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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

As we previously reported, the National Labor Relations Board (“NLRB” or “Board”) under President Biden is working to undo much of any employer-friendly actions taken during the previous administration. On February 21, 2023, the Board continued in its trend and wiped away a Trump-era ruling which gave employers certain latitude in drafting and executing severance agreements with their employees. Specifically, the Board, in a divided decision, ruled employers can no longer offer severance agreements containing clauses that (i) prevent employees from making disparaging remarks about their former employer or (ii) compel departing employees to keep the contents of the severance agreement confidential.…

Continue Reading We Can Now Add Civility and Secrecy to the List of Things Money Can’t Buy: NLRB Rules Non-Disparagement and Confidentiality Clauses in Severance Agreements Unlawfully Restrain and Coerce Employees

The new year begins with one of the most anticipated labor cases on the high court’s docket in decades. On January 10, 2023, the U.S. Supreme Court heard oral argument in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174 to decide whether the National Labor Relations Act (“NLRA” or the “Act”) preempts state court lawsuits for tort damages caused by unions during strikes. Employers should gain much greater clarity into whether they can seek relief from such conduct via a damages lawsuit. If the U.S. Supreme Court finds that such conduct is not preempted and may be litigated in state court, such a ruling would go far in protecting employers’ interests in contentious labor disputes and potentially shift the balance of power toward employers during these disputes. …

Continue Reading SCOTUS Hears Oral Argument on Whether NLRA Preempts State Court Lawsuits Against Unions for Property Damage Caused During Labor Disputes

On December 16, 2022, the National Labor Relations Board (“NLRB” or “Board”) abandoned the employer-friendly access standard for off-duty employees of an onsite contractor that was adopted under the Trump Administration in Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, 368 NLRB No. 46 (2019)(“Bexar County I”). Given a chance to revisit the Trump-era standard, the current Board, seeing “no reason to attempt to rehabilitate a standard that fundamentally fails off-duty contractor employees by almost always denying them their right to engage in Section 7 activities at their workplace,” rejected the access standard from Bexar County I and reinstated the previously court-approved (and union advantageous) standard announced in New York New York Hotel & Casino, 356 NLRB 907 (2011), enfd. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 568 U.S. 1244. See Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, 372 NLRB No. 28 (2022) (Bexar County II).…

Continue Reading NLRB Provides Off-Duty Contractor Employees With Property Access to Engage in Section 7 Activity

As we previously predicted, the National Labor Relations Board (“NLRB” or the “Board”) issued its decision in American Steel Construction, Inc. (available here) and yet again overruled another case decided under the Trump Administration.…

Continue Reading NLRB Confirms a Return to Union Gerrymandered Bargaining Units

The constant fluctuations in precedent at the National Labor Relations Board (“NLRB” or the “Board”) continue as the Board overrules another case decided under the Trump Administration. This time the NLRB has set its sights on the collection of union dues following the expiration of a collective bargaining agreement. On October 3, 2022, the Board issued its decision in Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center and Local Joint Executive Board of Las Vegas (available here) overruling the 2019 case of the same name.…

Continue Reading NLRB Revisits Union Dues Checkoff Rule

On the heels of the Labor Day weekend, the National Labor Relations Board (NLRB) released a Notice of Proposed Rulemaking and request for comments (NPRM) that would once again change the joint employer legal standard. The proposed regulations roll back the employer-friendly rule the NLRB finalized during the Trump administration.…

Continue Reading NLRB Releases Proposed Joint Employer Rule Rolling Back Trump-Era Standard

On July 13, 2022 the National Labor Relations Board (“NLRB” or the “Board”) announced that by May 25th, 2022 the number of union representation petitions filed with the Board surpassed the total number of petitions filed in all of Fiscal Year 2021. Representation petitions are requests to have the NLRB conduct an election to determine if employees wish to be represented by a union. During the first nine months of Fiscal Year 2022 (October 1-June 30), 1,935 representation petitions were filed with the Board. This represents a 56% increase from the 1,240 filed in the first three quarters of FY2021. The Board also noted that, in addition to the rise in petitions, the number of unfair labor practice charges increased from 11,451 to 13,106 – 14.5% – during that same time period.…

Continue Reading Union Election Petitions on the Rise, Total Number of FY21 Petitions Eclipses in First Three Quarters of FY22

In contravention of decades-old precedent, employers may be required to recognize unions without a secret ballot election, thereby denying employers the opportunity to protect the private choice of their employees. The National Labor Relations Board’s (“NLRB” or “Board”) General Counsel, Jennifer Abruzzo, argued that the Board should reinstate the recognition process and expand the ability of the Board to order an employer to bargain with a union even without its winning an election.
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Continue Reading NLRB General Counsel Seeks to Reinstate Radical Standard for Union Recognition and Restrict Employer Free Speech During Corporate Organizing Campaigns