2022 Traditional Labor Law Developments Tracker | Practical Law

2022 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 2022. 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.

2022 Traditional Labor Law Developments Tracker

Practical Law Practice Note w-036-5983 (Approx. 29 pages)

2022 Traditional Labor Law Developments Tracker

by Practical Law Labor & Employment
Law stated as of 31 Dec 2022ExpandIllinois, North Carolina, Rhode Island...Tennessee, USA (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 2022. 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 other key US labor and employment law developments, see 2022 Labor & Employment Law Developments Tracker. For key US immigration developments, see 2022 US Immigration Developments Tracker. For key federal and state employment laws, regulations, and other directives responding to COVID-19, see COVID-19: Employment Law and Development Tracker. For a collection of these and other trackers, including the Traditional Labor Law Developments Tracker from the current year, see the Labor, Employment, and Immigration Trackers Toolkit.

Legislation

Federal Legislation

  • December 2, 2022: President Biden signed into law a Congressional Joint Resolution passed under the Commerce Clause of the US Constitution after procedures under the Railway Labor Act (RLA) could not resolve ongoing labor disputes threatening interruptions to interstate commerce (see U.S. Const. art. I, § 8, cl. 3), which imposes collective bargaining agreements (CBAs) on US freight rail workers and averts the threat of a nationwide railway strike that had been planned for December 9, 2022. The legislation provides that the most recent tentative agreements, side letters, and local carrier agreements that either were not ratified or failed ratification prior to the legislation's enactment will have the same binding effect on the parties thereto as though they had been negotiated and ratified under the RLA. (Pub. L. 117-216, 136 Stat. 2267 (Dec. 2, 2022).)

Notable State and Local Legislation

Connecticut

  • May 17, 2022: Governor Ned Lamont signed S.B. No. 163, entitled "An Act Protecting Employee Freedom of Speech and Conscience," which prohibits employers from subjecting or threatening to subject employees to discipline or discharge for refusing to attend employer-sponsored meetings that have the primary purpose of communicating 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"). Aggrieved employees may bring a civil action to enforce their rights under the statute. The law is effective on July 1, 2022.

North Carolina

  • December 28, 2022: The Fourth Circuit rejected a constitutional challenge to language in the 2017 North Carolina Farm Act that prohibits settlement agreements conditioned on an agricultural producer's union affiliation and agreements requiring an agricultural producer to process union dues checkoffs for its farmworker employees, concluding that the law's restrictions do not violate the First or Fourteenth Amendments to the US Constitution or 42 U.S.C. § 1981 (N.C.G.S. § 95-79(b); Farm Labor Org. Comm. v. Stein, (4th Cir. Dec. 28, 2022)).

Rhode Island

Federal Administrative Agency Regulations and Rulemaking

National Labor Relations Board (NLRB)

  • December 1, 2022: The NLRB announced an extension of the deadline to submit comments on its proposed rule concerning blocking charges, voluntary recognition, and construction industry collective bargaining relationships under the National Labor Relations Act (NLRA). Initial comments on the proposal are now due by February 2, 2023. Comments replying to comments submitted during the initial comment period are due by February 16, 2023. (87 Fed. Reg. 73705 (Dec. 1, 2022).)
  • November 4, 2022: The NLRB published a Notice of Proposed Rulemaking (NPRM) for public inspection for a rule revising the agency's election rules and rescinding a final rule, which the agency adopted on April 1, 2020 and which became effective July 31, 2020. The proposed rule would amend NLRB regulations governing the filing and processing of petitions for an NLRB-conducted representation election while either standard unfair labor practice (ULP) charges are pending, or after an employer's voluntary recognition of a union as the majority-supported collective-bargaining representative of the employer's employees. The proposed rule also would redefine the evidence required to prove that an employer and union in the construction industry have established a voluntary majority-supported collective bargaining relationship. Initial comments are due by January 3, 2023. Comments replying to comments submitted during the initial comment period are due by January 17, 2023. Interested parties should review the proposed rule's content and follow the instructions on how to submit comments to the NLRB electronically via regulations.gov or by other specified means. (87 Fed. Reg. 66890 (Nov. 4, 2022); for more information on the rule the NLRB intends to rescind, see Legal Update, NLRB Publishes Final Rule on Blocking Charges, Election Bars, Proof of Majority Support in the Construction Industry).
  • October 14, 2022: The NLRB announced an extension of the deadline to submit comments on its proposed rule concerning the agency's standard for determining joint-employer status under the NLRA. Initial comments on the proposal are now due by December 7, 2022. Comments replying to comments submitted during the initial comment period are due by December 21, 2022. (87 Fed. Reg. 63465-01 (Oct. 19, 2022).)
  • September 7, 2022: The NLRB published an NPRM for public inspection concerning the agency's standard for determining joint-employer status under the NLRA. The NPRM proposes to rescind and replace the agency's joint-employer rule that took effect on April 27, 2020. A majority of the NLRB proposes that the agency should consider direct evidence of a putative employer's control over employees' employment terms and conditions or evidence of the putative employer's reserved or indirect control over those terms when analyzing joint-employer status. Initial comments are due by November 7, 2022. Comments replying to comments previously filed by other parties during the initial comment period are due by November 21, 2022. Those wishing to submit comments should review the proposed rule's content and follow the instructions on how to submit comments to the NLRB electronically via regulations.gov or by other specified means. (87 Fed. Reg. 54641 (Sept. 7, 2022); for more information on the NLRB's current joint-employer standard, see Legal Update, NLRB Issues Joint Employer Rule.) UPDATE: On October 27, 2023, the NLRB issued a final rule rescinding the 2020 rule and establishing a new standard for determining joint-employer status under the NLRA (88 Fed. Reg. 73946 (Oct. 27, 2023); for more information on the final rule, see 2023 Traditional Labor Law Developments Tracker: National Labor Relations Board (NLRB)).
  • August 8, 2022: The NLRB published its semiannual regulatory agenda (87 Fed. Reg. 48418 (Aug. 8, 2022)).
  • June 21, 2022: The NLRB released its spring rulemaking agenda.
  • February 2, 2022: The NLRB published a system of records notice for its Backpay Management System (NLRB-36) (87 Fed. Reg. 5843 (Feb. 2, 2022)).

