2024 Traditional Labor Law Developments Tracker | Practical Law

2024 Traditional Labor Law Developments Tracker | Practical Law

A Practice Note tracking key US traditional labor law developments in the private sector and federal public sector, including laws, regulations, administrative agency guidance, operations updates, and precedent, and federal court precedent issued in 2024. The developments tracked here relate to, among other things, union elections, unfair labor practices, obligations to engage in collective bargaining, and federal court review of administrative agency decisions and actions.

2024 Traditional Labor Law Developments Tracker

Practical Law Practice Note w-041-8497 (Approx. 28 pages)

2024 Traditional Labor Law Developments Tracker

by Practical Law Labor & Employment
MaintainedUSA (National/Federal)
A Practice Note tracking key US traditional labor law developments in the private sector and federal public sector, including laws, regulations, administrative agency guidance, operations updates, and precedent, and federal court precedent issued in 2024. The developments tracked here relate to, among other things, union elections, unfair labor practices, obligations to engage in collective bargaining, and federal court review of administrative agency decisions and actions.
For information on traditional labor law developments from 2022 and 2023, see the 2022 Traditional Labor Law Developments Tracker and 2023 Traditional Labor Law Developments Tracker, respectively.
For other key US labor and employment law developments, see 2024 Labor & Employment Law Developments Tracker. For key US immigration developments, see 2024 US Immigration Developments Tracker. For employment, traditional labor, and US immigration developments from previous years, see Labor, Employment, and Immigration Trackers Toolkit.

What's New

  • July 16, 2024: The General Counsel issued Memorandum GC 24-05, affirming that the agency will continue to aggressively seek Section 10(j) injunctions to preserve the status quo and maintain the efficacy of subsequent Board final orders. The General Counsel issued the memorandum in response to the Supreme Court's decision in Starbucks Corp. v. McKinney, which set a uniform standard for all federal courts to apply to Section 10(j) injunction petitions and directed the plurality of circuits applying low burdens on the NLRB petitioning for Section 10(j) injunctions to consider the NLRB's likelihood of success on the merits and to evaluate any factual conflicts or difficult questions of law (144 S.Ct. 1570 (June 13, 2024)). The General Counsel touted the NLRB's ability to obtain Section 10(j) injunctions at times in the circuits that have been applying the now-uniform standard. (Section 10(j) Injunctive Relief and the U.S. Supreme Court's Decision in Starbucks Corp. v. McKinney, NLRB Gen. Counsel Mem. GC 24-05, (July 16, 2024; for more information on Starbucks v. McKinney and the NLRB's use of Section 10(j0 injunctions, see Article, The Supreme Court Settles the Standard for Granting the NLRB a Section 10(j) Injunction).)
  • July 16, 2024: The FLRA invited interested parties to file briefs as amicus curiae addressing how the FLRA should apply its decision in Naval Facilities Engineering Service Center, Port Hueneme, California (50 FLRA 363 (1995)), to determine whether an election is necessary to determine representation of an appropriate bargaining unit following an agency reorganization. More specifically, the FLRA seeks amici briefs on whether the Federal Service Labor-Management Relations Statute (FSLRMS) permits the FLRA Authority to combine employees exclusively represented by an affiliate of a parent union with employees exclusively represented by the parent union or another affiliate of the parent union. The briefs must be mailed or delivered to a specified FLRA address and submitted by August 15, 2024. (FLRA, Notice of Opportunity To Submit Amici Curiae Briefs in a Representation Proceeding Pending Before the Federal Labor Relations Authority, 89 Fed. Reg. 57894 (July 16, 2024).)
  • July 9, 2024: In Lion Elastomers, L.L.C. v. NLRB, the Fifth Circuit held that the NLRB violated the mandate rule by using a remand, which it sought from the court to apply a new legal standard from General Motors LLC, to instead issue a supplemental decision overruling General Motors (Supplemental Decision). The court also held that the NLRB violated the employer's due-process rights by overturning General Motors within the case without affording the employer an opportunity to be heard concerning that issue (see General Motors LLC, 369 N.L.R.B. No. 127 (July 21, 2020), overruled by Lion Elastomers LLC, 372 N.L.R.B. No. 83 (May 1, 2023)). The court vacated the Supplemental Decision and remanded the case to the NLRB to apply General Motors.
    General Motors replaced three setting-specific standards for evaluating the lawfulness of discipline imposed on employees who engage in offensive or abusive behavior in the course of union or other concerted activity. Under General Motors, for approximately three years, the NLRB applied the Wright Line burden-shifting causation test, analogous to the McDonnell Douglas burden-shifting standard used to prove an unlawful motive in employment discrimination or retaliation cases under anti-discrimination statutes. The Fifth Circuit's decision puts in flux an already complicated area of law. Cases applying General Motors and cases applying the setting-specific standards the panel (Board) heading the NLRB's adjudicative functions approved in the Supplemental Decision both are at various phases of Board and appellate court review. Some of those cases may be remanded to the ALJs or Board, respectively. It can also be expected that:
    • the current General Counsel will ask the Board to apply the setting-specific tests to pending abusive-employee-conduct amid-protected-activity discipline cases; and
    • the current Board majority might invite parties and amicus curiae to file briefs in an appropriate pending case so it may effectively restore the holding of the now-vacated Supplemental Decision.
  • July 9, 2024: In GHG Management LLC v. NLRB, the DC Circuit held that the panel (Board) heading the NLRB's election and adjudicative functions failed to provide a coherent explanation for why it required an employer requesting the Board set aside a mail-ballot union representation election to show a reasonable doubt about the election's validity and fairness rather than make a lesser showing of prejudice, in light of Board precedent requiring that lesser showing when NLRB regional office conduct leads to possible outcome-determinative disenfranchisement. In the case, the union and employer cannabis dispensary agreed to an extension of the deadline for the NLRB to receive employees' mailed ballots because of COVID-19-era delays in mail delivery. During the extension, the NLRB agent overseeing the election informed the employer and union that the NLRB had received ballots from all employees who said they had mailed them, omitting that the NLRB had not yet received the ballot of an employee who said she intended to mail-in her ballot. Neither party therefore requested a second extension and the ballot count resulting in a one-vote union win occurred, as previously scheduled, three days later, one day before the unmentioned voter's mail ballot arrived. The employer refused to bargain with the union to challenge the NLRB's certification of the union as representative. The court granted the employer's petition for review and denied the NLRB's cross-application for enforcement of its order requiring the employer to bargain, holding that the Board on remand must justify or reconsider its application of the possible-disenfranchisement and reasonable-doubt tests to the employer's election objections in the case. (GHG Mgmt. LLC v. NLRB, (D.C. Cir. July 9, 2024).)
  • July 9, 2024: In Odell v. Kalitta Air, LLC, the Sixth Circuit held that pilots' claims that their air-carrier employer failed to reasonably accommodate their religious beliefs under Title VII and disabilities under the Americans with Disabilities Act (ADA) concerning implementation of COVID-19 vaccine mandates under Executive Order 14042 were preempted by the Railway Labor Act (RLA) because they could not be resolved without interpreting the collective bargaining agreement (CBA) covering the pilots. These claims were minor disputes under the RLA, which must be resolved by arbitration rather than by a federal court. The court likewise held that the pilots' regarded-as or perceived-disability discrimination claim could not be resolved without interpreting the CBA to determine whether compliance with the CBA was more than a pretextual justification for the employer's actions. The court also held that the pilots inadequately pled and asserted intention discrimination claims, and therefore forfeited those claims. (Odell v. Kalitta Air, LLC, (6th Cir. July 9, 2024).)
  • June 13, 2024: The US Supreme Court held that federal district courts considering a request by the National Labor Relations Board (NLRB) for temporary injunctive relief pursuant to Section 10(j) of the National Labor Relations Act (NLRA) must apply the traditional four-factor test articulated in Winter v. Natural Resources Defense Council, Inc. (555 U.S. 7 (2008)), rejecting the less stringent reasonable-cause standard advocated by the NLRB and resolving a circuit split. Accordingly, to succeed on a petition for preliminary injunctive relief under Section 10(j), the NLRB must make a clear showing that: (i) there is a likelihood of success on the merits; (ii) irreparable harm is likely to result in the absence of the requested relief; (iii) the balance of equities tips in the NLRB's favor; and (iv) the injunction is in the public interest. (Starbucks Corp. v. McKinney, (U.S. June 13, 2024).)

