2023 Traditional Labor Law Developments Tracker | Practical Law

2023 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 2023. 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.

2023 Traditional Labor Law Developments Tracker

Practical Law Practice Note w-038-1519 (Approx. 39 pages)

2023 Traditional Labor Law Developments Tracker

by Practical Law Labor & Employment
Law stated as of 31 Dec 2023USA (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 2023. The developments tracked here relate to, among other things, union elections, unfair labor practices, obligations to engage in collective bargaining, and federal court review of administrative agency decisions and actions.
For information on traditional labor law developments from 2022, see 2022 Traditional Labor Law Developments Tracker.
For other key US labor and employment law developments, see 2023 Labor & Employment Law Developments Tracker. For key US immigration developments, see 2023 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.

Legislation

Notable State and Local Legislation

California

  • March 23, 2023: Governor Gavin Newsom signed SB 41 amending California Labor Code Section 512.2 to create a limited exemption for certain airline employees from meal and rest breaks and related compensation, provided that the airline cabin crew employees are either covered by a valid collective bargaining agreement that addresses those topics or are in the process of entering a collective bargaining agreement addressing the same points. The amendment was made effective immediately.

Connecticut

Illinois

  • June 9, 2023: Governor J. B. Pritzker signed two amendments to Illinois's Labor Disputes Act that expand protections for individuals engaged in peaceful strike or picketing activity. Specifically, HB 2907 prohibits Illinois courts from awarding monetary damages in cases arising out of a labor dispute, as specified, other than for damage to an employer's property resulting from illegal conduct. Additionally, HB3396 makes placing an object in the public way with an intent to interfere with, obstruct, or impede a picket or other demonstration or protest a Class A misdemeanor carrying a minimum fine of $500. The amendments are effective on January 1, 2024.

Maine

  • July 11, 2023: Governor Janet Mills signed LD 1756, entitled "An Act to Protect Employee Freedom of Speech," which prohibits employers from taking any adverse employment action against employees who decline to attend or participate in employer-sponsored meetings that communicate the employer's opinion about political matters, defined to include matters relating to the decision to join or support a labor organization (commonly referred to as "captive audience meetings"). The law preserves employers' rights to conduct meetings concerning political matters where employee attendance is wholly voluntary. Aggrieved employees may bring a civil action within 90 days of an alleged violation. The law is effective on October 25, 2023.

Michigan

  • March 24, 2023: Governor Gretchen Whitmer signed the "Restoring Workers' Rights" bill package (see Michigan.gov Press Release, Gov. Whitmer Signs ‘Restoring Workers’ Rights’ Bill Package Into Law). Senate Bill 34 repeals Michigan's right-to-work law for private sector workers, which was enacted in 2012 (Mich. Pub. Acts 8 (S.B. 34)). Consequently, a private sector union and employer in Michigan may negotiate a union security clause in a collective bargaining agreement (CBA) providing that employees are subject to discharge if they fail to join and pay dues to the union (union shop) or pay administrative fees to the union for the costs associated with its representation of the bargaining unit (agency shop). House Bill No. 4007 re-enacts Michigan's prevailing wage law, which requires contractors on state projects to pay prevailing wages and fringe benefits—that is, wages and benefits that Michigan's Department of Labor determines local unionized workers are to receive for performing the contracted work under their CBAs (Mich. Pub. Acts 10 (H.B. 4007)). Michigan's previous prevailing wage law was repealed effective June 6, 2018. Finally, House Bill No. 4004 permits public sector employers and unions to negotiate agency shop provisions in CBAs (Mich. Pub. Acts 9 (H.B. 4004)). The bill package will become effective on February 13, 2024 due to early adjournment of the 2023 legislative session on November 14, 2023.

Minnesota

  • May 24, 2023: Governor Tim Walz signed SF 3035, an omnibus jobs and economic development and labor funding bill that, among other things, prohibits employers from discharging, disciplining, or otherwise taking any adverse employment action against employees who refuse to attend or participate in employer-sponsored meetings intended to communicate the employer's opinion about political matters, defined to include matters relating to the decision to join or support a labor organization (commonly referred to as "captive audience meetings"). Aggrieved employees may bring a civil action within 90 days of an alleged violation. The law is effective on August 1, 2023. (For more information, see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)

New York

  • September 6, 2023: Governor Kathy Hochul signed SB 4982, which prohibits mandatory so-called "captive-audience meetings." The new law, which went into effect once signed, prohibits employers from disciplining employees for refusing to attend an employer-sponsored meeting or to listen to speech or view communications with the primary purpose of communicating the employer's opinion concerning religious or political matters, where political matters is defined to include the decision to join or support fraternal or labor organizations. The law also requires employers to post a notice informing employees of their rights under the law where workplace notices ordinarily are posted. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)

Federal Administrative Agency Regulations and Rulemaking

National Labor Relations Board (NLRB)

