caused During Labor Dispute

On June 13, 2023, the National Labor Relations Board (the “Board” or “NLRB”) overturned another business-friendly Board decision in favor of a return to a more employee-favorable standard for determining if a worker is an employee or an independent contractor under the National Labor Relations Act (“NLRA”). Independent contractors are exempt from the rights and protections of the NLRA, including the right to form and join unions.

Continue Reading NLRB Overturns Standard for Independent Contractor Status Under the NLRA

On the heels of the National Labor Relations Board’s decision in McLaren Macomb, which invalidated most confidentiality and nondisparagement provisions in a variety of employment agreements (as we covered here and here), NLRB General Counsel Jennifer Abruzzo (the “GC”) issued GC Memorandum 23-08 on May 30, 2023, announcing that, in her view, the proffer, maintenance, and enforcement of non-compete provisions violate Section 8(a)(1) of the National Labor Relations Act (the “Act”) except in very limited circumstances. This direct challenge to the lawfulness of commonly-used non-compete agreements mirrors the Federal Trade Commission’s (“FTC”) recent proposed rulemaking that would ban employers from imposing such agreements on their workers, and follows the Board’s memoranda of understanding with the FTC and the Department of Justice’s Antitrust Division, both of which addressed the anticompetitive effects of non-compete agreements (covered here). 

Continue Reading NLRB General Counsel Announces Employee Non-Compete Agreements Violate the NLRA

On May 16, 2023, National Labor Relations Board General Counsel Jennifer Abruzzo (the “GC”) issued revisions to her original July 6, 2020 memorandum of suggested manual election protocols for use during the COVID-19 pandemic, found here. The Board’s policies have generally favored manual elections, but that rule was upended by the COVID-19 pandemic. During the onset of COVID-19, manual elections were halted completely and when elections resumed, they were conducted by mail-in ballot to ensure participant safety. As the pandemic wore on and more workers and employers alike learned how to safely return to the physical workplace, the Board issued its initial suggestions of how to safely conduct a manual election, signaling a desire to return to the status quo.

Continue Reading Back to Normal, Almost – NLRB General Counsel Issues Updated Guidance on Suggested Manual Election Protocols and Push for Manual Elections by the NLRB

In a decision that had been anticipated, the National Labor Relations Board (“NLRB” or “Board”) abandoned its short-lived burden-shifting test for determining the legality of employer discipline of employees found to have engaged in abusive or inappropriate conduct. Robbed of the ability to simply demonstrate any such discipline was not in retaliation for protected conduct. Employers will once again be called upon to grapple with a list of indefinite factors that has oftentimes rendered similar outrageous workplace conduct immune from discipline. 

Continue Reading …But Words Will Never Harm Us? The NLRB Restores Precedent Protecting Abusive Workplace Speech by Employees While They Are Engaged in Protected Concerted and Union Activities

On March 20, 2022, National Labor Relations Board (“NLRB” or the “Board”) General Counsel Jennifer Abruzzo issued a memorandum to all Regional Directors, Officers-in-Charge, and Resident Officers updating the cases they are required to send to the NLRB Division of Advice before processing further in order to “allow the Regional Advice Branch to reexamine these areas and counsel the General Counsel’s office on whether [a] change [in the law] is necessary to fulfill the Act’s mission.”

Continue Reading NLRB General Counsel Issues Memo Updating Prosecutorial Priorities

On March 22, 2023 Jennifer Abruzzo, General Counsel (“GC”) of the National Labor Relations Board (“NLRB” or the “Board”) issued a memorandum intended to assist the Regions in responding to inquiries regarding the Board decision in McLaren Macomb, 372 NLRB No. 58 (2023).

Continue Reading NLRB General Counsel Releases Memo Concerning Confidentiality and Non-Disparagement Clauses in Severance Agreements Post-McLaren