Federal Mediation and Conciliation Service (FMCS)

  • November 15, 2022: The FMCS issued a final rule rescinding its Code of Professional Conduct for Labor Mediators, which was adopted in 1966 and housed in Appendix to part 1400 of the agency's regulations. The FMCS asserts that this Code:
    • no longer reflects the agency's values, the scope of the services FMCS mediators provide, or best practices for conflict management and resolution services; and
    • addresses employee conduct, a purely an internal agency matter.
    The FMCS deems this rulemaking purely procedural and effective immediately. (87 Fed. Reg. 68357 (Nov. 15, 2022).)

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

  • September 13, 2022: The OLMS published proposed revisions to its Form LM-10 Employer Report, a report that employers generally must file if they, among other things, hire a consultant to persuade their workers about labor relations activities or to gather information about actions of employees or unions concerning a labor dispute (29 U.S.C. § 433(a)). The proposed revisions include requiring LM-10-filing employers to check a box disclosing whether they are federal contractors, and if so, to provide their federal Unique Entity Identifier and specified details about their federal contract or subcontract. Comments on the proposed revisions are due by October 13, 2022. Those wishing to submit comments should review the proposed revisions and submit comments electronically via regulations.gov. (87 Fed. Reg. 55952 (Sept. 13, 2022).)

Federal Labor Relations Authority (FLRA)

