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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term had expired and continued as Peter Sung Ohr, the Acting General Counsel who was appointed to replace Robb, rescinded many of the more notable guidance memoranda Robb issued during his term.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

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

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

On January 25, 2021, the NLRB Division of Advice (“the Division”) released a memo that may indicate a change in the way workers engaged in cannabis activities are covered under federal labor law. Under the NLRA, the right to form and join a union is limited to employees. Agricultural laborers do not have that right under federal law. Despite the fact that many workers in the cannabis industry are often involved in the cultivation and harvesting of a crop, they have typically been considered employees rather than agricultural laborers under the National Labor Relations Act (“NLRA” or “the Act”). This recently released advice memo (available here) reverses that interpretation.…
Continue Reading NLRB’s Division of Advice Determines Certain Workers in the Cannabis Industry Are Exempt From Federal Labor Law

When it comes to whether unions have a right to enter an employer’s premises over the employer’s objections, California’s law is the polar opposite of the National Labor Relations Act and the law in most other states.  In California, unions generally have special access rights that nonlabor parties do not have.  Unions are given preferential treatment because of the state’s union-friendly public policies.  However, this may soon change due to the Supreme Court’s recent order granting a hearing in Cedar Point Nursery et. al. v. Hassid where the issue presented is:…
Continue Reading SCOTUS to Consider Whether California Unconstitutionally “Takes” Private Property When It Compels Employers to Grant Union Access to Private Property

On September 18, the Board’s GC issued GC Memo 20-14, entitled Summaries of Advice Merit Determinations Related to Coronavirus Disease 2019 Issues for the purpose of giving the public a better understanding of the GC’s approach to COVID-19 related issues.  What emerges is a clear message—while the pandemic can impact certain obligations under the National Labor Relations Act, the agency will not permit employers to use the pandemic as a sword to engage in unlawful conduct.  Under Agency guidelines, advice memos in such “go” cases cannot be released until the case is closed.  Accordingly, rather than release actual advice memos, the GC’s September 18 memo contained a series of anonymous case summaries in which an employer’s actions relating to the virus were deemed unlawful.  Over the past several months, we have reported on advice memos from the NLRB General Counsel’s Division of Advice finding various employer actions in dealing with COVID-19 issues to be permissible under the NLRA (see our recent postings here and here).  The GC’s latest memo includes a list of these earlier advice memos in which an employer’s COVID-19 conduct was found lawful.  What follows is a description of some of the issues and settings rendering these matters meritorious and therefore “go” cases.…
Continue Reading GC Finds Merit in COVID-19 Related ULP Cases in GC Memo 20-14

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

Last December, we addressed the National Labor Relations Board’s (NLRB or Board) new rules applicable to all NLRB-conducted elections.  As then reported, these new rules partially reversed election rules implemented in 2014 and were designed to address many of the concerns raised by the Board’s 2014 rules changes.  Specifically, the Trump Board has repeatedly expressed concern that the timeframe prior to a pre-election hearing was too truncated to allow the parties to adequately prepare for hearing and meet their many regulatory obligations.  Originally scheduled to take effect April 16, 2020, implementation was later postponed and rescheduled to take effect on May 31. …
Continue Reading The NLRB Reacts to Court’s Eleventh-Hour Partial Injunction of the Agency’s New Election Rules

From time to time, employers trigger labor disputes when they make unilateral changes in working conditions.  Unions objecting to such changes often complain to the NLRB, claiming a change to be mandatory bargaining subjects and that the employer’s change without prior bargaining violates the NLRA’s Sections 8(a)(5) and (d). …
Continue Reading Why, How and When Katz May “Trump” an Expired CBA When It Comes to Making Unilateral Changes — The Relationship Between MV Transportation and Raytheon Network

In Apogee Retail, 368 NLRB No. 144 (2019), the NLRB overruled the Obama Board’s decision in Banner Estrella Medical Center, 362 NLRB 1108 (2015) and held that investigative confidentiality rules that by their terms apply only to investigation participants and last only for the duration of an investigation are categorically lawful because the justifications for such rules are self evident and predictably outweigh the comparatively slight potential for such rules to interfere with the exercise of Section 7 rights.  In this day and age of workplace harassment claims and internal investigations, Apogee was welcome news for employers because it ended the legal requirement that an employer prove that it had a particularized, legitimate and substantial business justification for compulsory confidentiality and because that said justification outweighed employee Section 7 rights in order for such prohibitions to be adjudged lawful.…
Continue Reading Keep a Lid on It – The Trump NLRB Reaffirms Employer Ability to Enforce Investigative Confidentiality Rules