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.
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.
Continue Reading NLRB General Counsel Seeks to Reinstate Radical Standard for Union Recognition and Restrict Employer Free Speech During Corporate Organizing Campaigns
Under well-settled, decades-old precedent, employers have historically been free to hold mandatory “captive audience” meetings to educate employees, share views on unionization, and discuss what employees’ rights are with respect to the same. However, on April 7, 2022, the NLRB General Counsel (“GC”) issued a memorandum stating her intent to ask the National Labor Relations Board (“Board”) to reconsider this rule, and overturn 75 years of precedent allowing an employer to hold “captive audience” meetings. Notwithstanding the plain wording of Section 8(c) of the NLRA, the GC takes the position that such mandatory meetings are inconsistent with employees’ rights under the NLRA. According to the GC, “captive audience” meetings chill employees’ Section 7 rights to refrain from listening to employer speech regarding unionization. She argues that employers typically use threats to coerce employees to attend mandatory meetings, and therefore these meetings fall outside the scope of statutory and constitutional free speech protections. Instead, she will urge the Board to require that an employer must make clear to employees that their attendance at these meetings is truly voluntary. While this memorandum does not change current law, it signals the GC’s intent to bring unfair labor practice charges against an employer for holding “captive audience” meetings in order to bring the issue before the Board.
Continue Reading NLRB General Counsel Will Ask the Board to Find That Captive Audience Meetings Violate the NLRA
The National Labor Relations Board (Board or NLRB) could reverse a 2019 decision holding that honest, albeit mistaken, classification decisions and announcements to employees do not violate the National Labor Relations Act (the NLRA). On March 17, 2022, General Counsel of the NLRB issued a Complaint against Deco Logistics, Inc. d/b/a Container Connection and its affiliates (collectively Deco Logistics), alleging that Deco Logistics violated the NLRA by misclassifying drivers as independent contractors as well as other conduct that allegedly violated the workers’ Section 7 rights to organize, such as interrogating a driver about union activities and retaliating against drivers for assisting the union’s organizing campaign. The Complaint seeks an affirmative order that Deco Logistics reclassify its independent contractors as employees, and compensation for any harm the workers incurred as a result of the misclassification as independent contractors.
Continue Reading NLRB to Decide Whether Misclassification Is Standalone Violation of the NLRA
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
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.
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.
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.
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