  • October 27, 2023: The NLRB issued a final rule establishing a new standard for determining joint-employer status under the National Labor Relations Act (NLRA) and rescinding the agency's prior joint employer rule promulgated in 2020 (for more information on the rescinded rule, see Legal Update, NLRB Issues Joint Employer Rule). Under the new standard, two or more entities will be considered joint employers of a group of employees if they have an employment relationship with those employees and share or codetermine at least one of the following essential terms and conditions of employment:
    • wages, benefits, and other compensation;
    • hours of work and scheduling;
    • assignment of duties to be performed;
    • supervision of the performance of duties;
    • work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
    • tenure of employment, including hiring and discharge; and
    • working conditions concerning employee safety and health.
    Presented as a return to common-law agency principles, the revised standard requires an analysis of an alleged joint employer's authority to control these essential employment terms and conditions, regardless of whether that control is exercised directly, indirectly, or at all, and is expected to broaden the universe of potential employers subject to the NLRA's requirements. The rule becomes effective on December 26, 2023, absent any change based on Congressional review, and will apply only to cases filed after its effective date. Member Kaplan dissented from this rulemaking. (88 Fed. Reg. 73946 (Oct. 27, 2023); for more information on the new rule, see the NLRB's Fact Sheet.)
    UPDATE: On November 16, 2023, the NLRB announced an extension of the effective date of its Joint Employer Rule from December 26, 2023 to February 26, 2024 in light of legal challenges to the rule. With this extension, the new standard now will not apply to any cases filed before February 26, 2024. The formal announcement was published in the Federal Register as a final rule on November 22, 2023 (88 Fed. Reg. 81344 (Nov. 22, 2023)).
    UPDATE: On February 22, 2024, the US District Court for the Eastern District of Texas issued an order staying the effective date of the rule for two weeks, until March 11, 2024.
  • August 25, 2023: The NLRB issued a final rule amending its procedures governing union representation elections, which largely reverses amendments made by the agency's 2019 election rule and returns election procedures to those adopted in the predecessor 2014 rule. Specifically, the final rule:
    • accelerates the scheduling of pre-election hearings and the due date for the non-petitioning party's statement of position;
    • limits Regional Directors' discretion to postpones pre-election hearings and the due date for filing a responsive statement of position;
    • requires petitioners to respond orally to the non-petitioning party's statement of position at the start of pre-election hearing, rather than delaying the opening of the hearing to allow for filing and service of a responsive written statement;
    • accelerates the deadline for employers to post and distribute the Notice of Petition for Election;
    • provides for the deferral of litigation of eligibility and inclusion issues to the post-election stage, unless resolution of these issues is necessary to determine whether an election should be held;
    • authorizes the submission of written briefs following pre- and post-election hearings only when deemed necessary by the Regional Director or hearing officer;
    • requires Regional Directors to specify election details in the decision and direction of election and simultaneously transmit the Notice of Election with the decision and direction of election; and
    • eliminates the 20-business-day waiting period between issuance of the decision and direction of election and the election, requiring Regional Directors to schedule elections for the earliest date practicable after issuance of the decision and direction of election.
    The rule becomes effective on December 26, 2023. Member Kaplan dissented from this rulemaking. (88 Fed. Reg. 58076 (Aug. 25, 2023); for more information on the 2019 rulemaking and subsequent developments, see Key 2020 Amendments to the NLRB Union Election Process Chart.)
  • August 25, 2023: In a companion rule to its final rule amending the procedures for union representation elections, the NLRB extended the stay of two never-implemented provisions of the agency's 2019 election rule, currently scheduled to expire on September 10, 2023 (see 88 Fed. Reg. 14913 (Mar. 10, 2023)), until December 26, 2023, the effective date of the new rule repealing the provisions. Member Kaplan dissented from this rulemaking. (88 Fed. Reg. 58075 (Aug. 25, 2023); for more information on the 2019 rulemaking and subsequent developments, see Key 2020 Amendments to the NLRB Union Election Process Chart.)
  • July 27, 2023: The NLRB published its semiannual regulatory agenda, flagging that the agency intends to issue a rule revising its standard for determining joint-employer status under the NLRA. The proposed rule would rescind the agency's joint-employer rule that took effect on April 27, 2020 and replace it with a standard that would lead to more joint-employer findings. (88 Fed. Reg. 48686 (July 27, 2023).)
  • March 10, 2023: The NLRB issued a final rule staying until September 10, 2023 the effective date of two provisions of its final rules on representation case procedures published on December 18, 2019 (see 84 Fed. Reg. 69524 (Dec. 18, 2019), implementation delayed by 85 Fed. Reg. 17500-01 (Mar. 30, 2020) and enjoined in part by AFL-CIO v. NLRB, 471 F. Supp. 3d 228, 236 (D.D.C. 2020)). On January 17, 2023, the DC Circuit reversed the DC District Court and held that the two provisions—allowing parties to litigate disputes over unit scope and voter eligibility before an election (amending 29 C.F.R. § 102.64(a)) and instructing NLRB Regional Directors not to schedule elections before the 20th business day after the date of the direction of election (amending 29 C.F.R. § 102.67(b))—did not require notice and comment rulemaking (AFL-CIO v. NLRB, 57 F.4th 1023 (D.C. Cir. Jan. 17, 2023); for more information, see Pre-Election Hearings, Procedures, and Election Bars). These provisions were enjoined by the DC District Court in 2020 as invalidly promulgated and never implemented. On March 13, 2023, the DC Circuit is to lift the injunction and remand the case to the district court for consideration of additional grounds on which the provisions were challenged. The NLRB is postponing implementation of these provisions while that litigation is pending and the agency considers whether to revise or repeal its 2019 rule. Member Kaplan dissented from this rulemaking. (88 Fed. Reg. 14913 (Mar. 10, 2023); for more information on the 2019 rule and its partial implementation in 2020, see Key 2020 Amendments to the NLRB Union Election Process Chart.)
  • March 10, 2023: The NLRB issued a final rule rescinding four provisions of its final rules on representation case procedures published on December 18, 2019 and which were struck down by the DC Circuit on January 17, 2023 (see 84 Fed. Reg. 69524 (Dec. 18, 2019), implementation delayed by 85 Fed. Reg. 17500-01 (Mar. 30, 2020); AFL-CIO v. NLRB, 57 F.4th 1023 (D.C. Cir. Jan. 17, 2023)); for more information, see Pre-Election Hearings, Procedures, and Election Bars). Three of those provisions—setting a five-business-day deadline for employers to provide the voter list after the direction of election (amending 29 C.F.R. § 102.67(l)), precluding NLRB Regional Directors from issuing a certification after an election if a request for review is pending or during the period that request for review may be filed (amending 29 C.F.R. § 102.69(b), (c)), and limiting a party's selection of election observers to current members of the voting unit whenever possible (amending 29 C.F.R. § 102.69(a)(5))—were enjoined by the DC District Court in 2020 as invalidly promulgated and never implemented (AFL-CIO v. NLRB, 471 F. Supp. 3d 228, 236 (D.D.C. 2020)). The DC Circuit held that the fourth provision, providing for automatic impoundment of ballots under certain circumstances when a petition for review is pending with the Board (29 C.F.R. § 102.67(c)), was contrary to the NLRA. The final rule, which is effective immediately, reinstates the previous versions of these regulations. Member Kaplan dissented from this rulemaking. (88 Fed. Reg. 14908 (Mar. 10, 2023); for more information on the 2019 rule and its partial implementation in 2020, see Key 2020 Amendments to the NLRB Union Election Process Chart.)
  • February 22, 2023: The NLRB published its semiannual regulatory agenda (88 Fed. Reg. 11370 (Feb. 22, 2023)).
  • February 15, 2023: The NLRB announced an extension of the deadline to submit responsive comments on its proposed rule concerning blocking charges, voluntary recognition, and construction industry collective bargaining relationships under the NLRA. Comments replying to comments submitted during the initial comment period are now due by March 1, 2023. (88 Fed. Reg. 9796-01 (Feb. 15, 2023); for more information on this rulemaking, see 2022 Traditional Labor Law Developments Tracker: National Labor Relations Board (NLRB).)

Department of Defense (DoD)

  • December 22, 2023: The DoD, General Services Administration, and National Aeronautics and Space Administration issued a final rule implementing Executive Order 14063 (87 Fed. Reg. 7363 (Feb. 4, 2022)), which requires the use of project labor agreements (PLAs) on large-scale federal construction projects where the total estimated cost to the federal government is at least $35 million, subject to limited exceptions. The final rule is effective on January 22, 2024. (88 Fed. Reg. 88708 (Dec. 22, 2023).)

Occupational Safety and Health Administration (OSHA)

  • August 30, 2023: OSHA published a Notice of Proposed Rulemaking (NPRM) that would amend 29 C.F.R. § 1903.8(c) to authorize employees to designate a non-employee third party as their representative to accompany an OSHA compliance officer during a physical workplace inspection, provided that the compliance officer determines that the third party's participation is reasonably necessary to conduct an effective and thorough inspection. In its discussion of the proposal, the agency specifically contemplates that employees may designate a union representative as their walkaround representative in both unionized and nonunionized workplaces, including joint- or multi-employer worksites where nonunion employees work in proximity to union employees. Comments on the NPRM are due by October 30, 2023. (88 Fed. Reg. 59825 (Aug. 30, 2023).)

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

  • July 28, 2023: The OLMS published a revised Form LM-10 Employer Report, which employers generally must file if they, among other things, hire a consultant to persuade their workers about labor relations activities or gather information about union or employee actions concerning a labor dispute (29 U.S.C. § 433(a)). The 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. Employers required to file a Form L-10 must use the revised form for filings submitted to the OLMS on or after August 28, 2023. The OLMS reports that the revised Form LM-10 will be available on the OLMS Electronic Filing System by August 28, 2023. (88 Fed. Reg. 49265 (July 28, 2023).)

Federal Labor Relations Authority (FLRA)

  • December 27, 2023: The FLRA published a system of records notice for its new Freedom of Information Act (FOIA) management system, FOIAXPress (88 Fed. Reg. 89450 (Dec. 27, 2023)).
  • December 4, 2023: The FLRA issued a final rule adopting with one minor change its October 11, 2023 proposal to amend the agency's regulations governing the processing of records under the Privacy Act (5 C.F.R. §§ 2412.1 to 2412.16) to reflect changes in the law and the FLRA's organization since the regulations last were updated. Specifically, the rule updates the procedures for requesting information from the agency, as well as the procedures that the FLRA follows when responding to requests from the public. The final rule is effective on January 3, 2024. (88 Fed. Reg. 84067 (Dec. 4, 2023).)
  • October 18, 2023: The FLRA issued an amendment to correct its recently revised regulations regarding negotiability proceedings (see 88 Fed. Reg. 62445 (Sept. 12, 2023)). The amendment includes revisions to 5 C.F.R. § 2424.25(d) that were inadvertently omitted from the final rule. (88 Fed. Reg. 71731 (Oct. 18, 2023).)
  • October 11, 2023: The FLRA issued a proposed rule revising the agency's regulations governing the processing of records under the Privacy Act (5 C.F.R. §§ 2412.1 to 2412.16) to reflect changes in the law and the FLRA's organization since the regulations last were updated. Specifically, the FLRA is proposing to update the procedures for requesting information from the agency, as well as the procedures that the FLRA follows when responding to requests from the public. Comments on the proposal are due on or before November 13, 2023. (88 Fed. Reg. 70374 (Oct. 11, 2023).)
  • September 12, 2023: The FLRA issued a rule revising the regulations governing negotiability appeals to expedite proceedings (see 5 C.F.R. Part 2424). The final rule clarifies various matters and streamlines the adjudication process for negotiability appeals to produce more timely decisions. The rule becomes effective on October 12, 2023 and applies to petitions for review filed on or after its effective date. (88 Fed. Reg. 62445 (Sept. 12, 2023).)