Legislation

Notable State and Local Legislation

Georgia

  • April 22, 2024: Governor Brian Kemp signed SB 362 foreclosing eligibility for certain state economic development incentives for employers that:
    • voluntarily recognize a union based solely on an authorization card check instead of a secret ballot election;
    • voluntarily disclose employees' personal contact information to a labor organization without their prior written consent, except as required by federal or state law; or
    • require a subcontractor to do the same.
    Employers that engage in any of these activities on a project on which an economic development incentive is based must repay all incentives received over the project's life. The law, which is effective on July 1, 2024, applies to agreements between the state and an employer executed on or after January 1, 2025.

New Jersey

  • January 8, 2024: Governor Phil Murphy signed S1438/A5794 authorizing a union to file a civil action against a contractor or subcontractor on a public works project seeking unpaid wages owed to a worker, whether or not the union represents workers employed on the project, provided that the union first obtains written consent to the representation from any worker who is not a member of the union. The legislation amends New Jersey's prevailing wage statute, which previously authorized only the Commissioner of Labor and Workforce Development or a joint labor-management cooperation committee that includes a union representing any worker employed on the project to bring wage claim suits (N.J.S.A. 34:11-67.1). The amendment is effective immediately. For more information, see the Governor's press release and signing statement.

Vermont

  • May 28, 2024: Vermont enacted S.102 prohibiting employers from taking or threatening to take any adverse employment action against employees who decline to attend or participate in employer-sponsored meetings intended to communicate the employer's opinion about political matters, defined to include matters relating to the decision to join or support a labor organization (commonly referred to as "captive audience meetings"). The law expressly preserves employers' rights to communicate information to employees that is necessary for the performance of their job duties and conduct meetings concerning political matters where employee attendance is entirely voluntary. Employees aggrieved by a violation of the law may bring a civil action seeking compensatory and punitive damages or equitable relief. The law, which Governor Phil Scott allowed to become law without his signature, is effective on July 1, 2024.

Washington

  • March 28, 2024: Governor Jay Inslee signed SB 5778 creating the Employee Free Choice Act, which prohibits employers from taking any adverse employment action against employees who refuse to attend or participate in employer-sponsored meetings intended to communicate the employer's opinion about political matters, defined to include matters relating to the decision to join or support a labor association or organization (commonly referred to as "captive audience meetings"). The law preserves employers' right to conduct meetings concerning political matters where employee attendance is strictly voluntary. Aggrieved employees may bring a civil action within 90 days of an alleged violation. The law is effective on June 6, 2024.

Federal Administrative Agency Regulations and Rulemaking

National Labor Relations Board (NLRB)

Occupational Safety and Health Administration (OSHA)

  • April 1, 2024: OSHA issued a final rule amending 29 C.F.R. § 1903.8(c) to authorize employees to designate a non-employee third party as their representative to accompany an OSHA compliance inspector during a physical workplace inspection if the compliance officer determines that the third party's participation is reasonably necessary to conduct an effective and thorough inspection, which may involve consideration of the third party's relevant knowledge, skills, or experience with hazards or other conditions in the workplace, or language or communication skills. The rule's broad language therefore allows employees to designate a union representative as their walkaround representative in both unionized and nonunionized workplaces. The final rule is effective on May 31, 2024. (89 Fed. Reg. 22558 (Apr. 1, 2024).)

Federal Labor Relations Authority (FLRA)

  • March 26, 2024: The FLRA's Federal Service Impasses Panel (FSIP) issued a final rule revising the methods by which the public may obtain specific forms from the FSIP and submit those forms and other documents during FSIP proceedings. Specifically, the rule encourages parties to utilize the FLRA’s eFiling system by allowing in-person filing only with the FSIP’s permission and by advance appointment. The final rule adopts the proposed rule published on February 16, 2024 and is effective on April 25, 2024. (89 Fed. Reg. 20843 (Mar. 26, 2024).)
  • February 16, 2024: The FSIP issued a proposed rule to revise the methods by which the public may obtain specific forms from the FSIP and submit those forms and other documents during FSIP proceedings. Specifically, the proposal encourages parties to utilize the FLRA’s eFiling system by allowing in-person filing only with the FSIP’s permission and by advance appointment. Comments on the proposed rule are due on March 18, 2024. (89 Fed. Reg. 12287 (Feb. 16, 2024).)
  • February 15, 2024: The FLRA, Office of the General Counsel of the FLRA, and FSIP issued a final rule updating their addresses and telephone numbers and eliminating the regulatory requirement to submit four copies of filed original documents. The rule is effective on March 1, 2024. (89 Fed. Reg. 11701 (Feb. 15, 2024).)

