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.

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)).

May 25, 2022: Rhode Island enacted a law generally legalizing the recreational use of marijuana and prohibiting employers from disciplining an employee "solely for an employee's private, lawful use of cannabis outside the workplace and so long as the employee has not and is not working under the influence of cannabis." Among other exceptions, the law permits employers to discipline an employee for off-duty use when that is prohibited by the terms of a CBA. (RI LEGIS 22-32, 2022 Rhode Island Laws Ch. 22-32 (22-S 2430); for more information, see Legal Update, Jackson Lewis: Rhode Island Legalizes Recreational Marijuana and Protects Off-Duty Use.)

July 29, 2022: The DC Circuit granted the union's petition for review and vacated the NLRB's Supplemental Decision and Order and Order Denying the union's Motion for Reconsideration (see 369 N.L.R.B. No. 139 (July 29, 2020); 370 N.L.R.B. No. 86 (Feb. 11, 2021)). The DC Circuit remanded the case to the NLRB to conform its application of the NLRB's 2015 joint-employer analysis in this case to common law principles flagged in the DC Circuit’s 2018 decision, which also remanded this matter to the NLRB. The current DC Circuit decision does not affect the NLRB's 2020 joint employer standard set through agency rulemaking (see Legal Update, NLRB Issue Joint Employer Rule; 29 C.F.R. § 103.40). (, at *1 (D.C. Cir. July 29, 2022); for more information, see Legal Update, DC Circuit Upholds Part of NLRB's 2015 Joint Employer Analysis, Pans its Ambiguous Application to Facts.)

July 8, 2022: The DC Circuit concluded that the NLRB did not abuse its discretion in determining that the doctrine of judicial estoppel is unavailable in NLRB proceedings as a basis for compelling the NLRB to surrender its jurisdiction (Temple Univ. Hosp. v. NLRB, , at *4 (D.C. Cir. July 8, 2022); for more information, see Legal Update, Judicial Estoppel Unavailable to Compel NLRB to Relinquish its Jurisdiction: NLRB).

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:

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).)

August 29, 2022: The Board held that the Republic Aviation Section 7 rights-legitimate business interests balancing test and special circumstances exception must be applied whenever an employer imposes a dress code or uniform policy that would limit employees from wearing pro-union clothing, buttons, stickers, or insignia at work (see Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-03 (1945)). The Board overruled Wal-Mart Stores, Inc., which held that content-neutral dress code policies limiting the wearing of buttons or insignia of specified sizes or appearances but not wholly prohibiting pro-union buttons or insignia, must be reviewed under the Board's test for facially neutral employer policies in Boeing Co. (365 N.L.R.B. No. 154 (2017)) rather than Republic Aviation (see 368 N.L.R.B. No. 146 (Dec. 16, 2019); for more information about Wal-Mart, see Legal Update, Applying Boeing, Dress Code Policy Limiting Certain Union Insignia Lawful in Customer Areas, Unlawful Outside Selling Floor: NLRB). The Board again presumes that an employer, absent a showing of special circumstances, interferes with employees' Section 7 rights by implementing content-neutral dress or uniform policies that would limit the wearing of pro-union clothing, buttons, stickers, or insignia at work. (Tesla, Inc., 371 N.L.R.B. No. 131 (Aug. 29, 2022); for information on Tesla, see Legal Update, NLRB Reaffirms Employees' Rights to Wear Union Clothing, Buttons, and Insignia Absent Special Circumstances, Overrules Recent Contrary Precedent; for information on the Board's call for amicus briefs concerning Tesla, see Legal Update, NLRB Invites Briefs on Employers' Uniform Policies.) UPDATE: On November 14, 2023, the Fifth Circuit granted the employer's petition for review, denied the NLRB's cross-application for enforcement, and vacated the Board's opinion. The Fifth Circuit would therefore reinstate the Board's decision in Wal-Mart Stores (Tesla, Inc. v. NLRB, (5th Cir. Nov. 14, 2023); for more information on the Fifth Circuit's opinion, see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights).

January 18, 2022: The Board invited briefs on mandatory employment arbitration clauses, including those with savings and confidentiality provisions (see 369 N.L.R.B. No. 70 (May 8, 2020) and 369 N.L.R.B. No. 106 (June 19, 2020); for more information, see The NLRB's Boeing Categories for Employment Rules Chart). (Ralph's Grocery Co., 371 N.L.R.B. No. 50 (Jan. 18, 2022); for more information, see Legal Update, NLRB Invites Briefs on Mandatory Employment Arbitration Clauses Including Those with Savings and Confidentiality Provisions.)

January 6, 2022: The Board invited briefs on whether it should abandon or modify its employer work rules standard adopted in Boeing Co. and revised in LA Specialty Produce Co. (365 N.L.R.B. No. 154 (Dec. 14, 2017); 368 N.L.R.B. No. 93 (Oct. 10, 2019)). The Board also invited interested parties to address whether specified categories of work rules should continue to be found lawful to maintain. (Stericycle, Inc., 371 N.L.R.B. No. 48 (Jan. 6, 2022); for more information, see Legal Update, NLRB Invites Briefs on Employer Work Rules Standard and The NLRB's Boeing Categories for Employment Rules Chart.)