Federal Administrative Agency Operations

Office of the General Counsel of the National Labor Relations Board

  • December 22, 2023: The Division of Operations-Management issued Memorandum OM 24-02, which provides a table of hearing dates and Statement of Position due dates for RC, RD, and RM petitions with dates of service from December 26, 2023 through December 31, 2024 that do not present unusually complex issues.
  • December 8, 2023: The General Counsel issued Memorandum GC 24-02 outlining the key changes to the procedures governing representation case processing adopted in the agency's August 25, 2023 election rule, which becomes effective on December 26, 2023, and describing how the 2023 rule differs from the predecessor 2019 rulemaking. The memorandum further notes that, because the 2023 election rule restores various provisions first adopted in 2014, the General Counsel's memorandum discussing the 2014 regulations also contains guidance relevant to the 2023 rule (see Guidance Memorandum on Representation Case Procedure Changes Effective April 4, 2015, NLRB Gen. Counsel Mem. GC 16-05, (Apr. 6, 2015)). (Guidance Memorandum on 2023 Updated Representation Case Procedures, NLRB Gen. Counsel Mem. GC 24-02, (Dec. 8, 2023); for more information on the NLRB's 2023 election rule, see National Labor Relations Board (NLRB).)
  • November 2, 2023: The General Counsel issued Memorandum GC 24-01 to provide guidance to NLRB Regional Offices concerning the applications of the Board's decision in Cemex Construction Materials Pacific, LLC to unfair labor practice (ULP) and representation case proceedings (372 N.L.R.B. No. 130 (Aug. 25, 2023), motion for reconsideration denied, 372 N.L.R.B. No. 157 (Nov. 13, 2023); see Section 8(a)(5): Employer Refusal to Bargain and Remedies). The General Counsel instructed NLRB Regional Directors to:
    • apply Cemex retroactively and not recognize any employer claim of reliance on prior law and NLRB procedures creating an expectation that the employer could engage in a degree of unlawful conduct without triggering a bargaining order;
    • consider seeking a Gissel bargaining order rather than applying the Cemex framework in the narrow circumstances where a union's demand for recognition may be at issue and the employer's ULP caused a loss of majority support, such as where there was no or an insufficient demand for recognition, but there was majority status, an RC petition, and an ULP that would interfere with the election (NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) (Gissel));
    • consider employer ULPs occurring not only during the critical period between the petition and election, but also those before the filing of an election petition, when deciding whether to apply Cemex;
    • liberally construe what constitutes a demand for recognition triggering the Cemex procedure, regardless of whether the demand is oral or written or the format of any written demand; the Regions should simply determine whether the request clearly indicates a union's desire to negotiate and bargain on behalf of the employees in the bargaining unit (Al Landers Dump Truck, 192 N.L.R.B. 207, 208 (1971));
    • note that a union may demand recognition and bargaining by filing an RC petition with the NLRB if Section 7a of that petition is checked and the union notes in that section that the petition serves as its demand (see Form NLRB-502 (RC) – RC Petition on the NLRB's website; Alamo-Braun Beef Co., 128 N.L.R.B. 32, 33 n.5 (1960)). If, before an election, the union withdraws an RC petition forming the basis for its demand for recognition, but the union still wants to be recognized as the unit employees' representative, the union should communicate to the employer that it continues to demand recognition. The employer may then promptly file an RM petition if challenging the validity of the union's majority support or the appropriateness of the bargaining unit;
    • note that an employer may ask a union to show evidence of majority support, a union may refuse to provide that requested evidence directly to the employer, and a neutral third party may be engaged to review that evidence;
    • not toll an employer's two-week deadline to file an RM petition after receiving a demand for recognition under Cemex for the period a neutral third party is engaged to review evidence of majority support, such as by conducting a card-check;
    • apply Section 102.2 of the NLRB's Rules and Regulations (concerning the timeliness of filings and bases for extensions of filing deadlines) on a case-by-case basis if an employer claims unforeseen circumstances precluded it from filing an RM petition within two weeks of a union's demand for recognition (see 29 C.F.R. § 102.2);
    • not consider a union's RC petition filing a waiver of the union's right to file a timely ULP charge alleging an employer's unlawful refusal to recognize and bargain;
    • process a Section 8(a)(5) ULP charge alleging a failure and refusal to recognize and bargain in good faith under Cemex despite the timely filing of an RM petition, if an employer files an RM petition raising only the issue that the NLRB lacks jurisdiction over it. Regional Directors are to note that employers should file RM petitions to challenge either or both the validity of the union's majority support or unit appropriateness; a lack of jurisdiction argument should be made in ULP proceedings as it is inconsistent for an employer to assert the NLRB lacks jurisdiction over it while petitioning for an RM election;
    • note that without a representational case (RC or RM) or meritorious Section 8(a)(1) or (3) ULP allegations, a union must file a Section 8(a)(5) ULP charge for the NLRB to initiate an investigation that may lead to issuance of a Cemex bargaining order. The six-month limitations period for filing a ULP charge commences 15 days after the union's demand for recognition, which is after the two weeks in which the employer could have timely filed an RM petition (see 29 U.S.C. § 160(b));
    • not investigate an employer's challenge to either the validity of a union's showing of majority support or the appropriateness of the union's claimed unit in a ULP case if either was previously raised and resolved in a representation case;
    • not engage in a full-blown investigation akin to what would occur in a representation case proceeding before issuing a Section 8(a)(5) complaint alleging a failure and refusal to recognize and bargain in good faith under Cemex. Rather, NLRB Regions are to investigate majority status issues by authenticating authorization cards as they might in Gissel situations, and investigate any raised unit appropriateness issues, unless a unit is obviously inappropriate or unlawful on its face;
    • determine the appropriateness of the unit the union seeks to represent, and place the burden on the employer to demonstrate in an RC or RM proceeding that the union's claimed unit is inappropriate, if the employer so asserts;
    • move for summary judgment before the Board if there are no genuine issues of material fact concerning a union's majority support;
    • assert an employer was obligated to bargain as of the date of the union's demand for recognition in Section 8(a)(5) ULP complaints under Cemex;
    • consolidate the processing of RM and RC petitions that are filed simultaneously or very close in time, provided that the consolidation does not delay processing of the initial petition;
    • hold in abeyance the processing of any subsequent petition not filed close in time with the initial petition concerning a unit after the parties comport with their filing obligations under the NLRB's election rules effective December 26, 2023;
    • dismiss a RC or RM petition filed after a demand for recognition if the employer commits any ULP between the demand and the election rendering a recent or pending election a less reliable indicator of current employee sentiment than a current alternative nonelection showing with the petition, such as authorization cards. The dismissed petition should be subject to potential reinstatement;
    • revoke any certification of election results a Regional Director might have issued after the election on the since-dismissed petition, because no question concerning representation can exist or could have existed. The Regional Directors are to issue a complaint seeking a Cemex bargaining order absent a settlement requiring the employer to recognize the union and bargain;
    • not require as a predicate for issuing a bargaining order that a union file timely objections to an election concerning employer misconduct if the union timely files meritorious Section 8(a)(1) or (3) ULP charges concerning that misconduct. The Regions are to note that while it is preferrable for a union to file an additional charge alleging a Section 8(a)(5) violation to lay the foundation for a remedial bargaining order, Cemex does not require a Section 8(a)(5) charge filing. (See Steel-Fab, Inc., 212 N.L.R.B. 363 (1974));
    • deem authorization cards that clearly state their purpose of authorizing the union to represent the employee reliable indicators of employee sentiment, unless an employer provides evidence proving otherwise (Cumberland Shoe Corp., 144 N.L.R.B. 1268 (Oct. 29, 1963, enforced 351 F.2d 917 (6th Cir. 1965); Clement Bros., 165 N.L.R.B. 698 (1967));
    • seek Section 10(j) injunctive relief where appropriate to restore the status quo ante after serious ULPs and prevent remedial failure by a Board order issued in due course (29 U.S.C. § 160(j)) ;
    • submit to the Division of Advice cases where an employer might have forfeited or waived its avenue to seek a NLRB-conducted election, such as where it reneged on an agreement to recognize and bargain with a union based on a showing of majority support or where an employer disputes the union's majority support and refuses to recognize and bargain with the union despite possessing independent knowledge of the union's majority support.
    The General Counsel also provided guidance to Regional Directors on how they should instruct employers to complete RM petitions and provide supportive documentation. When an employer files an RM petition, it should reference the union's description of the claimed unit in section 5 of the petition form rather than its own description of which employees are to be included or excluded from the "unit involved" (see Form NLRB-502 (RC) – RC Petition, available on the NLRB's website). When an employer supplies evidence supporting the RM petition statement that a union made a demand for recognition, the documentation should also reflect the employer's position regarding the appropriateness of the union's claimed unit and provide a description of the unit the employer believes is appropriate, if the employer disagrees with the appropriateness of the union's claimed unit. The RM petition and supporting documentation must be served on all parties.
    The General Counsel supplied resources on the Cemex Representation Framework, including this General Counsel Memorandum, on the NLRB's website.
    (Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC, NLRB Gen. Counsel Mem. GC 24-01, (Nov. 2, 2023).)
  • October 31, 2023: The NLRB announced that the General Counsel entered the NLRB into a memorandum of understanding (MOU) with the US Department of Labor's (DOL) Occupational Safety and Health Administration (OSHA) creating a formal partnership between the two agencies. The agencies intend to collaborate by sharing information, cross-training agency staff, and partnering on investigative efforts within their authority. Specifically, they plan to enforce anti-retaliation provisions to protect workers who raise concerns about workplace violations or retaliation. The DOL also announced the MOU on its website.