Federal Administrative Agency Operations

Office of the General Counsel of the National Labor Relations Board

  • July 16, 2024: The General Counsel issued Memorandum GC 24-05, affirming that the agency will continue to aggressively seek Section 10(j) injunctions to preserve the status quo and maintain the efficacy of subsequent Board final orders. The General Counsel issued the memorandum in response to the Supreme Court's decision in Starbucks Corp. v. McKinney, which set a uniform standard for all federal courts to apply to Section 10(j) injunction petitions and directed the plurality of circuits applying low burdens on the NLRB petitioning for Section 10(j) injunctions to consider the NLRB's likelihood of success on the merits and to evaluate any factual conflicts or difficult questions of law (144 S.Ct. 1570 (June 13, 2024)). The General Counsel touted the NLRB's ability to obtain Section 10(j) injunctions at times in the circuits that have been applying the now-uniform standard. (Section 10(j) Injunctive Relief and the U.S. Supreme Court's Decision in Starbucks Corp. v. McKinney, NLRB Gen. Counsel Mem. GC 24-05, (July 16, 2024; for more information on Starbucks v. McKinney and the NLRB's use of Section 10(j0 injunctions, see Article, The Supreme Court Settles the Standard for Granting the NLRB a Section 10(j) Injunction).)
  • April 29, 2024: The General Counsel issued an updated version of Memorandum GC 24-01 providing guidance concerning the application of Cemex Construction Materials Pacific, LLC (372 N.L.R.B. No. 130 (Aug. 25, 2023), motion for reconsideration denied 372 N.L.R.B. No. 157 (Nov. 13, 2023)). Although the revised memorandum largely retains the language from the original version released in November 2023, the General Counsel has amended the memorandum to clarify that:
    (Guidance in Response to Inquiries about the Board's Decision in Cemex Construction Materials Pacific, LLC, NLRB Gen. Counsel Mem. GC 24-01 (revised), (Apr. 29, 2024); for more information on this memorandum, see 2023 Traditional Labor Law Developments Tracker: Office of the General Counsel of the National Labor Relations Board.)
  • April 8, 2024: The General Counsel issued Memorandum GC 24-04 directing NLRB Regional Offices to seek full make-whole remedies for employees harmed by a work rule or contract term that violates Section 8(a)(1) of the NLRA, regardless of whether those employees are identified during the ULP investigation, in addition to the rescission of the unlawful rule or term itself. Specifically, the General Counsel instructs Regional Directors to:
    • pursue settlements that include make-whole relief for employees who were disciplined or subject to legal enforcement based on an unlawful work rule or contract term after the start of the Section 10(b) period where the disciplinary or enforcement action targeted employee conduct implicating Section 7 concerns, unless the employer can demonstrate that the conduct actually interfered with the employer's operations and this interference was the basis for the employer's action rather than reliance on the unlawful rule or contract term;
    • during settlement efforts, request and obtain information from the employer to identify any employees subjected to discipline or legal enforcement based on the unlawful rule or contract term;
    • in cases that do not settle, urge the panel (Board) heading the NLRB's judicial and election functions to ensure that employees who would have been entitled to make-whole relief under Continental Group had their discipline been alleged as an independent violation in the complaint may obtain expungement and backpay in compliance proceedings as part of remedying the unlawful rule or contract term (357 N.L.R.B. 409 (2011)); and
    • urge the Board to adopt a similar remedial approach for employer-instituted enforcement actions based on an unlawful contract term that provides for withdrawal of the legal action and recovery by employees of legal fees and costs. The memorandum also states in a footnote that further guidance on remedial relief involving non-compete and other restrictive provisions is forthcoming.
    (Securing Full Remedies for All Victims of Unlawful Conduct, NLRB Gen. Counsel Mem. GC 24-04, (Apr. 8, 2024).)
  • April 2, 2024: The Division of Operations-Management issued Memorandum OM 24-05 advising that the NLRB's interest rate for the third quarter of Fiscal Year 2024 (April 1 to June 30, 2024) remains at 8%.
  • March 26, 2024: The NLRB announced a partnership with the Federal Trade Commission (FTC) and other agencies to bolster the NLRB's technical capacity and expand its cross-agency collaborations. The NLRB intends to coordinate agency resources to share best practices and elevate each agency's missions. The FTC's parallel announcement indicates that other participating agencies include the Consumer Financial Protection Bureau (CFPB), Federal Communications Commission, Equal Employment Opportunity Commission (EEOC), California Privacy Protection Agency, and Census Bureau.
  • March 12, 2024: The NLRB announced a partnership with the government of the Dominican Republic to strengthen ties with its embassies and consulates in the US and ensure that immigrant workers can freely exercise their NLRA rights.
  • March 4, 2024: The General Counsel issued Memorandum GC 24-03 setting out responses to questions presented by the American Bar Association's Committee on Practice and Procedure Under the NLRA in conjunction with the Committee's 2024 Midwinter Meeting. Specifically, these questions address updated statistical information, the status of various NLRB priorities and plans, including pending rulemaking initiatives, and other matters of interest or concern raised by member practitioners. (Report on the Midwinter Meeting of the Practice and Procedure Under the National Labor Relations Act Committee of the ABA Labor and Employment Law Section, NLRB Gen. Counsel Mem. GC 24-03, (Mar. 4, 2024).)
  • January 31, 2024: The Division of Advice (Advice) released an advice memorandum examining the lawfulness of various provisions contained in an employer's standard employment agreement. First, Advice concluded that the self-described "non-compete" provision, which prohibited the employee from soliciting the employer's customers for one year following separation from employment, did not implicate the Section 7 concerns raised by the NLRB General Counsel in Memorandum GC 23-08 or otherwise violate the NLRA because its limited restrictions did not foreclose the employee from accessing other employment opportunities (Non-Compete Agreements that Violate the National Labor Relations Act, NLRB Gen. Counsel Mem. GC 23-08, (May 30, 2023); for more information on Memorandum GC 23-08, see 2023 Traditional Labor Law Developments Tracker: Office of the General Counsel of the National Labor Relations Board). Advice also analyzed several provisions under the standard for assessing the lawfulness of work rules that do not expressly restrict employees' protected concerted activity recently adopted by the Board in Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2, 2023), concluding that:
    • the confidentiality provision, which prohibited the disclosure or use of information relating to the business of the employer or its customers, was lawful because it focused solely on trade secrets and other proprietary information and therefore could not reasonably be interpreted to chill the exercise of Section 7 rights;
    • the termination provision, which required the surrender of all company property on termination of employment, was lawful because it did not implicate information that may be utilized in connection with protected concerted activity and therefore could not reasonably be interpreted to chill the exercise of Section 7 rights; and
    • the employee duties provision, which prohibited the employee from engaging in activity competitive with or adverse to the employer's business or welfare, was unlawfully overbroad under Stericycle because economically dependent employees reasonably could read its language to preclude union organizing or other protected concerted activity that the employer deemed adverse.
    Advice further noted that because the employer required all employees to sign identical employment agreements, the provisions considered in the instant case constitute policies or rules properly subject to the Stericycle analysis. (Promotional Concepts, Case No. 07-CA-322063, (Dec. 7, 2023); for more information on Stericycle, see Article, The NLRB's New, Developing Standard for Assessing Lawfulness of Work Rules).
  • January 3, 2024: The Division of Operations-Management issued Memorandum OM 24-03 advising that the NLRB's interest rate for the second quarter of Fiscal Year 2024 (January 1 to March 31, 2024) remains at 8%.