December 16, 2022: On remand from the DC Circuit, a 3-2 majority of the Board (Chairman McFerran and Members Wilcox and Prouty) reinstated the test adopted in New York New York Hotel & Casino for determining when a property owner may deny access to an onsite contractor's off-duty employees seeking to engage in protected concerted activity on the premises, abandoning the revised standard set forth in the underlying Board decision in Bexar County Performing Arts Center Foundation (Bexar I) (356 N.L.R.B. 907 (2011), enforced 676 F.3d 193 (D.C. Cir. 2012), cert. denied 133 S. Ct. 1580 (2013); 368 N.L.R.B. No. 46 (Aug. 23, 2019)). Under the restored New York New York standard, a property owner lawfully may prohibit off-duty contractor employees who regularly work on the property from accessing the premises to engage in Section 7 activity only if the property owner can demonstrate that the employees' activity significantly interferes with its use of the property or that another legitimate business reason justifies the exclusion, including the need to maintain production and discipline. The majority concluded that this test properly accommodates both the contractor employees' Section 7 rights and the property owner's private property rights. The decision will apply retroactively to all pending cases. Members Kaplan and Ring dissented. (Bexar Cnty. Performing Arts Ctr. Found., 372 N.L.R.B. No. 28 (Dec. 16, 2022).)

December 15, 2022: In a 3-2 decision (Chairman McFerran and Members Wilcox and Prouty), the Board reaffirmed the longstanding bright-line standard adopted in Johnnie's Poultry Co. for evaluating whether employee interrogations conducted in preparation for ULP proceedings are unlawfully coercive in violation of Section 8(a)(1) of the NLRA (146 N.L.R.B. 770 (1964), enforcement denied 344 F.2d 617 (8th Cir. 1965)). Under Johnnie's Poultry, an interrogation is per se unlawful unless the employer strictly observes certain safeguards intended to minimize the coercive impact of the questioning. The majority concluded that the Johnnie's Poultry safeguards properly balance employers' legitimate needs to prepare a defense against ULP charges with the protection of employees' statutory rights. Members Kaplan and Ring dissented. (Sunbelt Rentals, Inc., 372 N.L.R.B. No. 24 (Dec. 15, 2022); for more information on Johnnie's Poultry, see Practice Note, Investigative Interviews Under the National Labor Relations Act: Investigating to Prepare for Unfair Labor Practice Cases: Johnnie's Poultry Statements.)

September 30, 2022: On remand from the DC Circuit, the Board issued a Second Supplemental Decision and Order finding that the employer violated Section 8(a)(1) by selectively and disparately enforcing three company policies against an employee who sent a union-related email to coworkers using her work email and by promulgating new work rules in direct response to the employee's union activity that prohibited employees from sending mass communications for any non-business purpose and using social media during work. The Board also found that the employer unlawfully told the employee that sending union-related emails to other employees' work addresses was not permitted, concluding that under the totality of the circumstances the statement was coercive and had a reasonable tendency to interfere with the employee's right to communicate about the union. (T-Mobile USA, Inc., 371 N.L.R.B. No. 163 (Sept. 30, 2022); for more information about this case, see Legal Update, NLRB Missed Discriminatory Enforcement of Policies Against Pro-Union Employee Email: DC Circuit.)

July 15, 2022: The Board approved a non-Board settlement of the underlying ULP complaint concerning an interrogation that allegedly unlawful infringed on activity protected under the NLRA, and vacated the Board's 2018 decision in the case, as ordered by the Second Circuit. The majority (Members Wilcox and Prouty) declined to vacate the decision for all purposes, including as precedent, over Member Ring's dissent. (371 N.L.R.B. No. 116 (July 15, 2022); for more information, see Time Warner Cable of New York City LLC v. NLRB, 982 F.3d 126 (2d Cir. 2020), vacating 366 N.L.R.B. No 116 (June 22, 2018), and Legal Update, NLRB Disregarded Its Own Precedent, Erred by Expanding Prohibitions on Coercive Interrogations About Unprotected Conduct: Second Circuit).

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.)

August 9, 2022: The DC Circuit denied the employer's petition for review and granted the NLRB's cross-application for enforcement of its August 25, 2021 Supplemental Decision and Order, holding that the Board sufficiently addressed the conflict between the NLRA and the employer's obligations under applicable antidiscrimination laws as required by the court's prior remand and reasonably found that the employer terminated the employee in violation of Sections 8(a)(3) and (1) of the NLRA (Constellium Rolled Prods. Ravenswood, LLC v. NLRB, (4th Cir. Aug. 9, 2022); for more background on this case, see Legal Update, NLRB Missed Potential NLRA-EEO Law Conflicts When Protecting Employee's Offensive Comments: DC Circuit).

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.)