Federal Administrative Agency Operations

Office of the General Counsel of the National Labor Relations Board

  • November 9, 2022: The General Counsel issued Memorandum GC 23-03, returning discretion to Regional Directors to answer information requests from other federal, state, and local agencies that protect worker and consumer rights, in most instances, and otherwise setting procedures aimed towards increasing inter-agency coordination (NLRB Gen. Counsel Mem. 22-03, Delegation to Regional Directors of Section 102.118 Authorization Regarding Record Requests from Federal, State, and Local Worker and Consumer Protection Agencies Inter-Agency Coordination, (Nov. 9, 2022)).
  • October 31, 2022: The General Counsel issued Memorandum GC 23-02 outlining concerns that employers are implementing new technologies, including so-called automated management and algorithmic management tools, to closely monitor and manage employees and thereby interfere with employees exercising their Section 7 rights. The General Counsel directs Regions to both vigorously enforce existing NLRB precedent in cases involving new workplace technologies and submit to the Office of the General Counsel, Division of Advice any cases of intrusive or abusive electronic surveillance and algorithmic management interfering with union organizing or other Section 7 activity. The General Counsel intends to use appropriate cases to urge the panel (Board) heading the NLRB's judicial and election functions to adopt a new legal standard on employee monitoring technologies and processes. Specifically, the General Counsel will urge the Board to presume employers violate Section 8(a)(1) of the NLRA where the employers' surveillance and management practices, viewed as a whole, tend to interfere with or prevent a reasonable employee from engaging in NLRA-protected activity. If an employer establishes that a legitimate business need cannot be met through monitoring practices less damaging to employee rights, the General Counsel will urge the Board to balance the respective employer and employee interests to determine whether the NLRA permits the employer's practices. The General Counsel also will urge the Board to permit an employer to covertly use monitoring technology only when supported by special circumstances. Finally, the General Counsel will urge the Board to require employers to disclose to employees the technologies they use to monitor and manage employees, their reasons for doing so, and how the employers use any obtained information. (NLRB Gen. Counsel Mem. 23-02, Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights, (Oct. 31, 2022).)
  • October 20, 2022: The General Counsel issued Memorandum GC 23-01 outlining measures to improve the NLRB's effectiveness and better focus agency resources in securing injunctive relief under Section 10(j) of the NLRA. Specifically, the General Counsel directs Regions to seek settlement of the Section 10(j) aspect of cases warranting interim relief when efforts to settle the entire underlying administrative case are unsuccessful, giving charged parties the opportunity to voluntarily agree to an interim agreement, including remedies, pending final resolution of the administrative case by the Board. When the parties cannot reach a settlement on interim relief, seeking such a settlement would be futile, or a party agrees to but subsequently violates the terms of such a settlement, Regions and the Injunction Litigation Branch will utilize streamlined procedures to petition for Section 10(j) relief in federal district court. (NLRB Gen. Counsel Mem. 23-01, Settling the Section 10(j) Aspect of Cases Warranting Interim Relief, (Oct. 20, 2022).)
  • October 5, 2022: The Division of Operations-Management issued Memorandum OM 23-01 advising that the NLRB's interest rate for the first quarter of Fiscal Year 2023 (October 1 to December 31, 2022) increased to 6%.
  • July 26, 2022: The NLRB announced the signing of a new Memorandum of Understanding with the DOJ Antitrust Division to create a formal partnership aiming to protect free and fair labor markets and ensure that workers can freely exercise their NLRA rights.
  • July 19, 2022: The NLRB announced that it has executed a Memorandum of Understanding with the Federal Trade Commission (FTC) forming a partnership between the agencies to promote fair competition and advance workers' rights. The MOU allows the agencies to collaborate by sharing information, conducting cross-agency training for staff, and partnering on investigative efforts within the authority of each agency.
  • July 14, 2022: The Division of Operations-Management issued Memorandum OM 22-14 advising that the NLRB's interest rate for the fourth quarter of Fiscal Year 2022 (July 1 to September 30, 2022) increased to 5%.
  • June 23, 2022: The General Counsel issued Memorandum GC 22-06, which:
  • June 16, 2022: The Division of Operations-Management issued Memorandum OM 22-12 announcing an enhanced six-month program to improve accessibility to the NLRB's toll-free number for Spanish-speaking callers. The process is to be implemented on June 21, 2022.
  • June 1, 2022: The Division of Operations-Management issued Memorandum OM 22-11, which provides a table of hearing dates and Statement of Position/Responsive Statement of Position due dates for RC, RD, and RM petitions with dates of service from June 1, 2022 through May 31, 2023 that do not present unusually complex issues.
  • May 27, 2022: The General Counsel issued Memorandum GC 22-05, which implements a series of changes to promote timely and quality processing of ULP charges (NLRB Gen. Counsel Mem. 22-05, Goals for Initial Unfair Labor Practice Investigations, (May 27, 2022)).
  • May 10, 2022: The NLRB announced partnerships with the governments of El Salvador, Guatemala, and Honduras to strengthen ties with their embassies and consulates in the US and ensure that immigrant workers can freely exercise their NLRA rights.
  • May 2, 2022: The Division of Operations-Management issued Memorandum OM 22-09, which requires Regions to provide a fact sheet (available in English and Spanish) to all witnesses before taking their testimony explaining that:
    • immigration status is not relevant to whether an NLRA violation has occurred;
    • information obtained during NLRB investigations is protected; and
    • a charging party or witness can request that the NLRB seek immigration relief for employees at a worksite if necessary to protect employees who are participating in NLRB processes or exercising their NLRA rights.
  • April 27, 2022: The Division of Operations-Management issued Memorandum OM 22-08 regarding a new initiative to partner with the Federal Mediation and Conciliation Service (FMCS) to promote productive collective bargaining.
  • April 7, 2022: The General Counsel issued Memorandum GC 22-04 stating that the General Counsel will request the Board to overrule long-standing precedents and hold that compelling employees to attend meetings to listen to employer speech concerning their NLRA rights or urging employees to reject union representation violates the NLRA. The memorandum asserts that since 1948 the Board has incorrectly concluded that an employer does not violate the NLRA by requiring employees to attend these so-called "captive audience" meetings, which the General Counsel argues infringe on employees' rights to refrain from listening to employer speech concerning their NLRA rights. The memorandum further states that the Board's continued sanctioning of these meetings without additional, unspecified safeguards would be inconsistent with the goals of the NLRA. (NLRB Gen. Counsel Mem. 22-04, The Right to Refrain from Captive Audience and other Mandatory Meetings, (Apr. 7, 2022).)
  • April 4, 2022: The Division of Operations-Management issued Memorandum OM 22-07 advising that the NLRB's interest rate for the third quarter of Fiscal Year 2022 (April 1 to June 30, 2022) increased to 4%.
  • February 10, 2022: The General Counsel issued Memorandum GC 22-03 discussing inter-agency coordination for the protection of workers' rights (NLRB Gen. Counsel Mem. 22-03, Inter-agency Coordination, (Feb. 10, 2022)).
  • February 1, 2022: The General Counsel issued Memorandum GC 22-02 discussing an initiative for the pursuit of Section 10(j) injunctive relief during organizing campaigns when employer threats or other coercion may lead to irreparable harm to employee rights (NLRB Gen. Counsel Mem. 22-02, Seeking 10(j) Injunctions in Response to Unlawful Threats or Other Coercion During Union Organizing Campaigns, (Feb. 1, 2022)).
  • January 26, 2022: The Division of Operations-Management issued Memorandum OM 22-06 announcing the availability of its charge and petition e-filing system in Spanish.
  • January 6, 2022: The NLRB announced the signing of a Memorandum of Understanding with the US Department of Labor (DOL) Wage and Hour Division that strengthens the partnership between the agencies and outlines procedures relating to information-sharing, joint investigations, and enforcement activity, along with education, training, and community outreach.
  • January 4, 2022: The Division of Operations-Management issued Memorandum OM 22-05 advising that the NLRB's interest rate for the second quarter of Fiscal Year 2022 (January 1 to March 31, 2022) will remain at 3%.