Division of Judges of the National Labor Relations Board

  • April 3, 2024: The Division of Judges released an updated Bench Book. The April 2024 edition updates the previous April 2023 edition with citations to additional Board and court decisions and includes the most recent amendments to the Federal Rules of Evidence.

US Bureau of Labor Statistics, Department of Labor (BLS)

  • January 23, 2024: The BLS published a news release on its annual data on union membership in the US for 2023. Among many other things, the BLS reported that 10.0% of wage and salary workers were union members in 2023, down from 10.1% in 2022. Although the number of union workers employed in the private sector increased by 191,000 to 7.4 million in 2023, increases in the total number of private sector wage and salary workers outpaced that growth resulting in a virtually unchanged union membership rate. 7.0 million or 32.5% of public sector employees belonged to unions in 2023, while 7.4 million or 6% of private sector employees were union members. The 2023 unionization rate (10.0%) is the lowest recorded since the BLS started analyzing this data from its Current Population Survey in 1983.

Office of Labor-Management Standards, US Department of Labor (OLMS)

  • March 5, 2024: The Office of Labor-Management Standards (OLMS) posted a fact sheet on its website to assist labor relations consultants when filing Form LM-20 reports. Form LM-20 reports provide details about consultant agreements with employers for persuader or surveillance activity. (See OLMS Fact Sheet: Avoiding Common Errors on the Form LM-20 Report.)

Federal Labor Relations Authority (FLRA)

Interpretations and Applications of the National Labor Relations Act, as Amended, and NLRB Regulations

NLRA Operation and Coverage and NLRB Jurisdiction and Preemption

Statutory Inclusions and Exclusions and NLRB Jurisdiction

NLRA Preemption

  • January 5, 2024: The Second Circuit held that the NLRA does not preempt New York City's Wrongful Discharge Law. The court held that the law, which prohibits large fast-food chains in New York City from arbitrarily terminating and reducing the hours of fast-food workers and provides those workers with the option to arbitrate claims of alleged violations, sets minimum labor standards that regulate the substance, rather than the process, of collective bargaining negotiations. Therefore, the NLRA does not preempt the law under Machinists preemption (Lodge 76, Int'l Ass'n of Machinists v. Wisconsin Emp. Rels. Comm'n, 427 U.S. 132 (1976)). The court held that it was premature to consider an "as-applied" challenge to how New York City might hypothetically apply the law to impair employers' rights under the NLRA to engage in defensive or offensive lockouts in the course of collective bargaining. The court also held that the law is not unconstitutional under the dormant Commerce Clause because it applies to fast-food establishments based on the size of the chain, not based on whether the establishment engages in interstate commerce. The law does not operate to benefit in-state economic interests by burdening out-of-state competitors. The Wrongful Discharge Law took effect on July 4, 2021. (N.Y.C. Admin. Code §§ 20-1271-75). (Rest. L. Ctr. v. City of New York, (2d Cir. Jan. 5, 2024).)