  • October 2, 2023: The Division of Operations-Management issued Memorandum OM 24-01 advising that the NLRB's interest rate for the first quarter of Fiscal Year 2024 (October 1 to December 31, 2023) increased from 7% to 8%.
  • July 10, 2023: The Division of Operations-Management issued Memorandum OM 23-09 advising that the NLRB's interest rate for the fourth quarter of Fiscal Year 2023 (July 1 to September 30, 2023) will remain at 7%.
  • May 31, 2023: The Division of Operations-Management issued Memorandum OM 23-07, 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, 2023 through May 31, 2024 that do not present unusually complex issues.
  • May 30, 2023: The General Counsel issued Memorandum GC 23-08 condemning most employment non-compete agreements as unlawfully interfering with employees' exercise of rights under Section 7 of the NLRA. Building on the General Counsel's view that the Board should hold any employment agreement unlawful "if it reasonably tends to chill employees in the exercise of Section 7 rights unless it is narrowly tailored to address special circumstances justifying the infringement on employee rights" and corresponding expansive view of Section 7 rights, the memorandum directs NLRB Regional Directors to prosecute unfair labor practice (ULP) complaints against employers for entering non-compete agreements with employees, alleging that those agreements unlawfully, among other things:
    • deny employees the ability to quit or change jobs by cutting off their access to other employment opportunities for which they are qualified based on their experience, aptitudes, and preferences as to type and location of work;
    • chill employees from concertedly threatening to resign to demand better working conditions;
    • chill employees from carrying out concerted threats to resign or otherwise concertedly resigning to secure improved working conditions;
    • chill employees from concertedly seeking or accepting employment with a local competitor to obtain better working conditions;
    • chill employees from soliciting their coworkers to go work for a local competitor as part of a broader course of protected concerted activity; and
    • chill employees from seeking employment, at least in part, to specifically engage in protected activity with other workers at an employer’s workplace, such as obtaining employment to engage in union organizing.
    The General Counsel noted that non-compete agreements could be lawful if they:
    • clearly restrict only individuals' managerial or ownership interests in a competing business or concern true independent-contractor relationships; or
    • are sufficiently narrowly tailored that any infringement on employee rights may be justified by special circumstances. The memorandum provides no examples of narrowly tailored language or special circumstances.
    The General Counsel affirmed the NLRB's commitment to partnering with the Federal Trade Commission and the Department of Justice's Antitrust Division to share information and refer matters across agencies to address limits on worker job mobility. Employers should note that General Counsel memoranda do not have the force of binding Board precedent, but direct the circumstances under which Regional Directors are to issue and prosecute ULP complaints flowing from ULP charges. Employers also should note that not all employers and workers are covered by the NLRA and therefore within the General Counsel's sphere of prosecution. (Non-Compete Agreements that Violate the National Labor Relations Act, NLRB Gen. Counsel Mem. GC 23-08, (May 30, 2023); for more information on the NLRB's jurisdiction, see NLRB Jurisdictional Limits and Standards Chart.)
  • May 22, 2023: The General Counsel issued Memorandum GC 23-07 outlining protocols for Regional Offices to promptly seek compliance with or enforcement of Board orders remedying an NLRA violation. Specifically, the memorandum instructs Regional Offices to send a written communication setting a "short deadline period" for the respondent to advise whether it intends to comply with or challenge the Board's order, and if the former, whether the respondent agrees not to challenge the underlying findings and participate directly in NLRB compliance proceedings. The memorandum directs Regional Offices to submit a recommendation for enforcement to the Appellate and Supreme Court Litigation Branch if a respondent either fails to timely respond or communicates in correspondence or public statements that it does not intend to comply with the order. If a respondent provides notice of its intention to comply, the Regional Office must supply a compliance packet containing specific instructions regarding the respondent's compliance obligations under the Board's order. (Procedures for Seeking Compliance with and Enforcement of Board Orders, NLRB Gen. Counsel Mem. GC 23-07, (May 22, 2023).)
  • May 16, 2023: The General Counsel revised Memorandum GC 20-10 to reduce restrictions and requirements associated with NLRB manual elections—that is, in-person, secret ballot elections—in response to the end of the US national emergency regarding COVID-19, the federal COVID-19 public health emergency declaration, and the World Health Organization's declaration of a global health emergency. The previous General Counsel issued Memorandum GC 20-10 on July 6, 2020, setting protocols for conducting manual elections during the COVID-19 pandemic. The Board later incorporated considerations from that memorandum into its factors for determining the propriety of conducting mail ballot elections (Aspirus Keweenaw, 370 N.L.R.B. No. 45 (Nov. 9, 2020); Starbucks Corp., 371 N.L.R.B. No. 154 (Sept. 29, 2022)). While the memorandum reminds Regional Offices of their discretion when determining whether the NLRB might fairly and safely conduct elections, its reduced restrictions should lead Regional Directors to direct manual elections more frequently than in recent years. (Compare Suggested Manual Election Protocols, NLRB Gen. Counsel Mem. GC 20-10, (July 6, 2010) with Suggested Manual Election Protocols, NLRB Gen. Counsel Mem. GC 20-10 (Revised), (May 16, 2023); see also Guidance on Propriety of Mail Ballot Elections, Pursuant to Aspirus Keweenaw, 370 NLRB No. 45 (2020), NLRB Gen. Counsel Mem. GC 21-01, (Nov. 10, 2020).)
  • April 12, 2023: The General Counsel issued Memorandum GC 23-06 setting out the written responses provided to questions presented by the American Bar Association's Committee on Practice and Procedure Under the NLRA in conjunction with the Committee's 2023 Midwinter Meeting. Specifically, these questions address updated statistical information, the status of various NLRB priorities and plans, including pending rulemaking initiatives, and other matters of interest or concern raised by member practitioners. (Report on the Midwinter Meeting of the Practice and Procedure Under the National Labor Relations Act Committee of the American Bar Association Labor and Employment Law Section, NLRB Gen. Counsel Mem. GC 23-06, (Apr. 12, 2023).)
  • April 5, 2023: The Division of Operations-Management issued Memorandum OM 23-05 advising that the NLRB's interest rate for the third quarter of Fiscal Year 2023 (April 1 to June 30, 2023) will remain at 7%.
  • March 22, 2023: The General Counsel issued Memorandum GC 23-05 to provide guidance concerning the Board's decision in McLaren Macomb, in which the Board scrutinized non-disparagement and confidentiality provisions in a severance agreement (372 N.L.R.B. No. 58 (Feb. 21, 2023)). Among other things, the memorandum:
    • instructs that NLRB Regions will closely scrutinize non-disparagement and confidentiality provisions in severance agreements, but might permit confidentiality of the financial terms in a severance agreement (without assuring that the Board would do so);
    • instructs that NLRB Regions will apply McLaren Macomb retroactively and will allege that the maintenance or enforcement of violative provisions are continuing violations where the allegation of an unlawful proffer of the subject agreement would be untimely;
    • instructs that NLRB Regions will prosecute ULP complaints against employers that retaliate against supervisors who refuse to proffer severance agreements containing provisions deemed unlawful under McLaren Macomb;
    • instructs that NLRB Regions generally will seek an order requiring employers to rescind only the provisions deemed unlawful under McLaren Macomb rather than the entire severance agreement, assuming that the remainder of the agreement is lawful and the employer did not otherwise violate the NLRA when proffering, maintaining, or attempting to enforce it;
    • encourages employers with severance agreements containing overbroad confidentiality or non-disparagement provisions to attempt to remedy those violations before ULP proceedings arise by advising affected employees that the provisions are null and void and that they will not seek to enforce the agreements or pursue any penalties for breaches of the unlawful provisions;
    • provides guidance on drafting narrow non-disparagement and confidentiality provisions, as well as savings clauses to clarify the scope of ambiguous severance agreement or employee handbook provisions; and
    • instructs that the NLRB Regions will pursue ULPs concerning other types of provisions commonly found in severance agreements, including non-compete clauses, non-solicitation clauses, no poaching clauses, broad liability releases and covenants not to sue, and cooperation agreements.
    (Guidance in Response to Inquiries about the McLaren Macomb Decision, NLRB Gen. Counsel Mem. GC 23-05, (Mar. 22, 2023); for more information on McLaren Macomb, see Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights).
  • March 20, 2023: The General Counsel issued Memorandum GC 23-04 identifying the 15 of approximately 60 types of cases identified in Memorandum GC 21-04 that NLRB Regional Offices still must submit to the Division of Advice (Advice) for guidance and coordinated prosecution directives. The memorandum also outlines the types of cases for which Advice has issued guidance or inserts for briefs to NLRB administrative law judges or the Board. Finally, the memorandum outlined the cases in which the Board has reconsidered and may soon reconsider issues flagged in Memorandum GC 21-04. (Status Update on Advice Submissions Pursuant to GC Memo 21-04, NLRB Gen. Counsel Mem. GC 23-04, (Mar. 20, 2023); see NLRB Gen. Counsel Mem. GC 21-04, (Aug. 12, 2021)); for more information on Memorandum GC 21-04, see Legal Update, Newly Appointed NLRB General Counsel Sets Out Key Priorities and Mandates Submissions to Division of Advice.)
  • March 7, 2023: The General Counsel entered the NLRB into a memorandum of understanding (MOU) with the Consumer Financial Protection Bureau (CFPB) creating a formal partnership between the two agencies. The agencies intend to collaborate by sharing information, cross-training agency staff, and partnering on investigative efforts within their authority. Specifically, they plan to address employer surveillance and personal data collection and employer-driven debt.
  • January 12, 2023: The Division of Operations-Management issued Memorandum OM 23-03 setting out pilot program protocols for Regional Offices to use when taking affidavits from non-English speaking witnesses in various situations and providing sample language, jurats, and certifications. The Division of Operations-Management attached the following to the memorandum:
  • January 5, 2023: The Division of Operations-Management issued Memorandum OM 23-02 advising that the NLRB's interest rate for the second quarter of Fiscal Year 2023 (January 1 to March 31, 2023) increased from 6% to 7%.