Division of Judges of the National Labor Relations Board

  • February 8, 2022: The Division of Judges released an updated Bench Book. The January 2022 edition updates the previous March 2021 edition with citations to additional Board and court decisions and additional discussion on a variety of topics, including evidentiary issues relating to electronically stored information (ESI).

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

NLRA Operation and Coverage and NLRB Jurisdiction and Preemption

Statutory Inclusions and Exclusions and NLRB Jurisdiction

Statutory Operation

  • April 22, 2022: The Fifth Circuit held, among other things, that the NLRA does not protect NLRB General Counsel from being removed by the President without just cause before expiration of the General Counsel's four-year term. The court reasoned that it was appropriate to presume that the General Counsel served at the President's pleasure because the NLRA does not expressly limit the President's power to remove an agency head, as it does for Board Members. The court further noted that:
    • the statutory limitation on General Counsel's term of office to four years did not immunize him from removal;
    • the President's power to remove was essential to performance of his Article II responsibilities and control over Executive Branch;
    • The NLRA's language reveals that the US Congress intended to differentiate between the General Counsel's and the Board's final authority on a prosecutorial versus adjudicatory line. Precedent inferring tenure protections to Senate-confirmed members of boards exercising quasi-legislative or adjudicatory functions were inapposite (compare 29 U.S.C. §§ 153(a) and 153(d); see Humphrey's Executor v. US, 295 U.S. 602 (1935) and Wiener v. US, 357 U.S. 349 (1958)).
    Consequently, the Acting General Counsel appointed after the General Counsel's removal was authorized to prosecute the ULP complaint against the employer in the present case. (Exela Enter. Sols., Inc. v. NLRB, 32 F.4th 436 (5th Cir. 2022).)

Unfair Labor Practices

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

Employment Policies and Agreements.
Employment Practices.

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

  • November 18, 2022: On remand from the DC Circuit, a Board panel majority issued a Supplemental Decision and Order finding that the employer violated Section 8(a)(2) by supporting an employee feedback and communications channel for customer service representatives to identify customer and internal "pain points," which channel the majority deemed a labor organization under Section 2(5) of the NLRA (29 U.S.C. §§ 152(5), 158(a)(2)). The majority (Members Wilcox and Prouty, with Member Ring dissenting) rejected the Board's prior holding in the case that an organization in which employee representatives make proposals to management does not constitute a "labor organization" unless those proposals are adopted by the group. The majority focused instead on whether employee representatives selected by the employer to communicate pain points logged in a SharePoint database made proposals concerning employment terms and conditions "while acting in a representative capacity." The majority concluded that the feedback channel was an employee representation committee existing in part to "deal with" management concerning working conditions. Since it was undisputed that the employer dominated and assisted the feedback channel, and even credited the channel for proposing popular, employer-adopted changes in working conditions, the majority ordered the employer to disband the feedback channel, end all support for it, and post notices to call-centers where the feedback channel operated. (T-Mobile USA, Inc., 372 N.L.R.B. No. 4 (Nov. 18, 2022); for information on the DC Circuit's decision, see Legal Update, NLRB Must Reconcile Precedent Applying NLRA Definition of Labor Organization to Internal Company Organizations: DC Circuit.) UPDATE: On January 12, 2024, the DC Circuit affirmed the NLRB's conclusions. The court denied the employer's petition for review and granted the NLRB's cross-application for enforcement of the order requiring T-Mobile USA, Inc., 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); see 2024 Traditional Labor Law Developments Tracker: Section 8(a)(2): Employer Dominance Over or Unlawful Assistance to Union.)