Unfair Labor Practices

Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights

  • July 9, 2024: In Lion Elastomers, L.L.C. v. NLRB, the Fifth Circuit held that the NLRB violated the mandate rule by using a remand, which it sought from the court to apply a new legal standard from General Motors LLC, to instead issue a supplemental decision overruling General Motors (Supplemental Decision). The court also held that the NLRB violated the employer's due-process rights by overturning General Motors within the case without affording the employer an opportunity to be heard concerning that issue (see General Motors LLC, 369 N.L.R.B. No. 127 (July 21, 2020), overruled by Lion Elastomers LLC, 372 N.L.R.B. No. 83 (May 1, 2023)). The court vacated the Supplemental Decision and remanded the case to the NLRB to apply General Motors.
    General Motors replaced three setting-specific standards for evaluating the lawfulness of discipline imposed on employees who engage in offensive or abusive behavior in the course of union or other concerted activity. Under General Motors, for approximately three years, the NLRB applied the Wright Line burden-shifting causation test, analogous to the McDonnell Douglas burden-shifting standard used to prove an unlawful motive in employment discrimination or retaliation cases under anti-discrimination statutes. The Fifth Circuit's decision puts in flux an already complicated area of law. Cases applying General Motors and cases applying the setting-specific standards the panel (Board) heading the NLRB's adjudicative functions approved in the Supplemental Decision both are at various phases of Board and appellate court review. Some of those cases may be remanded to the ALJs or Board, respectively. It can also be expected that:
    • the current General Counsel will ask the Board to apply the setting-specific tests to pending abusive-employee-conduct amid-protected-activity discipline cases; and
    • the current Board majority might invite parties and amicus curiae to file briefs in an appropriate pending case so it may effectively restore the holding of the now-vacated Supplemental Decision.
  • March 26, 2024: The DC Circuit held that the NLRB's explanations for its unlawful impression of surveillance and unlawfully discriminatory discipline rulings were "nonsense" and that the rulings were not supported by substantial evidence. In particular, the DC Circuit held that a reasonable driver would have no basis for thinking he was being watched through his truck camera to determine if he were engaging in any union or other protected activities, given that:
    • a driver knowing, based on a disseminated employee handbook and driver manual, they may be monitored at any time, without warning, and for any reason, by vehicle cameras that "must remain on at all times" has every reason to expect to be watched while on the job and no reason to assume that any particular instance of monitoring reflects an employer's attempt to weed out or suppress union activities (compare with Frontier Tel. of Rochester, Inc., 344 N.L.R.B. 1270, 1276 (2005), enforced, 181 F. App'x 85 (2d Cir. 2006));
    • the NLRB unreasonably determined there was no evidence that the driver violated the driver manual instruction that truck cameras must remain on at all times by blocking the camera to prevent it from functioning during his lunch break;
    • any assumption the driver could have made about being monitored in these circumstances for union-related reasons would have been based not on reasonable inferences, but on "speculation" (see Cannon Indus., 291 N.L.R.B. 632, 638 (1988)); and
    • there was scarcely anything in the record suggesting that a single phrase in one text message from a manager advising a driver that it was against company rules to block an inward-facing camera, which was on a single subject the manager never mentioned again, did not refer to union activity, and was not sent when the manager could have known the worker to be on a lunch break, would have come across to a reasonable employee as out of the ordinary, coercive, or intimidating (compare with Stoughton Trailers, Inc., 234 N.L.R.B. 1203, 1205–07 (1978) and Bellagio, LLC v. NLRB, 854 F.3d 703, 712 (D.C. Cir. 2017)).
    The DC Circuit also held that the NLRB General Counsel failed to show that the employer's written warning to another driver- an employee who supported union organizing several years earlier- for making comments to a coworker violative of the company's EEO policy was connected to the employer's purported anti-union animus. The NLRB erred in finding an unlawful motive by relying on:
    • the text message sent to the other driver, which was not a labor violation and did not tend to show that the employer had anti-union animus;
    • unsubstantiated and unproven allegations in settled ULP charges (compare with St. Mary's Nursing Home, 342 N.L.R.B. 979, 980 (2004), enforced, 240 F. App'x 8 (6th Cir. 2007) (record evidence from a settled case may be relevant and admissible for the purpose of determining an employer's motive);
    • half-decade old proven misconduct of election interference in the absence of contemporaneous ULPs; and
    • two instances of an employee not receiving a written warning for a first infraction of the EEO policy involving offensive language, where the facts were distinguishable, and the policy afforded the employer flexibility to deviate from progressive discipline principles based on the circumstances.
    The court granted the employer's petition for review, denied the NLRB's cross-application for enforcement, and vacated the NLRB's decision and order. (Stern Produce Co., Inc. v. NLRB, (D.C. Cir. Mar. 26, 2024), vacating 372 N.L.R.B. No. 74 (Apr. 11, 2023).)
  • March 7, 2024: The Fifth Circuit held that substantial evidence supported the NLRB's conclusion that:
    • registered nurse case managers at a home healthcare provider were employees rather than supervisors; and
    • the employer unlawfully terminated a registered nurse for raising concerns about COVID-19 policies and hazard compensation and conducted coercive investigations.
    However, the court held that:
    • substantial evidence did not support the NLRB's conclusions that the employer unlawfully threatened the discharged nurse; and
    • the NLRB ignored its precedent when holding that by discharging the nurse according to an individual discipline plan, the employer effectively instituted an unlawful oral workplace rule prohibiting discussions of wages and working conditions. NLRB and court precedents hold that an employer policy is a workplace rule only if it is communicated to more than one employee or conveyed with instructions to disseminate the policy to other employees, neither which occurred. (Flamingo Las Vegas Operating Co., 360 N.L.R.B. 243, 243 (2014))
  • March 1, 2024: The DC Circuit held that an employer does not engage in unlawful surveillance of its employees by directing its managers to distributes flyers communicating the employer's views about unionization, discuss the content of those flyers, observe and notes employees' immediate reactions to those flyers, and report the employees' reactions. The court held that these actions, absent evidence of any coercion or threats, are protected by Section 8(c) of the NLRA and do not constitute unlawful surveillance. The court rejected the NLRB's broad interpretation of unlawful surveillance and its analysis likening these acts to unlawful interrogation or polling because:
    • the employees were not asked to say or do anything that would reveal their views; and
    • management observed only what is inevitably witnessed in any personal encounter.
    However, the court held that substantial evidence supported the NLRB's conclusions that the employer's program of increasing manager visibility and observation was atypical monitoring constituting unlawful surveillance and that the employer unlawfully suspended and discharged two employees for their union activities, one of whom it also threatened and coercively interrogated. Additionally, it affirmed that the employer violated Section 8(a)(1) by discharging a supervisor for refusing to commit unlawful surveillance. (NCRNC, LLC v. NLRB, 94 F.4th 67 (D.C. Cir. 2024).)
  • February 21, 2024: In a 3-1 decision (Chairman McFerran and Members Prouty and Wilcox), the Board held that an employee's refusal to remove a hand-drawn "Black Lives Matter" (BLM) marking from their company-issued apron constituted protected concerted activity under Section 7 of the NLRA. Specifically, the majority concluded that the employee's continued display of the marking was:
    • concerted, because it was a logical outgrowth of an ongoing group complaint raised by the employee and several coworkers concerning racially discriminatory working conditions at their store and the employer's perceived failure to address those concerns; and
    • for mutual aid or protection, because the evidence established that at least one purpose for the employee's action was to continue their protest of racial discrimination at the workplace.
    The majority further concluded that the employer failed to establish that special circumstances justified its interference with Section 7 rights, rejecting the employer's arguments that the display of BLM markings interferes with the employer's public image, jeopardizes employee safety, and exacerbates employee dissension. Accordingly, the majority found that the employer violated Section 8(a)(1) of the NLRA by directing the employee to remove the marking, applying its facially neutral dress code and apron policy to prohibit the employee from wearing the marking, and constructively discharging the employee for refusing to remove the marking. Member Kaplan dissented. (Home Depot USA, Inc., 373 N.L.R.B. No. 25, (Feb. 21, 2024).)

Section 8(a)(2): Employer Dominance Over or Unlawful Assistance to Union

Section 8(a)(3): Employer Discrimination to Encourage or Discourage Union Membership