Office of Public Affairs, National Labor Relations Board

  • September 26, 2023: The Office of Public Affairs announced that the NLRB is transitioning to SecureRelease for the processing of FOIA requests effective October 1, 2023. For more information, see the NLRB's website.

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

  • January 19, 2023: The US Bureau of Labor Statistics published a news release on its annual data on union membership in the US for 2022. Among many other things, the BLS reported that 10.1% of wage and salary workers were union members in 2022, down from 10.3% in 2021. Although the total number of union members increased by 273,000 (or 1.9%) to 14.3 million in 2022, increases in the total number of wage and salary workers resulted in an overall decreased union membership rate. Additionally, 7.1 million or 33.1% of public sector employees belonged to unions in 2022, while 7.2 million or 6% of private sector employees were union members. The 2022 unionization rate (10.1%) is the lowest recorded since the BLS started analyzing this data from its Current Population Survey in 1983.

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

NLRA Operation and Coverage and NLRB Jurisdiction and Preemption

Statutory Inclusions and Exclusions and NLRB Jurisdiction

  • June 13, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the panel (Board) heading the NLRB's judicial and election functions revised its analysis for determining whether a worker is an independent contractor excluded from coverage under the NLRA, overruling SuperShuttle DFW, Inc. (367 N.L.R.B. No. 75 (Jan. 25, 2019)) and reinstating the standard set forth in FedEx Home Delivery (FedEx II) (361 N.L.R.B. No. 55 (Sept. 30, 2014)). Under the restored FedEx II standard, the Board will evaluate independent contractor status using common-law agency principles, guided by the non-exhaustive factors identified in the Restatement (Second) of Agency, Section 220 with no single factor being decisive of the inquiry. In rejecting SuperShuttle's holding that the entrepreneurial opportunity for gain or loss should be the key "animating principle" of the independent contractor analysis, the majority clarified that when evaluating entrepreneurial opportunity, the Board will give weight only to actual (and not merely theoretical) opportunity and assess whether the evidence demonstrates that a putative independent contractor is in fact rendering services as part of an independent business. Consistent with the Board's standard practice, the reinstated independent contractor standard applies retroactively to all pending cases. Member Kaplan dissented. (Atlanta Opera, Inc., 372 N.L.R.B. No. 95 (June 13, 2023); for more information on SuperShuttle, see Legal Update, NLRB Restores Former Independent Contractor Test, Vets Airport Shuttle Franchisees' Entrepreneurial Opportunities.)
  • March 3, 2023: The DC Circuit vacated a decision by the Board dismissing a union's failure-to-bargain ULP charge for lack of jurisdiction, holding that the Board's decision lacked support in the record, defied established law, and created a new rule without reasoned justification. The Board dismissed the ULP case based on the employer's recently announced subjective belief that a long-voluntarily recognized mixed supervisor and non-supervisor bargaining unit consisted only of statutory supervisors with whom the employer had no duty to bargain, but failed to address the issue of whether all of the employees in the unit were in fact supervisors (Sunrise Opers., LLC, 371 N.L.R.B. No. 4 (July 12, 2021)). The court concluded that the Board erred by deciding an issue not previously raised with the administrative law judge (ALJ), ignoring uncontested ALJ factual findings, and failing to reconcile its new analysis with extant Board precedent governing bargaining obligations with respect to voluntarily recognized mixed units. (Int'l Org. of Masters, Mates & Pilots, ILA, AFL-CIO v. NLRB, (D.C. Cir. Mar. 3, 2023).)

Statutory Operation

  • April 24, 2023: The Fifth Circuit held that the Board's denial of a special request to appeal the NLRB General Counsel's withdrawal of a complaint has the practical effect of dismissing the complaint and therefore constitutes a "final order" for purposes of creating appellate jurisdiction under Section 10(f) of the NLRA (29 U.S.C. § 160(f)). On the merits, a 2-1 majority of the panel denied the petition for review on Chevron deference grounds, finding that the Board's determination that the General Counsel had unreviewable prosecutorial discretion to withdraw the complaint at this stage of the proceedings notwithstanding a pending motion for summary judgment was a permissible interpretation of the NLRA. (United Natural Foods, Inc. v. NLRB, (5th Cir. Apr. 24, 2023).)
  • January 27, 2023: The Ninth Circuit held, among other things, that the NLRA does not prohibit the President from removing the NLRB's General Counsel at any time and for any reason, even though the NLRA provides that the General Counsel's Senate-confirmed appointment is to last four years. The Ninth Circuit joined the Fifth Circuit in holding that:
    • the NLRA, including its provision fixing a four-year term for appointed General Counsel, does not affect the President's discretionary power of removal (29 U.S.C. § 153(d));
    • the President's power to remove was essential to the performance of his Article II responsibilities and control over the Executive Branch, as the General Counsel's role in investigative, prosecutorial, and managerial responsibilities is core to the executive function; and
    • the NLRA's language reveals that Congress intended to differentiate between the General Counsel's and the Board's final authority on a prosecutorial versus adjudicatory line, and precedent inferring tenure protections to Senate-confirmed members of boards exercising quasi-legislative or adjudicatory functions was therefore 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 court held that President Biden lawfully removed General Counsel Peter Robb before his term expired and General Counsel Jennifer Abruzzo, whose appointment the Senate confirmed before General Counsel Robb's term otherwise would have ended, had authority to prosecute the ULP in this case. (NLRB v. Aakash, Inc., (9th Cir. Jan. 27, 2023).) The two US Courts of Appeals to have interpreted the President's authority under the NLRA to remove a General Counsel both have found General Counsel Robb's removal lawful and enforced Board orders on ULP complaints prosecuted by subsequent General Counsel appointees. (Exela Enter. Sols., Inc. v. NLRB, 32 F.4th 436 (5th Cir. 2022); see 2022 Traditional Labor Law Developments Tracker: Statutory Operation.)