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

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

  • December 28, 2022: In a 2-1 decision (Members Wilcox and Prouty), the Board concluded that although the COVID-19 pandemic presented exigent circumstances that excused the employer nursing home from its duty to bargain before unilaterally implementing a wage increase and hiring non-unit employees to perform bargaining unit work during an outbreak at the facility, the employer nevertheless violated Section 8(a)(5) of the NLRA by failing to give the union timely notice of those decisions and an opportunity to bargain about both the decisions and their effects after the exigency had passed. Under the rule articulated by the majority—and in contrast to previous Board analysis that did not expressly require post-implementation decision bargaining—extraordinary circumstances that compel immediate action merely delay, rather than excuse entirely, an employer's obligation to engage in decision bargaining over unilateral changes to employment terms and conditions undertaken in response to the emergency. The majority also found that the employer violated Section 8(a)(5) by eliminating the wage increase, which had been characterized as temporary from the outset, because the change was implemented after the emergency had receded. Member Kaplan dissented. (Metro Man IV, LLC, 372 N.L.R.B. No. 37 (Dec. 28, 2022).)
  • December 7, 2022: The Fourth Circuit issued an unpublished opinion granting the NLRB's application for enforcement of its order finding that an employer violated Section 8(a)(5) of the NLRA by failing to providing the union with pre-implementation notice of an and opportunity to bargain about the effects of its decision to require employees to complete I-9 forms mandated by the federal Immigration Reform and Control Act of 1986 (IRCA) and provide relevant supporting documentation, notwithstanding the fact that the employer had no duty to negotiate with the union over the initial non-discretionary decision to request the I-9 forms in compliance with the law. The Fourth Circuit also affirmed the NLRB's finding that the employer violated Section 8(a)(5) by refusing to provide the union with requested information concerning I-9 forms previously submitted by certain employees. (NLRB v. Frontier Commc'ns Corp., (4th Cir. Dec. 7, 2022); for more background on this case, see Legal Update, Employer Was Required to Give Union Notice and an Opportunity to Bargain Before Requiring Employees to Supply New I-9 Forms and Supporting Documents: NLRB.)
  • November 23, 2022: A Board panel unanimously held that a nursing home and rehabilitation facility violated Section 8(a)(5) of the NLRA by unilaterally rescinding, reducing, and discontinuing "special COVID-19 hourly rate bonuses" that it paid to employees at the outset of the pandemic. The Board reasoned that because attendance was a prerequisite to receiving the bonuses, the bonuses could not be characterized as discretionary, for which bargaining ordinarily would not be required. The Board held that the bonuses were paid for accepting the increased risks of infection from working closely with patients, making them akin to hazard pay, a mandatory subject of bargaining. The Board further held that the management rights provision in the parties' expired CBA, which permitted the employer to set or alter bonuses, did not specify that the right survived the CBA's expiration. The employer therefore was required to provide the union with notice and opportunity to bargain before altering or discontinuing these bonuses. (Alaris Health at Blvd. E., 372 N.L.R.B. No. 6 (Nov. 23, 2022).)
  • September 30, 2022: On remand from the Ninth Circuit, a 3-2 majority of the Board (Chairman McFerran and Members Wilcox and Prouty) issued a Supplemental Decision and Order holding that an employer must continue to honor any dues checkoff arrangement established in a CBA that has since expired until either the parties have reached agreement on a successor contract or a valid overall bargaining impasse permits unilateral action by the employer, consistent with the general rule established by the US Supreme Court in NLRB v. Katz (369 U.S. 736, 743 (1962)). The Board reversed a prior Board majority's decision in Valley Hospital Medical Center, Inc. and readopted the holding and rationale of Lincoln Lutheran of Racine (368 N.L.R.B. No. 139 (Dec. 16, 2019); 362 N.L.R.B. 1655 (2015)). The majority reasoned that dues checkoff provisions are distinguishable from the limited recognized exceptions to the Katz rule, including union security provisions, which terminate on contract expiration under Section 8(a)(3) of the NLRA, and other contractual provisions that are unenforceable after contract expiration because they involve the waiver of statutory and non-statutory rights, such as mandatory arbitration, no-strike, and management rights provisions. Rather, the majority concluded that dues checkoff arrangements are analogous to other payroll deductions established for employees' administrative convenience that survive contract expiration and therefore continue to enjoy protection against unilateral change under Section 8(a)(5). The decision applies retroactively to all pending cases, including the instant case. Members Kaplan and Ring dissented. (Valley Hosp. Med. Ctr., Inc., 371 N.L.R.B. No. 160 (Sept. 30, 2022); see also NLRB News Release: NLRB Rules Employers May Not Unilaterally Stop Union Dues Checkoff When Labor Contracts End; for more information on the history of this case, see Legal Update, NLRB Restores Longstanding Union Dues Checkoff Rule.) UPDATE: On February 20, 2024, the Ninth Circuit denied the employer's petition for review and granted the NLRB's cross-application for enforcement of its order (Valley Hosp. Med. Ctr., Inc. v. NLRB, (9th Cir. Feb. 20, 2024)).