  • July 9, 2024: In Lion Elastomers, L.L.C. v. NLRB, the Fifth Circuit held that the NLRB violated the mandate rule by using a remand, which it sought from the court to apply a new legal standard from General Motors LLC, to instead issue a supplemental decision overruling General Motors (Supplemental Decision). The court also held that the NLRB violated the employer's due-process rights by overturning General Motors within the case without affording the employer an opportunity to be heard concerning that issue (see General Motors LLC, 369 N.L.R.B. No. 127 (July 21, 2020), overruled by Lion Elastomers LLC, 372 N.L.R.B. No. 83 (May 1, 2023)). The court vacated the Supplemental Decision and remanded the case to the NLRB to apply General Motors.
    General Motors replaced three setting-specific standards for evaluating the lawfulness of discipline imposed on employees who engage in offensive or abusive behavior in the course of union or other concerted activity. Under General Motors, for approximately three years, the NLRB applied the Wright Line burden-shifting causation test, analogous to the McDonnell Douglas burden-shifting standard used to prove an unlawful motive in employment discrimination or retaliation cases under anti-discrimination statutes. The Fifth Circuit's decision puts in flux an already complicated area of law. Cases applying General Motors and cases applying the setting-specific standards the panel (Board) heading the NLRB's adjudicative functions approved in the Supplemental Decision both are at various phases of Board and appellate court review. Some of those cases may be remanded to the ALJs or Board, respectively. It can also be expected that:
    • the current General Counsel will ask the Board to apply the setting-specific tests to pending abusive-employee-conduct amid-protected-activity discipline cases; and
    • the current Board majority might invite parties and amicus curiae to file briefs in an appropriate pending case so it may effectively restore the holding of the now-vacated Supplemental Decision.
  • May 31, 2024: The DC Circuit denied enforcement of the NLRB's order finding that the employer violated Section 8(a)(3) of the NLRA when it fired an employee union organizer, holding that substantial evidence failed to support the Board's conclusion that the employer was motivated by anti-union animus rather than the employee's repeated performance issues and observing that:
    • the employer strictly adhered to its established discipline policy, notwithstanding language in the policy reserving the employer's discretion to combine or skip progressive disciplinary steps; and
    • the record contained no evidence of disparate treatment—if anything, the fired employee received more lenient treatment than the comparator considered by the Board.
    The court also refused to enforce extraordinary notice-reading and union-access remedies that Board justified based on the erroneous unlawful-discharge finding. (Absolute Healthcare v. NLRB, 317 (D.C. Cir. May 31, 2024)).
  • March 26, 2024: The DC Circuit held that the NLRB's explanations for its unlawful impression of surveillance and unlawfully discriminatory discipline rulings were "nonsense" and that the rulings were not supported by substantial evidence. For the unlawful discipline ruling, the DC Circuit held that the NLRB General Counsel failed to show that the employer's written warning to a driver- an employee who supported union organizing several years earlier- for making comments to a coworker violative of the company's EEO policy was connected to the employer's purported anti-union animus. The NLRB erred in finding an unlawful motive based on:
    • a text message sent to another driver, which the court separately held was not a labor violation and did not otherwise tend to show that the employer had anti-union animus;
    • unsubstantiated and unproven allegations in settled ULP charges (compare with St. Mary's Nursing Home, 342 N.L.R.B. 979, 980 (2004), enforced, 240 F. App'x 8 (6th Cir. 2007) (record evidence from a settled case may be relevant and admissible for the purpose of determining an employer's motive);
    • half-decade old proven misconduct of election interference in the absence of contemporaneous ULPs; and
    • two instances of an employee not receiving a written warning for a first infraction of the EEO policy involving offensive language, where the facts were distinguishable, and the policy afforded the employer flexibility to deviate from progressive discipline principles based on the circumstances.
    The court granted the employer's petition for review, denied the NLRB's cross-application for enforcement, and vacated the NLRB's decision and order. (Stern Produce Co., Inc. v. NLRB, (D.C. Cir. Mar. 26, 2024), vacating 372 N.L.R.B. No. 74 (Apr. 11, 2023).)

Section 8(a)(5): Employer Refusal to Bargain

  • July 9, 2024: In GHG Management LLC v. NLRB, the DC Circuit held that the panel (Board) heading the NLRB's election and adjudicative functions failed to provide a coherent explanation for why it required an employer requesting the Board set aside a mail-ballot union representation election to show a reasonable doubt about the election's validity and fairness rather than make a lesser showing of prejudice, in light of Board precedent requiring that lesser showing when NLRB regional office conduct leads to possible outcome-determinative disenfranchisement. In the case, the union and employer cannabis dispensary agreed to an extension of the deadline for the NLRB to receive employees' mailed ballots because of COVID-19-era delays in mail delivery. During the extension, the NLRB agent overseeing the election informed the employer and union that the NLRB had received ballots from all employees who said they had mailed them, omitting that the NLRB had not yet received the ballot of an employee who said she intended to mail-in her ballot. Neither party therefore requested a second extension and the ballot count resulting in a one-vote union win occurred, as previously scheduled, three days later, one day before the unmentioned voter's mail ballot arrived. The employer refused to bargain with the union to challenge the NLRB's certification of the union as representative. The court granted the employer's petition for review and denied the NLRB's cross-application for enforcement of its order requiring the employer to bargain, holding that the Board on remand must justify or reconsider its application of the possible-disenfranchisement and reasonable-doubt tests to the employer's election objections in the case. (GHG Mgmt. LLC v. NLRB, (D.C. Cir. July 9, 2024).)
  • May 24, 2024: The Fifth Circuit held that substantial evidence did not support the NLRB's conclusions that:
    • the employer's actions, including failing to provide information that an NLRB administrative law judge found would not have aided the union in collective bargaining, precluded a lawful overall impasse;
    • the employer unlawfully implemented its last, best, and final offer without reaching a lawful overall impasse; and
    • the employer unlawfully laid off bargaining unit employees in accordance with the layoff provisions in its final offer.
    Additionally, while the court affirmed the NLRB's largely uncontested conclusions that the employer failed to provide relevant requested information to the union, the court modified the Board's order so that the employer was not required to provide years-old information relating primarily to employees who may never work for the employer again. (Thryv, Inc. v. NLRB, (5th Cir. May 24, 2024).)
    With the ULP holdings relating to the layoffs vacated, the court did not address the employer's challenges to the NLRB's novel imposition of enhanced remedies for the laid-off workers, including consequential-damages-like awards (see Thryv, Inc., 372 N.L.R.B. No. 22 (Dec. 13, 2022); see also 2022 Traditional Labor Law Developments Tracker: Remedies; Legal Update, NLRB Invites Briefs on Creating Consequential Damages Remedy for Employees). The NLRB's authority to impose these remedies is likely to be tested in future petitions for review to federal circuit courts.
  • May 8, 2024: In a 2-1 decision (Chairman McFerran and Member Prouty), the Board held that the employer engaged in bad-faith bargaining for a successor collective bargaining agreement (CBA) in violation of Section 8(a)(5) of the NLRA where the totality of its conduct evidenced efforts to frustrate the collective bargaining process, concluding that the totality of the employer's conduct evidenced bad faith. Specifically, the majority concluded that the employer's combined proposals for a no-strike clause, a provision eliminating binding arbitration, and an expansive management rights clause would have left employees and the union with substantially fewer rights and protections than provided by law without a contract. The majority's decision largely tracks Chairman McFerran's dissent in an earlier decision in this proceeding, in which a prior panel majority concluded that the employer engaged in lawful hard bargaining and which was subsequently vacated due to the improper participation of then-Member Emanuel (see 370 N.L.R.B. No. 118 (Apr. 30, 2021); 372 N.L.R.B. No. 109 (July 25, 2023)). Member Kaplan dissented. (Dist. Hosp. Partners, 373 N.L.R.B. No. 55 (May 8, 2023).)
  • March 4, 2024: The Third Circuit concluded that the NLRB majority's decision to overrule an administrative law judge's dismissal of a bevy of ULP allegations concerning employer communications to employees about their rights to withdraw dues checkoff authorizations and the employer's hard bargaining and later declining to bargain with the union after a majority of the bargaining unit presented it with a union disaffection petition was not supported by substantial evidence. The court granted the employer's petition for review and denied the NLRB's cross-application for enforcement of its order, which would have required the employer to bargain with the union (see New Concepts for Living, Inc., 371 N.L.R.B. No. 157 (Sept. 30, 2022)). This case highlights the perils for employers trying to comply with the NLRA when bargaining unit employees become dissatisfied with their long-absent union—in this case, a union that continued to collect dues but did not seek to negotiate a successor CBA for over two years after the initial CBA expired. A concurring opinion notes a disjunction between Section 10(e) of the NLRA and the NLRB's rules and regulations concerning preserving issues for court review (29 U.S.C. § 160(e); 29 C.F.R. § 102.46; see Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982)). (New Concepts for Living, Inc. v. NLRB, (3d Cir. Mar. 4, 2024).)
  • February 20, 2024: The Ninth Circuit granted enforcement of the NLRB's order reversing agency precedent and holding that employers may not unilaterally cease dues checkoff after the CBA creating the checkoff obligation expires, concluding that the NLRB adequately explained its reasoning for overruling its prior decision and articulated a rational interpretation of the NLRA that was consistent with relevant Ninth Circuit precedent. The court also rejected the employer's argument that the NLRB acted outside the scope of its mandate on remand by reversing its position, noting that the mandate did not clearly foreclose reconsideration of the underlying rule regarding an employer's obligation to continue dues checkoff when the governing CBA expires. (Valley Hosp. Med. Ctr., Inc. v. NLRB, 93 F.4th 1120 (9th Cir. 2024), amended and superseded on denial of rehearing en banc by (9th Cir. May 6, 2024)); for more information on the history of this case, see Legal Update, NLRB Restores Longstanding Union Dues Checkoff Rule.)
  • February 16, 2024: The DC Circuit vacated the NLRB's order finding that the employer violated Section 8(a)(5) of the NLRA when it failed to comply with the union's information requests, holding that the NLRB acted contrary to law by refusing to consider as a threshold matter the employer's asserted defense that the emergency provision contained in the parties' CBA relieved the employer of its obligation to provide the requested information during the COVID-19 pandemic. The court also rejected the NLRB's reliance on Stericycle, Inc. for the general proposition that a CBA provision excusing an employer's underlying contractual obligation does not eliminate the employer's statutory duty to provide information relevant to a grievance concerning the excused obligation, noting that Stericycle involved a situation in which the excused obligation and the subject of the grievance were different (370 N.L.R.B. No. 89 (Feb. 17, 2021)). Accordingly, the D.C. Circuit remanded the case to the NLRB for consideration of the employer's threshold contractual defense, including whether the employer forfeited or failed to exhaust that defense as to any of the information requests. (Am. Med. Response of Connecticut, Inc. v. NLRB, (D.C. Cir. Feb. 16, 2024).)