NLRA Preemption

  • June 1, 2023: In an 8-1 decision reversing the Washington Supreme Court, the US Supreme Court held that the NLRA does not preempt an employer's state tort claims alleging a deliberate destruction of company property during a strike where the union and striking employees fail to take reasonable precautions to protect the employer's property and equipment from foreseeable and imminent danger due to the sudden cessation of work. Because such conduct is not "arguably protected" by the NLRA, and because the union executed the strike in this case in a manner designed to endanger the employer's product rather than mitigate the risk of damage, the Court concluded that the employer's common-law claims against the union may proceed in state court. (Glacier Northwest, Inc. v. Int'l Brotherhood of Teamsters Local Union No. 174, (U.S. June 1, 2023).)

Unfair Labor Practices

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

Employment Policies and Agreements.
  • August 2, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the Board adopted a new standard for evaluating facial challenges to employer work rules that do not expressly restrict employees' protected concerted activity under Section 7 of the NLRA, overruling Boeing Co., LA Specialty Produce Co., and the subsequent work rules decisions applying the categorical classification system articulated therein (365 N.L.R.B. No. 154 (Dec. 14, 2017); 368 N.L.R.B. No. 93 (Oct. 10, 2019); for more information on the decisions applying Boeing, see The NLRB's Boeing Categories for Employment Rules Chart). Under the majority's new burden-shifting analysis, the Board will find a challenged work rule presumptively unlawful under Section 8(a)(1) if the General Counsel proves that the rule has a reasonable tendency to chill employees in the exercise of their Section 7 rights, to be assessed based on the perspective of an economically dependent, layperson employee who contemplates engaging in protected activity and regardless of whether an alternative, noncoercive interpretation of the rule also is reasonable. However, the employer may rebut this presumption by showing that the rule advances a legitimate and substantial business interest that cannot be achieved by a more narrowly tailored rule. If the employer carries this burden, the rule will be found lawful to maintain. Significantly, the Board's decision does not disturb its established doctrines applicable to work rules concerning union solicitation, distribution, or insignia. Consistent with the Board's standard practice, the new standard applies retroactively to all pending cases. Member Kaplan dissented. (Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2, 2023); for more information on this decision, see Article, The NLRB's New, Developing Standard for Assessing Lawfulness of Work Rules.)
  • February 21, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the Board held that a severance agreement—and by extension an employer's proffer thereof—violates Section 8(a)(1) of the NLRA if it contains provisions that have a reasonable tendency to interfere with, restrain, or coerce employees in their exercise of Section 7 rights, overruling Baylor University Medical Center and IGT d/b/a International Game Technology (369 N.L.R.B. No. 43 (Mar. 16, 2020); 370 N.L.R.B. No. 50 (Nov. 24, 2020)). Consistent with prior law, the Board's analysis will focus on the severance agreement's specific language, without consideration of whether the employer engaged in independent discriminatory or unlawful conduct or otherwise harbored animus against Section 7 activity. Examining the agreements challenged in the instant case, the Board concluded that their broad non-disclosure and non-disparagement provisions, and a provision requiring that terms of the agreement be kept confidential with few exceptions were unlawful. Member Kaplan dissented. (McLaren Macomb, 372 N.L.R.B. No. 58 (Feb. 21, 2023); for more information on the overruled decisions, see Legal Update, Separation Agreement with Non-Assistance Clause is Neither Categorically Unlawful Nor Reviewed Under Boeing: NLRB).
Employment Practices.
  • November 14, 2023: The Fifth Circuit refused to enforce the Board's prohibition of Tesla's nondiscriminatory dress code under which employees were permitted to adorn their required company uniform with union insignia. The court rejected the NLRB's standard requiring an employer to prove special circumstances justify any dress policy that might, in any way, interfere with its employees’ right to display union insignia. The Fifth Circuit held that the NLRB's ruling failed to balance properly the competing interests of employees' self-organization and employers' right to maintain discipline in their establishments and relied on precedent involving dissimilar facts. The court therefore held that the NLRB's ruling rested on erroneous legal foundations and had no reasonable basis in law. The court also concluded that the NLRB exceeded its statutory authority under the NLRA because the statute does not authorize the NLRB to deem all company uniforms presumptively unlawful. The Fifth Circuit granted Tesla'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, which the Board overruled in Tesla (see Tesla, Inc., 371 N.L.R.B. No. 131 (Aug. 29, 2022), overruling Wal-Mart Stores, 368 N.L.R.B. No. 146 (Dec. 16, 2019); for more information on Wal-Mart, see Legal Update, Applying Boeing, Dress Code Policy Limiting Certain Union Insignia Lawful in Customer Areas, Unlawful Outside Selling Floor: NLRB; 368 N.L.R.B. No. 146 (Dec. 16, 2019); for more information on the Board's decision in Tesla, see 2022 Traditional Labor Law Developments Tracker: Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights). However, it is unlikely that the NLRB will acquiesce to the Fifth Circuit's intention for it to reinstate Wal-Mart analysis. Wal-Mart applied the Boeing framework to a content neutral dress code policy, which framework the Board overruled in Stericycle (372 N.L.R.B No. 113 (Aug. 2, 2023)). (Tesla, Inc. v. NLRB, (5th Cir. Nov. 14, 2023).)
  • August 31, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the Board held that an employee engages in concerted activity for the purpose of mutual aid or protection when advocating for others, regardless of whether they are statutory employees covered by the NLRA, if such advocacy ultimately might benefit the employee. In this case, an employee advocated for the rehiring of a former co-worker who had lost her eligibility to work in the US two years earlier because of changed circumstances in her immigration status and reapplied for employment. The Board first held that former worker was a statutory employee, either as a former employee or as an applicant, and therefore the employee's advocacy constituted concerted activity for the mutual benefit or protection of another statutory employee. The Board then alternatively held that even if the former worker was not a statutory employee, the employee's advocacy on her behalf was still concerted activity for mutual aid and protection because it furthered her and her co-workers' interests in having the productive former worker reemployed. The Board also remanded the case to the ALJ to determine whether the employer unlawfully forced the advocating employee to resign. More particularly, the ALJ must consider whether the employee forfeited the protections of the NLRA associated with that advocacy by simultaneously disparaging her supervisor around the company by declaring him anti-immigrant and racist because he considered other job applicants while the former employee's sponsorship application was being processed, which assertions the employer investigated and determined to be unsupported. Member Kaplan dissented. (Am. Fed'n for Children, Inc., 372 N.L.R.B. No. 137 (Aug. 26, 2023); see Amnesty Int'l of the USA, Inc., 368 N.L.R.B. No. 112 (Nov. 12, 2019) (advocacy for nonemployee unpaid interns, with no direct implications on employees' own employment terms and conditions, is not "for mutual aid or protection" and therefore not conduct protected under Section 7 of the NLRA), review denied sub nom. Jarrar v. NLRB, 858 F. App'x 374 (D.C. Cir. 2021); for more information on Amnesty International, see Legal Update, Advocating Solely for Nonemployees to Be Paid Is Not NLRA-Protected Activity for Mutual Aid or Protection: NLRB.)
  • August 31, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the Board clarified that it considers the totality of the record evidence when determining whether a single employee's action constitutes concerted activity. The Board overruled Alstate Maintenance, which affirmed that the Board must consider the totality of circumstances when determining if individual action, such as complaining to a supervisor in front of other colleagues, constitutes concerted activity, but identified factors for discerning an employee's non-concerted "mere griping" from an employee's engaging in concerted activity by either:
    • seeking to initiate, induce, or to prepare for group action; or
    • bringing truly group complaints to the attention of management.
    (See Meyers Indus., 268 N.L.R.B. 493 (1984) (Meyers I), remanded sub. nom., Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985); Meyers Indus., 281 N.L.R.B. 882 (1986) (Meyers II), aff'd sub. nom., Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987).) The Board held that Alstate Maintenance erred by restricting the Meyers I and II analyses with those factors and overruling WorldMark by Wyndham because it misconstrued that case as setting a per se rule that an employee initiates group action, and therefore engages in concerted activity, by publicly protesting in a group setting (see 356 N.L.R.B. 765 (2011)). Member Kaplan concurred that the employee in the case engaged in concerted activity, but dissented from the overruling of Alstate Maintenance and the majority's apparent position that an individual's action on a matter of potential group concern can constitute concerted activity, even if taken without an intent towards group action. (Miller Plastic Prods., Inc., 372 N.L.R.B. No. 134 (Aug. 25, 2023); see Alstate Maintenance, LLC, 367 N.L.R.B. No. 68 (Jan. 11, 2019); for more information on Alstate Maintenance, see Legal Update, NLRB Clarifies Analyses of Concerted and Protected Activities.)
  • May 1, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the Board restored three setting-specific standards for evaluating the lawfulness of discipline imposed on employees who engage in offensive or abusive behavior in the course of union or other concerted activity and overruled General Motors LLC, which adopted the Wright Line burden-shifting causation test, analogous to the McDonnell Douglas burden-shifting standard used to prove an unlawful motive in employment discrimination or retaliation cases under anti-discrimination statutes (369 N.L.R.B. No. 127 (July 21, 2020)). Specifically, the Board restored the following tests to determine whether an employee has forfeited the NLRA's protections through misconduct:
    The decision applies retroactively to all pending cases. As a result of this decision, Board orders directing employers to reinstate and otherwise make whole employees discharged for racist, sexist, and other harassing or offensive conduct during union or other concerted activity are likely to increase. (Lion Elastomers LLC, 372 N.L.R.B. No. 83 (May 1, 2023); for information on General Motors, see Legal Update, NLRB Sets Uniform Analysis for Evaluating When Employees Forfeit NLRA Rights Because of Offensive Outbursts During Protected Activity).
  • March 31, 2023: The Fifth Circuit upheld the NLRB's finding that a May 2018 tweet by Tesla CEO Elon Musk on his personal Twitter account constituted an implied threat to rescind stock options as a component of employee compensation in retaliation for unionization at the company's Fremont, California plant, in violation of Section 8(a)(1) of the NLRA. The court concluded that the statement was not an expression of argument or opinion protected under Section 8(c) and that subsequent tweets and communications in which Musk stated his belief that the union (rather than the company) would seek to eliminate employee stock options did not alter the coercive nature of the original tweet. The Fifth Circuit therefore granted enforcement of the NLRB's order requiring Musk to delete the tweet. (Tesla, Inc. v. NLRB, (5th Cir. Mar. 31, 2023), rehearing en banc granted, (5th Cir. July 21, 2023); for more background on this case, see Legal Update, NLRB Pans Tesla Media Contact Provision, Threatening CEO Tweet on Stock Options, Termination and Other Employment Actions.)

