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The National Labor Relations Board is pushing forward with its plan to cooperate more closely with other Federal agencies tasked with overseeing employment law. This follows an announcement in November 2021 that the National Labor Relations Board and Equal Employment Opportunity Commission would work together on activities to raise awareness about retaliation issues in the workplace.  The agencies announced that they would increase collaboration between the agencies on information sharing and public engagement with the employer community, business and labor organizations, and civil rights groups.
Continue Reading NLRB General Counsel Issues Memorandum on Increased Inter-Agency Coordination, Collaboration

The National Labor Relations Board (the “NLRB” or “Board”) seemingly took very little time off during the holidays and in the last few weeks announced that it is seeking public input on whether to reconsider two significant standards. First, on December 27, 2021, the NLRB issued a notice inviting parties to submit briefs on whether it should reconsider its standard for determining independent contractor status. Second, on January 6, 2022, the Board invited parties to file briefs on whether it should continue to adhere to the standard established for determining whether a facially neutral work rule violates Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”). These invitations come hot on the heels of the Board’s December 7th invitation for briefing on its standard for determining appropriate bargaining units.
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Continue Reading NLRB Rings in the New Year by Inviting Briefing on Multiple, Far-Reaching Standards Impacting Employers

As we previously predicted, significant changes are taking place at the National Labor Relations Board (“NLRB” or the “Board”). To date, much of that change has been in the agenda set by General Counsel Jennifer Abruzzo. Now, President Biden has had the opportunity to impact the composition of the Board itself and thus Board law. President Biden has appointed, and the Senate confirmed, two new democratic members to the NLRB: David Prouty and Gwynn Wilcox, who are both former union lawyers. This gives the Democrats a majority on the Board and indicates a strong likelihood that President Biden’s pro-labor agenda will be approved by the Board. It appears that we now know the first significant change this newly constituted Board will tackle.
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Continue Reading NLRB Foreshadows a Return to Union Gerrymandered Bargaining Units

As we previously reported, the National Labor Relations Board (“NLRB” or the “Board”) has been undergoing a seismic change of direction. With two memoranda published September 8th and September 15th, NLRB General Counsel (“GC”) Jennifer Abruzzo looks to take further progress toward fulfilling President Biden’s promise to be the “strongest labor President you have ever had.” Following NLRB Chairman McFerran expressly stating her willingness to explore new remedies for unfair labor practice violations, GC Abruzzo has instructed the regional offices to seek expanded remedies in Unfair Labor Practice (“ULP”) litigation and settlement negotiations.
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Continue Reading NLRB General Counsel Issues Memos Calling for New Harsher Penalties for Unfair Labor Practice Violations

As we have previously reported, the National Labor Relations Board (“NLRB” or the “Board”) was likely to undergo substantial policy changes under President Biden. This process began when President Biden took the unprecedented step of firing former General Counsel Robb before his four-year term had expired and continued as Peter Sung Ohr, the Acting General Counsel who was appointed to replace Robb, rescinded many of the more notable guidance memoranda Robb issued during his term.
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Continue Reading NLRB General Counsel Sets an Agenda to Reverse Trump-Era Board Policy

On July 21, 2021, the National Labor Relations Board (“NLRB” or the “Board”) issued a 3-1 decision affirming its precedent that displaying banners and a large inflatable rat (“Scabby the Rat”) near neutral employers does not violate the National Labor Relations Act (“NLRA” or “the Act”).  This decision may come as a disappointment to many employers as the NLRB under the Trump administration had been making efforts to end what many felt was unlawful secondary picketing under the Act.
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Continue Reading Scabby Survives Another Trip to the NLRB: Board Reaffirms Rat-and-Banner Displays Targeting Neutral Businesses Are Permissible

Substantial changes are afoot at the National Labor Relations Board (NLRB).  Most notably, these include the firing of the NLRB’s General Counsel Peter Robb and the rescission of ten of Robb’s General Counsel Memoranda. The New Acting General Counsel further ordered the withdrawal of an unfair labor practice complaint against UNITE HERE challenging a pre-recognition neutrality agreement. This latter decision is at odds with guidance provided by the NLRB over the last several months and is certainly indicative of a transformation taking place at the agency under the Biden administration. These changes are discussed in detail below.
Continue Reading New Administration, New Direction as Acting NLRB General Counsel Rescinds 10 General Counsel Memos and Reverses Course on Neutrality Pacts With Unions

Unions have long sought to avoid the NLRB’s election process, relying instead upon so-called “neutrality” agreements to obtain initial recognition by employers and legally enforceable rights to represent and bargain on behalf of previously unrepresented employees.  Although truly neutral pre-recognition “neutrality agreements,” i.e. those calling for an employer to be neutral on the subject of unionization and little more, are lawful, many such agreements go beyond mere neutrality and venture into actual employer support of organizing.  This may render such agreements unlawful under the National Labor Relations Act (NLRA or Act) because they interfere with employees’ rights under the Act.  Indeed, Section 8(a)(2) of the Act declares it impermissible for an employer to support a union’s organizing efforts.  Likewise, Section 8(b)(1)(A) of the Act makes it unlawful for a union to receive such support. …
Continue Reading Neutrality and Labor Peace Agreements – When Its Unlawful for an Employer to Be “Too Neutral” as to Union Organizing Under the NLRA

Did an NLRB’s Regional Director abuse her discretion when she directed a mail ballot election instead of an in-person (manual) ballot election during the COVID-19 pandemic?  Though not getting the attention it deserves, this is an extremely important issue going to the very integrity of the Board’s representation process.  Manual balloting has long been the Board’s preferred manner of conducting an election because mail balloting is held under less controlled conditions and, thus, more prone to irregularities.  Moreover, mail ballot elections may result in lower employee election participation.  Most importantly to employers, mail ballot elections also generally favor unions.
Continue Reading The Board Weighs In on the COVID Mail Ballot Controversy

The National Labor Relations Board’s (“NLRB” or Board”) Division of Advice[1] recently released five memos dealing with issues related to the COVID-19 pandemic—concluding in all five that dismissal of the pending unfair labor practice charge (“ULP” or “charge”) against the employer was warranted.  These advice memos come on the heels of a series of advice memos issued by the Division of Advice in July, which also recommended the dismissal of COVID-19-related charges filed against employers.  Although these advice memoranda do not carry the same weight as a Board decision, they shed light on how the regional offices may view these matters going forward and can be used as a roadmap for employers who are undoubtedly navigating similar issues in their businesses during the pandemic.
Continue Reading NLRB Releases More Employer-Friendly COVID Advice