As we previously reported, the National Labor Relations Board (“NLRB” or “Board”) has indicated that it is committed to considering consequential damages as a possible make-whole remedy applicable to damages both caused by an employer’s unfair labor practice (“ULP”) and against a union for damages caused to an employer. A recent settlement agreement involving the … Continue Reading
Coming on the heels of the Labor Day holiday, in a long anticipated move, the National Labor Relations (“NLRB”) Board issued a draft of a new proposed joint employer standard, scheduled to be published on September 7, 2022. If ultimately implemented, the NLRB’s Notice of Proposed Rulemaking (“NPRM”) would nix the most recent joint employer … Continue Reading
In a continuation of the current National Labor Relations Board’s (“NLRB” or “Board”) reversal of recent precedent established by the NLRB under the prior administration, on August 29, 2022, the Board held that Tesla, Inc.’s (“Tesla”) dress code violated the National Labor Relations Act (“NLRA”) because employees were prevented from wearing shirts that supported their … Continue Reading
On August 9, 2022, the U.S. Court of Appeals for the District of Columbia held that the National Labor Relations Board (“NLRB”) had adequate justification to rule that an aluminum manufacturer (“Constellium”) violated the National Labor Relations Act (“NLRA”) by firing a worker who made a vulgar protest against the employer by writing the words … Continue Reading
On June 28, 2022, the National Labor Relations Board (“NLRB”) voted to uphold the so-called “successor bar doctrine” in Hospital Menonita de Guyama, Inc. This doctrine provides incumbent unions with an irrebuttable presumption of majority support for at least six months after a change in employer ownership. Incumbent unions enjoy this irrebuttable presumption even if, … Continue Reading
On June 21, 2022, the National Labor Relations Board (“NLRB”) released its rulemaking agenda for Spring 2022, indicating the Board is considering revisions to two significant and tumultuous topics pursuant to the rulemaking process: (1) the joint-employer standard under the National Labor Relations Act (“NLRA”), and (2) representation procedures, including those relating to blocking charges, … Continue Reading
In a decision issued on June 2, the National Labor Relations Board modified the timing of its electronic notice-posting requirement in circumstances where an employer has not yet reopened its facility due to COVID-19, or where a substantial complement of employees has not yet returned to work on-site when the employer “may be communicating with … Continue Reading
In an Advice Memorandum released on May 25, 2022, NLRB General Counsel Jennifer Abruzzo laid out a blueprint for changes she’d like made to Board precedent concerning union representatives’ access to employer property. At issue is a pair of 2019 rulings by the NLRB in UPMC, 368 NLRB No. 2 (2019) and Kroger Ltd. P’ship, … Continue Reading
With Congress failing to make the organizing process easier for unions, the NLRB General Counsel Jennifer Abruzzo is now asking the Board to require employers to recognize unions without a secret ballot election. As foreshadowed by her August 2021 memo on Mandatory Submissions to Advice, in a brief filed in Cemex Construction Materials Pacific LLC, … Continue Reading
On April 6, 2022, the National Labor Relations Board (“NLRB” or the “Board”) issued a press release recognizing the shockingly large surge in new union organizing. Specifically, during the first half of Fiscal Year 2022 (October 1, 2021 to March 31, 2022), the NLRB reported that union representation petitions increased by 57%. Representation petitions are … Continue Reading
For decades, employers had been free to gather employees to discuss – in a non-coercive manner – the employer’s views on unionization, and had been free to share with employees what employees’ rights were with respect to the same. Earlier today, the NLRB General Counsel issued a memorandum declaring her intent to attempt to overturn … Continue Reading
On March 30, 2022, three judge panel of the Third Circuit Court of Appeals unanimously overruled prior precedent allowing “implied” contracts to survive the expiration of a written agreement. The instant panel held, instead, that “implied” contract provisions that “have no durational limit of their own” are “governed by the general durational clauses of the … Continue Reading
As foreshadowed by the NLRB General Counsel’s August 2021 Advice Memorandum (which we discussed here), the vacillating standard for the legality of employer handbooks and policies and confidentiality requirements during open employer-investigations have been ripe for reversal by the NLRB. On March 7, 2022, in response to the NLRB’s January 6, 2022 notice and invitation … Continue Reading
On February 7, 2022, the White House Task Force on Worker Organizing and Empowerment issued a report recommending, among other things, increased coordination among agencies working on labor and employment matters. In a memorandum circulated on February 10, 2022, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced her agreement with that recommendation and … Continue Reading
On February 1, 2022, the General Counsel (“GC”) of the National Labor Relations Board (“NLRB”) announced a new initiative encouraging NLRB Regions to seek injunctive relief under Section 10(j) of the National Labor Relations Act (“NLRA” or “Act”) where workers have alleged unlawful threats or other coercion by employers during union organizing campaigns—even if the … Continue Reading
On Friday, December 10, 2021, the Board announced in its regulatory agenda that it plans to engage in rulemaking on the standard for determining whether two employers are “joint employers” under the NLRA. It remains to be seen exactly what the contours of the new joint-employer rule would be, although it has been widely predicted … Continue Reading
As we have discussed previously (here, here, here and here), Congressional Democrats have been attempting to amend the National Labor Relations Act (“NLRA”) for the last few years. However, attempts to invoke sweeping changes to a number of areas of the NLRA through the Protect the Right to Organize Act (“PRO Act”) have stalled in … Continue Reading
The ability to form smaller bargaining units by breaking up larger aspects of an employer’s organization—sometimes called “micro-units”—is generally seen as an effort to enhance the ability of unions to gain entry into an employer by making it easier to organize. Those opposed to the practice, including both employers and trade groups, contend that carving … Continue Reading
Google recently suffered a blow in its ongoing National Labor Relations Board litigation, when an Administrative Law Judge appointed to rule on a discovery dispute ordered the Silicon Valley company to turn over the lion’s share of certain documents subpoenaed by former Google employees. Discovery issues have become more prevalent in NLRB litigation as massive … Continue Reading
On November 10, 2021, the National Labor Relations Board announced that it is seeking public input to address whether the Board should award consequential damages to make employees whole for economic losses and under what circumstances. See Thyrv, Inc. 371 NLRB No. 37 (2021). The Board’s traditional remedy for unlawful layoffs or terminations requires that … Continue Reading
Today, the National Labor Relations Board (NLRB), along with the U.S. Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC), announced the creation of an interagency initiative to raise awareness of worker retaliation issues. Building upon their pre-existing interagency relationships, the NLRB, DOL, and EEOC seek to further protect workers from unlawful retaliatory … Continue Reading
General Counsel of the National Labor Relations Board, Jennifer Abruzzo, is already on her way to accomplishing one of the objectives she laid out in her recent Advice-Memorandum 21-04 (discussed here earlier on this blog). In the GC’s memo, she identified a number of Board decisions to re-evaluate, including Bexar County Performing Arts Ctr. Found., … Continue Reading
As we have discussed in previous posts (see here and here), the Protect the Right to Organize Act (“PRO Act”), which would drastically and fundamentally change the nature and scope of the National Labor Relations Act (“NLRA”) and labor-management relations in the private sector, has languished in the U.S. House of Representatives over the last … Continue Reading
The recently-sworn in General Counsel of the National Labor Relations Board, Jennifer Abruzzo, has had a busy month, setting the stage for a slate of new enforcement initiatives. First, the GC issued Advice Memorandum 21-04 (discussed here last week), identifying numerous Board decisions that are all but certain to be reassessed once the full complement … Continue Reading
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