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

  • December 6, 2023: The Eighth Circuit vacated the NLRB's order finding that the employer violated Section 8(a)(3) of the NLRA when it fired 17 employees for alleged poor performance, holding that substantial evidence failed to support the Board's conclusion that the employer was motivated by anti-union animus and observing that the Board relied primarily on "suspicion" to support its conclusion that the employer's asserted justification for the firings was pretextual. The court also rejected the NLRB's argument that this case constitutes a mass discharge case and therefore does not require a showing of a specific correlation between the union activity of each employee and their subsequent discharge, noting that the Eighth Circuit has never adopted this standard and, even if the standard were applied, the record lacks substantial evidence of anti-union animus. (Strategic Tech. Inst., Inc. v. NLRB, (8th Cir. Dec. 6, 2023).)
  • August 25, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the Board clarified that its recent decision in Tschiggfrie Properties, Ltd. did not heighten or otherwise modify the General Counsel's initial evidentiary burden under the longstanding Wright Line analysis for determining whether an employer has violated Section 8(a)(3) of the NLRA (368 N.L.R.B. No. 120 (Nov. 22, 2019); 251 N.L.R.B. 1083 (1980), enforced 662 F.2d 899 (1st Cir. 1981), approved in NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (1983); for more information on Tschiggfrie Properties, see Legal Update, NLRB Clarifies General Counsel's Initial Burden in Wright Line Analysis of Employer Motive). Specifically, the majority:
    • reaffirmed that an employer's unlawful antiunion motivation may be inferred from both direct and circumstantial evidence based on the record as a whole; and
    • confirmed that satisfaction of the General Counsel's initial Wright Line burden does not require separate or additional evidence of particularized animus toward a specific employee's protected activity or of a causal nexus between the protected activity and the adverse employment action.
    Member Kaplan issued a separate opinion concurring in the result in this case. (Intertape Polymer Corp., 372 N.L.R.B. No. 133 (Aug. 25, 2023); for more information on Wright Line, see Practice Note, Discipline and Discharge Under the National Labor Relations Act: Discipline Based on Union Activities.)
  • July 14, 2023: In a 2-1 decision (Chairman McFerran and Member Prouty), the Board held that the employer did not discriminate against its union-represented employees by not giving them an "emergency" wage increase, based on a tight labor market and "subject to downward adjustment as market conditions change," that it granted to its unrepresented employees. The majority concluded that there was no discrimination because:
    • there was no evidence of antiunion animus;
    • the employer offered the same wage increase, subject to unilateral reduction when the labor market slackened, to both union-represented and unrepresented employees;
    • the employer accurately informed union-represented employees that the union rejected the conditional wage increase; and
    • the employer did not withhold any benefit. The majority consequently declined to determine whether the emergency wage increase was an existing benefit, which under Arc Bridges would be inherently destructive to withhold, or a new benefit, which under Shell Oil an employer lawfully may withhold. The majority also declined to overrule Shell Oil and extend Arc Bridges to apply to new benefits. (See Shell Oil Co., 77 N.L.R.B. 1306, 1309 (1948) and Arc Bridges, Inc., 355 N.L.R.B. 1222, 1223 (2010), enforcement denied on other grounds 662 F.3d 1235 (D.C. Cir. 2011)).
    The majority also found no bad-faith bargaining because the employer had legitimate, bona fide reasons for the conditions in the emergency wage proposal and accurately informed union-represented employees that the union rejected the offered wage increase. Member Wilcox dissented. (10 Roads Express, LLC, 372 N.L.R.B. No. 105 (July 14, 2023).)
  • May 1, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the Board restored three setting-specific standards for evaluating the lawfulness of discipline imposed on employees for engaging in offensive or abusive behavior in the course of union or other concerted activity and overruled General Motors LLC, which adopted the Wright Line burden-shifting causation test, analogous to the McDonnell Douglas burden-shifting standard used to prove an unlawful motive in employment discrimination or retaliation cases under anti-discrimination statutes (369 N.L.R.B. No. 127 (July 21, 2020). Specifically, the Board restored the following tests to determine whether an employee has forfeited the NLRA's protections through misconduct:
    The decision applies retroactively to all pending cases. As a result of this decision, Board orders directing employers to reinstate and otherwise make whole employees discharged for racist, sexist, and other harassing or offensive conduct during union or other concerted activity are likely to increase. (Lion Elastomers LLC, 372 N.L.R.B. No. 83 (May 1, 2023); for information on General Motors, see Legal Update, NLRB Sets Uniform Analysis for Evaluating When Employees Forfeit NLRA Rights Because of Offensive Outbursts During Protected Activity).