  • September 26, 2022: A Board majority held that an employer's email and webpage notification to all its employees regarding new employment terms and conditions being implemented for its non-represented employees constituted unlawful direct dealing with the union-represented employees under the NLRA. Applying the Permanente Medical Group test, the Board held that notification was for the purposes of both proposing changes to union-represented employees' employment terms and conditions and undercutting the union's role in collective bargaining even though both the email and webpage included the following disclaimer: "We are required by law to deal with unions on behalf of unionized employees, and we will continue to do so. We will only negotiate with the unions, not with individual unionized team members." The Board also held that the email and webpage communication was made to the exclusion of the union even though the employer gave the union a presentation about and a preview of the messages in the email and website before sending the email to all employees and publishing the webpage, and confirmed their intentions to bargain with the union about bargaining unit employees' employment terms and conditions both to the union and to those employees. (See Permanente Med. Grp., 332 N.L.R.B. 1143, 1144 (2000).) The decision expands the circumstances under which the Board might hold employers liable under the direct dealing theory. (Southern Ocean Med. Ctr., 371 N.L.R.B. No. 147 (Sept. 26, 2022).)
  • September 22, 2022: The Board held, among other things, that an employer violated Section 8(a)(5) of the NLRA by unilaterally eliminating a five-shift guarantee promised in an expired CBA without first bargaining to an overall impasse for a successor CBA. The Board found that a CBA provision guaranteeing employees five-shifts per week effective from the first payroll week after the CBA's signing and "for the balance of the Agreement, ending March 31, 2017" failed to "clearly and unmistakably" address what happens after the “balance of the Agreement” was complete. With the shift guarantee provision being "silent" concerning its survival after the CBAs expiration, and there being no other evidence that the union clearly and unmistakably waived its statutory right to its maintenance past the CBA's expiration, the employer was obligated to maintain the provision as a status quo term until the parties bargained to an overall impasse for a successor CBA. The decision relies on post-CBA expiration status quo analysis from Finley Hospital, which was rejected by the Eighth Circuit (362 N.L.R.B. 915 (2015), enforcement denied 827 F.3d 720 (8th Cir. 2016) (NLRB misinterpreted CBA and erroneously held that a 3% raises promised during the CBA's one-year duration established a status quo of annual 3% raises); for more information on Finley Hospital, see Legal Update, Employer Violated NLRA By Unilaterally Discontinuing Annual Pay Raises after CBA Expired: NLRB). The decision signals that the NLRB is again requiring durational terms in a CBA provision to have very explicit termination language or else the Board holds that the provision's promises must continue after the CBA's expiration (PG Publ'g Co., Inc. (d/b/a Pittsburgh Post–Gazette), 371 N.L.R.B. No. 141 (Sept. 22, 2022)). UPDATE: The Third Circuit granted the employer's petition for review, holding that the Board misapplied law and misconstrued the express terms of the five-shift guarantee. However, the Third Circuit remanded the case to the NLRB for consideration of whether the employer adequately bargained before implementing layoffs. (PG Publ'g Co. v. NLRB, (3d Cir. Sept. 26, 2023); for more information on the Third Circuit's decision, see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(5): Employer Refusal to Bargain.)
  • August 23, 2022: On remand, a majority of a Board panel identified and ordered an employer to produce specific schedules and attachments to an asset purchase agreement that either concern unit employees and therefore are presumptively relevant or potentially affect unit employees' employment terms and conditions and therefore were sufficiently established to be relevant. The majority asserted that its analysis—undertaken to effectuate the Third Circuit’s directive on remand to require production only of those parts of the asset purchase agreement determined to be relevant—does not alter Board precedent governing the presumptions and burdens applicable to the production of requested information. The majority also noted the limited applicability of this decision given the unusual circumstances and law of the case. (Delaware Cty. Mem’l Hosp., 371 N.L.R.B. No. 129 (Aug. 23, 2022); for more background on this case, see Legal Update, NLRB Abused Discretion by Ordering Employer to Provide Union Whole Rather than Relevant Parts of Asset Purchase Agreement: Third Circuit.)
  • August 15, 2022: The Board held that an employer committed various ULPs. Among other holdings, the Board concluded that the employer's failure to provide the union with notice and opportunity to bargain before discharging all bargaining unit employees and then subcontracting bargaining unit work was not justified by a "business necessity" brought on by the COVID-19 pandemic. The COVID-19 pandemic did not present exigent circumstances excusing the employer's unilateral actions where the employer acted without notice to the union, even while negotiations were ongoing, and the changes were implemented three weeks before the US government declared a national emergency and before the pandemic affected room occupancy and revenues. (Arbah Hotel Corp., 371 N.L.R.B. No. 126 (Aug. 15, 2022); for more information, see Legal Update, COVID-19 Pandemic Did Not Constitute Economic Exigency Excusing Employer's Duty to Bargain Over Discharges, Subcontracting: NLRB.)