Unfair Labor Practice Prosecutions and Remedies

Remedies

  • May 16, 2024: The Board held that an NLRB Regional Director erred by revoking a certification of the results of a representation election that the union lost and to which neither the union nor the employer filed objections or determinative challenges. The Board observed that although that a Regional Director may dismiss a representation petition, subject to reinstatement, when the Regional Director finds merit in ULP charges that would be remedied by an affirmative bargaining order, if proven (see Rieth-Riley Constr. Co., 371 N.L.R.B. No. 109, slip op. at 7 (June 15, 2022)), the Board has never authorized a merit-determination dismissal where a certification of results has been issued in the underlying representation case due to the absence of objections or equivalent ULP charges and the Board's recent decision in Cemex Construction Materials Pacific, LLC does not authorize this procedural step (372 N.L.R.B. No. 130 (Aug. 25, 2023)). The Board further noted that although the General Counsel is seeking a Cemex bargaining order as a remedy for the employer's alleged refusal to bargain, the propriety of such an order and the effect that it may have on the certification of results must be litigated in the ULP proceedings. (Auto-Chlor Sys. of Washington, Inc., 373 N.L.R.B. No. 63 (May 16, 2024).)
  • April 24, 2024: After affirming the NLRB's findings that the employer committed multiple ULPs in violation of the NLRA, the Tenth Circuit held that the NLRB exceeded its statutory authority by ordering the following remedies:
    • back payments to the company profit-sharing plan and union pension fund without offset for the compensation and benefits already provided to affected employees, concluding that the remedy was improperly punitive and insufficiently tailored to the actual harms suffered; and
    • retention of the company profit-sharing program unless the union requested its rescission, concluding that the remedy improperly restricted the parties' basic freedom of contract.
    The court also determined that appellate jurisdiction was proper under Section 10(e) of the NLRA notwithstanding the employer's failure to file a petition for reconsideration of the NLRB's order, distinguishing US Supreme Court precedent and concluding that the agency had an adequate opportunity to consider and address the claims advanced by the employer on appeal regarding the challenged remedies (see Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982); Int'l Ladies' Garment Workers' Union, Upper S. Dep't v. Quality Mfg. Co., 420 U.S. 276, 281 n.3 (1975)). Accordingly, the Tenth Circuit remanded the case to the NLRB for reconsideration of the backpay remedy. (Coreslab Structures (Tulsa), Inc. v. NLRB, (10th Cir. Apr. 24, 2024), vacating and replacing (10th Cir. Feb. 28, 2024).)

US Circuit Courts of Appeals Standards for Granting Enforcement or Review of NLRB Orders

  • April 24, 2024: The Ninth Circuit held that the Board's severance of a discrete remedial issue for further consideration did not render its order nonfinal for purposes of maintaining appellate jurisdiction under Section 10(e) of the NLRA (29 U.S.C. § 160(e)). On the merits, the court concluded that the Regional Director did not abuse his discretion by ordering a mail-ballot election based on an increase in local COVID-19 cases and granted the NLRB's application for enforcement of the Board's order finding that the employer's subsequent refusal to bargain with the certified union violated Section 8(a)(5) of the NLRA. (NLRB v. Siren Retail Corp. dba Starbucks, (9th Cir. Apr. 24, 2024).)
  • April 24, 2024: The Tenth Circuit held that appellate jurisdiction was proper under Section 10(e) of the NLRA notwithstanding the employer's failure to file a petition for reconsideration of the NLRB's order, distinguishing US Supreme Court precedent and concluding that the agency had an adequate opportunity to consider and address the claims advanced by the employer on appeal regarding the challenged remedies (Coreslab Structures (Tulsa), Inc. v. NLRB, (10th Cir. Apr. 24, 2024), vacating and replacing (10th Cir. Feb. 28, 2024)).
  • March 4, 2024: The Third Circuit concluded that the NLRB majority's decision to overrule an administrative law judge's dismissal of a bevy of ULP allegations concerning employer communications to employees about their rights to withdraw dues checkoff authorizations and the employer's hard bargaining and later declining to bargain with the union after a majority of the bargaining unit presented it with a union disaffection petition was not supported by substantial evidence. A concurring opinion notes a disjunction between Section 10(e) of the NLRA and the NLRB's rules and regulations concerning preserving issues for court review (29 U.S.C. § 160(e); 29 C.F.R. § 102.46; see Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982)). (New Concepts for Living, Inc. v. NLRB, (3d Cir. Mar. 4, 2024).)