December 13, 2022: In a 3-2 decision (Chairman McFerran and Members Wilcox and Prouty), the Board modified its standard make-whole remedy to expressly require the respondent to compensate affected employees for all direct or foreseeable pecuniary harms suffered due to the respondent's ULP, such as credit card debt and out-of-pocket medical expenses. The majority relied on the Board's broad remedial authority under Section 10(c) of the NLRA to effectuate the statute's purposes and policies, reasoning that compensation for these harms is necessary to make affected employees whole and fully restore the economic status quo that would have prevailed absent the respondent's violation of the law. Going forward, the General Counsel must prevent evidence in the compliance proceeding to establish the amount of financial harm alleged and that the harm either was directly caused by the respondent's ULP or was foreseeable at the time that the ULP was committed and resulted from the respondent's unlawful conduct. The respondent then will have an opportunity to rebut that evidence. The Board's expanded remedy will apply retroactively to all pending cases. Members Kaplan and Ring dissented. (Thryv, Inc., 372 N.L.R.B. No. 22 (Dec. 13, 2022); for more information on the General Counsel's broader remedial initiatives from which this expanded make-whole remedy flows, see Legal Update, NLRB General Counsel Directs Regional Offices to Expand Remedies Sought in Unfair Labor Practice Cases.)

September 26, 2022: The Board accepted as the law of the case the DC Circuit's decision in Leggett & Platt, Inc. v. NLRB, which applied Johnson Controls retroactively, granted review of the Board's findings that the employer violated Section 8(a)(5) by withdrawing recognition from the union and unilaterally changing employment terms and conditions, and denied enforcement of the NLRB's affirmative bargaining order (see 988 F.3d 487 (D.C. Cir. 2021) applying Johnson Controls, 368 N.L.R.B. No. 20 (July 3, 2019)). On remand from the DC Circuit in this case, the Board also confirmed its prior cease-and-desist and notice-posting remedy for the employer's unlawful assistance to an employee's decertification petition efforts. The Board concluded that this standard ULP remedy was appropriate even though the employer's violation might have been an isolated incident, the employer's withdrawal of recognition ultimately was held to be lawful, and the union no longer represents the former bargaining unit. (Leggett & Platt, Inc., 371 N.L.R.B. No. 148 (Sept. 26, 2022); for more information on Leggett & Platt, see Legal Update, NLRB Arbitrarily and Capriciously Applied Anticipatory Withdrawal of Recognition Precedent Prospectively and Issued Affirmative Bargaining Order: DC Circuit.)

August 11, 2022: The Ninth Circuit upheld the NLRB's order requiring an employer to reimburse the union for legal fees incurred during collective bargaining (NLRB v. Ampersand Publ'g, LLC, (9th Cir. Aug. 11, 2022); see Legal Update, NLRB Can Order Employer to Reimburse Union for Legal Fees Incurred During Bargaining: Ninth Circuit).

June 2, 2022: The Board modified its standard remedial language for the timing of electronic notice-posting of ULPs at workplaces that continue to be impacted by COVID-19. Specifically, for facilities that have not reopened due to COVID-19 or where a substantial number of employees have not returned to work on-site and the employer is communicating with employees by electronic means, any required electronic notice posting must occur within 14 days after service by the Region. The Board retained the deferred timeframe adopted in Danbury Ambulance Service, Inc. for physical posting, which still must occur within 14 days of the facility's reopening and staffing by a substantial complement of employees (369 N.L.R.B. No. 68 (May 6, 2020)). (Paragon Sys., Inc., 371 N.L.R.B. No. 104 (June 2, 2022); see also NLRB News Release: NLRB Modifies Timing of Electronic Notice Posting in Workplaces Impacted by COVID-19.)

August 5, 2022: The Fourth Circuit held that the NLRB's unopposed petition to enforce a consent judgment that reflected the terms of a stipulated settlement resolving an underlying ULP complaint against an employer lacked the adverseness necessary to confer federal court jurisdiction under Article III of the US Constitution (NLRB v. Constellium Rolled Prods. Ravenswood, LLC, (4th Cir. Aug. 5, 2022); for more information, see Legal Update, NLRB's Unopposed Petition to Enforce Consent Judgment Against Employer Lacks Adverseness Necessary to Confer Article III Jurisdiction: Fourth Circuit).

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).)

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 Centers for Disease Control and Prevention (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." (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).

June 15, 2022: The Board unanimously held that the NLRB's recently promulgated Election Protection Rule, which modified certain aspects of the Board's blocking-charge policy relating to holding representation petitions in abeyance does not foreclose the continuation of merit-determination dismissals as a longstanding, distinct aspect of the NLRB's broader blocking-charge policy. A majority of the panel held that Saint Gobain Abrasives does not require an evidentiary hearing on the impact of the alleged employer ULPs on employees before a causal nexus determination can be made (342 N.L.R.B. 434 (2004). (Rieth-Riley Constr. Co., 371 N.L.R.B. No. 109 (June 15, 2022); for more information, see Legal Update, Merit-Determination Dismissals Remain Available Under the Election Protection Rule: NLRB.)

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).)

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 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.)

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).)

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).

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.)