February 27, 2024: On remand from the DC Circuit, the Board issued a Supplemental Decision and Order confirming its jurisdiction over the proceeding and applying established Board precedent to hold that the employer, having voluntarily recognized a bargaining unit comprised of statutory supervisors and statutory employees, could not invoke the mixed nature of the unit as a defense to ULP allegations. Accordingly, the Board found that the employer violated Section 8(a)(5) of the NLRA as alleged in the complaint. (Sunrise Operations, LLC, 373 N.L.R.B. No. 30 (Feb. 27, 2024); for background on this case, see 2023 Traditional Labor Law Developments Tracker: Statutory Inclusions and Exclusions and NLRB Jurisdiction.)

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).)

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:

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 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:

However, the court held that:

(Renew Home Health v. NLRB, (5th Cir. Mar. 7, 2024).)

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:

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:

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).)

January 12, 2024: The DC Circuit affirmed the NLRB's conclusion that an employee feedback channel violated Section 8(a)(2) of the NLRA because it was an employer-dominated employee representation committee that existed in part to "deal with" management concerning working conditions. The court denied the employer's petition for review and granted the NLRB's cross-application for enforcement of its order requiring the employer to disband the employee feedback channel, end all support for the channel, and post notices to call-centers where the feedback channel operated. (T-Mobile USA, Inc. v. NLRB, (D.C. Cir. Jan. 12, 2024); for more information on the NLRB's decision and order, see 2022 Traditional Labor Law Developments Tracker: Section 8(a)(2): Employer Dominance Over or Unlawful Assistance to Union.)

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:

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 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 collective bargaining agreement (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, (9th Cir. Feb. 20, 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).)

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:

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, AFL-CIO 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).)

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, (9th Cir. Feb. 20, 2024)).