Standards for US District Courts Granting NLRB Injunctions

  • June 13, 2024: The US Supreme Court held that federal district courts considering a request by the NLRB for temporary injunctive relief pursuant to Section 10(j) of the NLRA must apply the traditional four-factor test articulated in Winter v. Natural Resources Defense Council, Inc. (555 U.S. 7 (2008)), rejecting the less stringent reasonable-cause standard advocated by the NLRB and resolving a circuit split. Accordingly, to succeed on a petition for preliminary injunctive relief under Section 10(j), the NLRB must make a clear showing that: (i) there is a likelihood of success on the merits; (ii) irreparable harm is likely to result in the absence of the requested relief; (iii) the balance of equities tips in the NLRB's favor; and (iv) the injunction is in the public interest. (Starbucks Corp. v. McKinney, (U.S. June 13, 2024).)
  • June 12, 2024: The Second Circuit vacated in part a temporary injunction issued by the district court pursuant to Section 10(j) of the NLRA, holding that the court abused its discretion by failing to adequately explain its conclusion that the cease-and-desist order sought by the NLRB was "just and proper" based on the evidentiary record, particularly because the court simultaneously refused to order reinstatement of the employee whose termination was the subject of the underlying ULP proceeding based on its analysis of the same record. The Second Circuit further noted that the NLRB failed to request a remand to the district court for further analysis and declined to remand the matter sua sponte. (Poor v. Amazon.com Services LLC, (2d Cir. June 12, 2024).)

Union Representation and Elections

Election Objections and Challenges

  • July 9, 2024: In GHG Management LLC v. NLRB, the DC Circuit held that the panel (Board) heading the NLRB's election and adjudicative functions failed to provide a coherent explanation for why it required an employer requesting the Board set aside a mail-ballot union representation election to show a reasonable doubt about the election's validity and fairness rather than make a lesser showing of prejudice, in light of Board precedent requiring that lesser showing when NLRB regional office conduct leads to possible outcome-determinative disenfranchisement. In the case, the union and employer cannabis dispensary agreed to an extension of the deadline for the NLRB to receive employees' mailed ballots because of COVID-19-era delays in mail delivery. During the extension, the NLRB agent overseeing the election informed the employer and union that the NLRB had received ballots from all employees who said they had mailed them, omitting that the NLRB had not yet received the ballot of an employee who said she intended to mail-in her ballot. Neither party therefore requested a second extension and the ballot count resulting in a one-vote union win occurred, as previously scheduled, three days later, one day before the unmentioned voter's mail ballot arrived. The employer refused to bargain with the union to challenge the NLRB's certification of the union as representative. The court granted the employer's petition for review and denied the NLRB's cross-application for enforcement of its order requiring the employer to bargain, holding that the Board on remand must justify or reconsider its application of the possible-disenfranchisement and reasonable-doubt tests to the employer's election objections in the case. (GHG Mgmt. LLC v. NLRB, (D.C. Cir. July 9, 2024).)
  • May 16, 2024: The Board held that an NLRB Regional Director erred by revoking a Certification of Results, which certified the results of a representation election the union lost and to which neither the union nor the employer filed objections or determinative challenges. The Board noted that a Regional Director may dismiss a representation petition, subject to reinstatement, if the Regional Director finds merit in ULP charges that would, if proven, be remedied by an affirmative bargaining order (see Rieth-Riley Constr. Co., 371 N.L.R.B. No. 109, slip op. at 7 (June 15, 2022)). However, the Board has never authorized a Regional Director to effectively engage in a merit-determination dismissal after the Regional Director issued a certification of results in the underlying representation case due to the absence of objections or equivalent ULP charges. The Board held that its decision in Cemex Construction Materials Pacific LLC does not authorize the Regional Director to take that procedural step (372 N.L.R.B. No. 130 (Aug. 25, 2023.). The Board reversed the Regional Director's s Order Revoking Certification of Results and Dismissing the Petition and reinstated the Certification of Results. The Board further noted that although the General Counsel is seeking a Cemex bargaining order as a remedy for the employer's alleged refusal to bargain, the propriety of such an order and any effect that order might have on the certification of results, must be litigated in the ULP proceedings. (Auto-Chlor System of Washington, Inc., 373 N.L.R.B. No. 63 (May 16, 2024).)

Interpretations and Applications of the Railway Labor Act and National Mediation Board Regulations

RLA Operation and Coverage and NMB Jurisdiction

RLA Preemption

  • July 9, 2024: In Odell v. Kalitta Air, LLC, the Sixth Circuit held that pilots' claims that their air-carrier employer failed to reasonably accommodate their religious beliefs under Title VII and disabilities under the Americans with Disabilities Act (ADA) concerning implementation of COVID-19 vaccine mandates under Executive Order 14042 were preempted by the Railway Labor Act (RLA) because they could not be resolved without interpreting the collective bargaining agreement (CBA) covering the pilots. These claims were minor disputes under the RLA, which must be resolved by arbitration rather than by a federal court. The court likewise held that the pilots' regarded-as or perceived-disability discrimination claim could not be resolved without interpreting the CBA to determine whether compliance with the CBA was more than a pretextual justification for the employer's actions. The court also held that the pilots inadequately pled and asserted intention discrimination claims, and therefore forfeited those claims. (Odell v. Kalitta Air, LLC, (6th Cir. July 9, 2024).)

Interpretations and Applications of the Labor Management Relations Act of 1947 (LMRA)

Section 302 Claims

302(c): Exceptions to Prohibited Employer Payments to Unions

  • February 20, 2024: The Ninth Circuit held that Section 302(c)(4) of the LMRA, 29 U.S.C. § 186(c)(4), does not mandate that written assignments executed by employees to authorize the checkoff of union dues specifically recite the revocation rights contained in the statute, enforcing the NLRB's order finding that the employer violated Section 8(a)(5) of the NLRA by unilaterally ceasing dues checkoff despite the lack of express language in the employee checkoff authorizations providing for revocability on expiration of the governing CBA (NLRB v. Valley Health Sys., LLC, 93 F.4th 1115 (9th Cir. 2024)).