Unfair Labor Practice Prosecutions and Remedies

Remedies

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

Union Representation and Elections

Showing of Interest and Election Petitions

  • November 4, 2022: A Board panel held that employees could obtain an election to decertify an incumbent mixed guard-nonguard union even though that would cause the incumbent mixed guard-nonguard union to appear on the election ballot as a necessary party. The Board clarified that neither Section 9(b)(3) of the NLRA, which prohibits the Board from certifying a union as representative of a guard bargaining unit if that union has nonguard members or is affiliated with a union that has nonguard members, nor University of Chicago, which held that a mixed guard-nonguard union that was not the incumbent union could not intervene and appear on the ballot in a decertification election, barred the election (29 U.S.C. § 159(b)(3); 272 N.L.R.B. 873 (1984)). The Board granted a petition for review of a Regional Director's dismissal of employees' decertification petition reasoning that precluding employees from securing an election to decertify a recognized mixed guard-nonguard union would be contrary to the purposes of Section 9(b)(3) and the employees' Section 9(c) right to seek to decertify their representative. (Securitas Sec. Servs. USA, Inc., 372 N.L.R.B. No. 2 (Nov. 4, 2022).)

Pre-Election Hearings, Procedures, and Election Bars

Appropriate Bargaining Unit Determinations

  • December 14, 2022: In a 3-2 decision (Chairman McFerran and Members Wilcox and Prouty), the Board reinstated the standard articulated in Specialty Healthcare & Rehabilitation Center of Mobile for determining whether additional employees must be included in a petitioned-for bargaining unit to render it an appropriate unit under the NLRA, overruling PCC Structurals, Inc. and Boeing Co. (357 N.L.R.B. 934 (2011); 365 N.L.R.B. No. 160 (Dec. 15, 2017); 368 N.L.R.B. No. 67 (Sept. 9, 2019)). Under the restored Specialty Healthcare standard, a party challenging the appropriateness of a petitioned-for unit on the ground that it is not sufficiently distinct must show that the excluded employees share an "overwhelming community of interest" with the included employees such that there is no rational basis for their exclusion. The majority reasoned that this heightened showing is appropriate to protect the statutory rights of the employees seeking union representation, while also ensuring that the petitioned-for unit is not arbitrary. The decision will apply retroactively to all pending cases. Members Kaplan and Ring dissented. (Am. Steel Constr., Inc., 372 N.L.R.B. No. 23 (Dec. 14, 2022).)

