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Mark Ross is an attorney in Sheppard Mullin’s San Francisco office.

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This article originally appeared on Law360 on June 25, 2021.

On Wednesday, June 23, 2021, the U.S. Supreme Court issued its decision in Cedar Point Nursery v. Hassid.  The ruling invalidated a California labor regulation that requires growers to grant union organizers seeking to represent their workers property access, and declared it an unconstitutional taking of the grower’s property in violation of the 5th and 14th Amendments.  Several other California laws and decisions sanction similar union trespass onto private property.  For example, numerous state court decisions have granted unions access to private property of employers with whom they have a dispute on the theory that such access is required in order to enable labor to communicate its message to the public and to put economic pressure on the employer.  Likewise, California’s statutes have been applied to grant special protections to labor speech and to bar courts from enjoining union trespass on private property.  See e.g., Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8, 55 Cal.4th 1083 (2012); UFCW, Local 324 v. Superior Court of Los Angeles, 83 Cal.App.4th 566 (2000); cf. Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004).[i]  Cedar Point offers a new avenue of attack against such union invasions of an employer’s property and a possible leg up on getting such trespasses enjoined in the future.
Continue Reading SCOTUS Decision May Force Reversal of California Laws Sanctioning Union Trespass

On the eve of the holidays, the National Labor Relations Board (NLRB) delivered an early Christmas present to employers with its issuance of new regulations governing the NLRB election process.  While not scraping the Obama Board’s controversial 2014 election regulations wholesale, the current Board’s new rules moderate the election processing time frames considerably, allow employers to raise issues of supervisory status before an election is held and give employers a greater opportunity to campaign amongst employee voters in an effort to maintain their union free status.  These procedural changes which will become effective in early April 2020 are welcome news for they go a long way towards re-leveling the playing field for employers when they litigate election issues and conduct election campaigns.
Continue Reading Christmas Comes Early for Employers at the NLRB — New Election Procedures That Give Employers a Greater Opportunity to Mount Legal Challenges to Election Petitions and to Effectively Campaign Against Unionization

In 2004, the National Labor Relations Board (NLRB) issued Lutheran Heritage Village-Livonia, 343 NLRB 646 (“Lutheran Heritage”), and held that the mere maintenance of a neutral work rule violated Section 8(a)(1) of the National Labor Relations Act (NLRA) if employees would reasonably construe the rule to prohibit union and other protected concerted activity (Section 7 conduct). For the purposes of this analysis, a neutral work rule is one that does not explicitly reference or restrict Section 7 conduct. In the ensuing years, primarily during the Obama administration, the Board relied on Lutheran Heritage’s “reasonably construe” standard to invalidate countless neutral work rules to the point that practically every employer in America was placed at risk of being found to be in violation of the NLRA by virtue of the wording found in their employment agreements, employee handbooks and work rules.
Continue Reading Striking A New Balance – The NLRB Abandons the Lutheran Heritage Test and Devises a New Standard for Assessing the Facial Validity of Neutral Work Rules

Yesterday, the National Labor Relations Board (“Board”) overruled Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”) and returned to the pre-BFI standard that governed joint employer liability. Hy-Brand Industrial Contractors Ltd., 365 No. 156 (December 14, 2017) (“Hy-Brand”).

The BFI decision set forth a broad definition of “joint employer,” imposing liability and requiring bargaining in situations where a business possesses only potential and indirect control over the employees in question. BFI received widespread criticism from both unionized and union-free businesses, as the BFI test was unpredictable and fundamentally altered the law applicable to a number of business relationships including: user-supplier, contractor-subcontractor, franchisor-franchisee, parent-subsidiary, predecessor-successor, lessor-lessee, and creditor-debtor. Efforts to overturn BFI have been ongoing since 2015, including the Save Local Business Act which was advanced to the Senate in November 2017.
Continue Reading NLRB Overrules Browning-Ferris Joint Employer Standard

On May 23, the NLRB issued Road Sprinkler Fitters Local Union 669, finding that U.A. Local 669 (Union) violated the NLRA when it sought to apply and enforce facially…
Continue Reading NLRB Orders Union To Drop Unlawful Grievance, to Dismiss Suit Seeking to Compel Neutral Employers to Arbitrate Grievance and to Pay The Employers’ Legal Fees and Defense Costs