Election Objections and Challenges

  • November 15, 2022: A Board panel ruled that an NLRB Region could count a mail ballot arriving after the ballot count date. The panel found that circumstances justified creating a narrow exception to its bright-line rule under CenTrio Energy South, LLC that the NLRB does not count mail ballots that arrive after the tally, even if those votes would be determinative. (371 N.L.R.B. No. 94, slip op. at 1 (Apr. 28, 2022) citing Classic Valet Parking, 363 N.L.R.B. 249, 249 (2015)). Specifically, the panel majority noted that:
    • the current election was necessary only because the Region provided the sole voter in an Armor-Globe election an incorrect mail ballot in the prior election (see 40 N.L.R.B. 1333 (1942) (setting procedure for an election to determine whether a single unrepresented employee wished to join an existing bargaining unit));
    • it was undisputed that the voter promptly placed his second ballot in the mail, so the delay in its receipt (presumed to be caused by the NLRB providing the voter a "business reply" envelope) was not attributable to him;
    • if the Certification of Results were to stand, the voter, through no fault of his own, under NLRA Section 9(c)(3) would not be permitted to vote to be included in the bargaining unit for one year (29 U.S.C. § 159(c)(3)); and
    • the Region received the voter's ballot before it issued the Certification of Results.
    The panel rescinded the Regional Director's Certification of Results and remanded the case for further proceedings, which include opening and counting the late ballot cast in the second election, if the parties agree, or holding a third election. (Window to the World Comm'cns, Inc., 372 N.L.R.B. No. 3 (Nov. 15, 2022).)
  • September 29, 2022: A Board majority amended one of the six Aspirus Keweenaw factors justifying, but not requiring, an NLRB Regional Director to direct a mail-ballot election rather than manual elections based on circumstances associated with the COVID-19 pandemic. For Decisions and Directions of Election issuing after the issuance of Starbucks on September 29, 2022, the Aspirus Keweenaw factor 2 is whether the CDC county-based Community Level is “high”. Previously the factor was whether, based on data collected by Johns Hopkins University or state and local governments, the 14-day trend in either the number of new confirmed COVID-19 cases in the county encompassing the employer's facility is increasing, or whether the 14-day testing positivity rate in that county is 5% or higher. Based on the new factor, the Board will hold that a Regional Director has not abused their discretion by directing a mail-ballot election whenever the relevant CDC Community Level is "high." The Board majority declined to abandon Aspirus Keweenaw altogether, as the employer urged, and denied the employer's request for review of the Regional Director's directing a mail ballot election. (Starbucks Corp., 371 N.L.R.B. No. 154 (Sept. 29, 2022); see Aspirus Keweenaw, 370 N.L.R.B. No. 45 (Nov. 8, 2020); for more information on Aspirus Keweenaw, see Legal Update, NLRB Sets Out Six-Factor Guidelines Favoring Mail-Ballot Elections During COVID-19 Pandemic).
  • July 22, 2022: The Board held that NLRB Regional Directors may set aside the results of a union representational election without a hearing on election objections and direct a rerun election based on the responding party's stipulation, even if the objecting party refuses to join in the stipulation. In these circumstances, however, a Regional Director must use the NLRB's new rerun election notice template to advise employees of the rerun election based on a unilateral stipulation, which must include details about the reasons for the rerun election, and schedule the rerun election for an appropriate time when the circumstances permit the free choice of a bargaining representative. (Dynamic Concepts, Inc., 371 N.L.R.B. No. 117 (July 22, 2022); for more information, see Legal Update, Regional Director May Rerun Election Where Objections Are Uncontested, Must Use Specific Language in Notice of Rerun Election: NLRB.)

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

LMRA Preemption

Section 301 Claims

Duty of Fair Representation Claims

  • November 23, 2022: The Second Circuit decided as a matter of first impression that because teachers in church-operated schools are not covered by the NLRA as amended by the LMRA, they cannot raise a LMRA Section 301 claim against those schools, and likewise cannot maintain a derivative duty of fair representation claim against their unions. Relying on the US Supreme Court's reasoning in NLRB v. Catholic Bishop of Chicago that the NLRA and LMRA must be construed to avoid conflicts with guarantees of the First Amendment Religion Clauses, and holding that the NLRB could not regulate labor relations between parochial schools and their teachers, the Second Circuit held that LMRA must not be interpreted as permitting a Section 301 claim against parochial schools or a derivative duty of fair representation claim to avoid impinging on the freedom of church authorities to shape and direct teaching in accord with the requirements of their religion (440 U.S. 490, 504, 507 (1979)). The Second Circuit clarified that the application of Catholic Bishop to preclude parochial school teachers' LMRA claims goes to their ability to state a claim rather than to the court's subject matter jurisdiction. Accordingly, it affirmed the dismissal of the plaintiff's claim in this case under FRCP 12(b)(6) rather than under FRCP 12(b)(1). (Jusino v. Fed'n of Catholic Teachers, Inc., (2d Cir. Nov. 23, 2022).)

State Right-to-Work Laws

Illinois

  • November 8, 2022: Illinois voters in the November 2022 general election approved a proposed amendment to the Illinois Constitution adding a new Section 25 to Article I, which, among other things, prohibits the state legislature from enacting a right-to-work law (ILCS Const. Art. 1, § 25).

Tennessee

  • November 8, 2022: Tennessee voters in the November 2022 general election approved a proposed amendment to the Tennessee Constitution making it unlawful for private and public sector Tennessee employers to condition hiring or continued employment on a person's affiliation or non-affiliation with unions. The amendment, which adds a new section to Article XI of the Tennessee Constitution, enshrines Tennessee's existing right-to-work law. (Tenn. Const. Art. 11, § 19.)

Interpretations and Applications of the Federal Service Labor-Management Relations Statute (FSLMRS)