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

  • September 26, 2023: The Third Circuit granted the employer's petition for review and denied the NLRB's cross-petition for enforcement of its September 22, 2022 Decision and Order, holding that the Board erred when it concluded that a five-shift guarantee for specified employees in a CBA expressly set to expire on the date the CBA expired did not become part of the post-expiration status quo after the CBA expired. Consequently, the employer was not obligated to maintain the guarantee until it reached an overall impasse in collective bargaining for a successor CBA and did not unlawfully terminate employees subject to that guarantee after the CBA and the guarantee expired. The court held that ordinary contract principles, not the clear-and-unmistakable-waiver standard, applies in determining whether a provision in an expired CBA becomes part of the post-expiration status quo. However, the court remanded the case to the NLRB to permit the NLRB ALJ to determine whether the employer adequately bargained concerning the effects of its entrepreneurial decision to switch to a digital format before it implemented layoffs, even though the five-shift guarantee for those employees in expired CBA was not part of the post-expiration status quo. (PG Publ'g Co. v. NLRB, (3d Cir. Sept. 26, 2023).) For more information on the Board's underlying decision, see the 2022 Traditional Labor Law Developments Tracker: Section 8(a)(5): Employer Refusal to Bargain.
  • August 26, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the Board overruled the holding in Raytheon Network Centric Systems that an employer's unilateral conduct during bargaining is a lawful continuation of past practice, regardless of the measure of discretion involved, as long as the employer's conduct does not materially vary from its prior actions in kind or degree (365 N.L.R.B. No. 161 (Dec. 15, 2017)). The majority concluded that Raytheon's construction of the past practice defense was incompatible with the US Supreme Court's seminal decision in NLRB v. Katz expressly prohibiting unilateral conduct informed by substantial employer discretion, as well as with the NLRA's core policies disfavoring unilateral action and promoting collective bargaining (369 U.S. 736 (1962); 29 U.S.C. § 151). Consistent with this determination, the majority also overruled subsequent cases applying the Raytheon kind-and-degree analysis, including The Atlantic Group, 371 N.L.R.B. No. 119 (July 27, 2022) and Mike-Sell's Potato Chip Co., 368 N.L.R.B. No. 145 (Dec. 16, 2019), as well as several pre-Raytheon decisions that arguably privileged unilateral employer conduct involving the exercise of substantial discretion. Finally, the majority reaffirmed the principle that an employer may not base a past practice defense on unilateral changes implemented before its employees were represented by the union, when the employer had no statutory duty to bargain. This decision applies retroactively to all pending cases. Member Kaplan issued a separate opinion concurring in the result in this case. (Wendt Corp., 372 N.L.R.B. No. 135 (Aug. 26, 2023).)
  • August 26, 2023: In a companion decision issued on the same day as Wendt Corp. (372 N.L.R.B. No. 135 (Aug. 26, 2023)), a 3-1 majority of the Board (Chairman McFerran and Members Wilcox and Prouty) overruled Raytheon's holding that discretionary changes implemented pursuant to a grant of authority contained in a CBA's management rights clause (or similar contractual reservation of managerial discretion) cannot constitute a past practice that an employer may continue unilaterally after the contract's expiration while the parties bargain for a successor agreement (365 N.L.R.B. No. 161 (Dec. 15, 2017)). Consistent with its decision in Wendt, the majority concluded that Raytheon's expansive construction of the past practice defense was incompatible with the US Supreme Court's decision in Katz and the NLRA's policies disfavoring unilateral action and promoting collective bargaining (369 U.S. 736 (1962); 29 U.S.C. § 151). This decision applies retroactively to all pending cases. Member Kaplan dissented. (Tecnocap LLC, 372 N.L.R.B. No. 136 (Aug. 26, 2023).)
  • August 25, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the Board adopted a new framework governing when an employer is required under Sections 9(a) and 8(a)(5) of the NLRA to bargain with a union without a representation election and when the Board will issue an affirmative bargaining order to remedy an employer's violation of this duty. Specifically, the majority:
    • held that when a union requests recognition as the Section 9(a) representative of a majority of employees in an appropriate unit, the employer must either voluntarily recognize and bargain with the union or promptly (that is, generally within two weeks of the union's demand, subject to unforeseen circumstances in individual cases) file an RM petition with the Board pursuant to Section 9(c)(1)(B) to test the union's majority status or the appropriateness of the unit, if the union has not already filed an election petition pursuant to Section 9(c)(1)(A);
    • overruled Linden Lumber Division, Summer & Co. (190 N.L.R.B. 718 (1971), reversed sub nom Truck Drivers Union Local No. 413 v. NLRB, 487 F.2d 1099 (D.C. Cir. 1973), affirmed 419 U.S. 301 (1974)), but declined to reinstate the previous Joy Silk standard prohibiting an employer from refusing to bargain with a union absent a subjective good-faith doubt as to the union's majority status (85 N.L.R.B. 1263 (1949), enforced in rel. part 185 F.2d 732 (D.C. Cir. 1950)); and
    • held further that if an employer commits a ULP in response to a union campaign that would require setting aside the election, the Board will dismiss any pending election petition and issue a remedial bargaining order based on an evaluation of the best objective evidence of majority support at the time of the union's request for recognition, including a showing of majority support through union authorization cards. This new approach abandons the analysis required under the US Supreme Court's decision in NLRB v. Gissel Packing Co., which focused on whether an employer's past unlawful conduct rendered a fair future rerun election unlikely, and is expected to result in the more frequent imposition of remedial bargaining orders (395 U.S. 575 (1969)).
    The new framework applies retroactively to all pending cases. Member Kaplan dissented. (Cemex Construction Materials Pacific, LLC, 372 N.L.R.B. No. 130 (Aug. 25, 2023), motion for reconsideration denied, 372 N.L.R.B. No. 157 (Nov. 13, 2023)).
  • July 14, 2023: In a 2-1 decision (Chairman McFerran and Member Prouty), the Board held that the employer did not discriminate against its union-represented employees by not giving them an "emergency" wage increase, based on the tight labor market and "subject to downward adjustment as market conditions change," which it granted to its unrepresented employees. The majority concluded that there was no discrimination because:
    • there was no evidence of antiunion animus;
    • the employer offered the same wage increase, subject to unilateral reduction when the labor market slackened, to both union-represented and unrepresented employees;
    • the employer accurately informed union-represented employees that the union rejected the conditional wage increase; and
    • the employer did not withhold any benefit. The majority consequently declined to determine whether the emergency wage increase was an existing benefit, which under Arc Bridges would be inherently destructive to withhold, or a new benefit, which under Shell Oil an employer lawfully may withhold. The majority also declined to overrule Shell Oil and extend Arc Bridges to apply to new benefits. (See Shell Oil Co., 77 N.L.R.B. 1306, 1309 (1948) and Arc Bridges, Inc., 355 N.L.R.B. 1222, 1223 (2010), enforcement denied on other grounds 662 F.3d 1235 (D.C. Cir. 2011)).
    The majority also found no bad-faith bargaining because the employer had legitimate, bona fide reasons for the conditions in the emergency wage proposal and accurately informed union-represented employees that the union rejected the offered wage increase. Member Wilcox dissented. (10 Roads Express, LLC, 372 N.L.R.B. No. 105 (July 14, 2023).)
  • May 3, 2023: The Eleventh Circuit held that the Board erred by dismissing a ULP complaint without reaching the merits of whether the employer unlawfully moved in federal court to compel a terminated bargaining unit employee to arbitrate Title VII race and retaliation claims under a dispute resolution policy signed during the employment application process without having provided the union notice and an opportunity to bargain about whether that policy should apply to bargaining unit employees. The court held that when an employee pursuing a statutory employment discrimination claim is a member of a union at the time of the alleged discrimination, the question of whether that employee can be required to arbitrate the claim depends on the governing collective bargaining agreement (CBA). In this case, the parties' CBA obligated bargaining unit employees to arbitrate contractual claims but did not specify that statutory claims, such as the terminated employee's Title VII claims, must be decided under the CBA's grievance and arbitration process. The court noted that the Petition Clause of the First Amendment generally protects a party's right to seek relief in court and that US Supreme Court precedent prohibits the Board from enjoining a lawsuit or motion as a ULP unless it is baseless and retaliatory or the litigation has an objective that is illegal under federal law. (Bill Johnson’s Rests. v. NLRB, 461 U.S. 731, 737 n.5 (1983).) The court held that the Board:
    • failed to consider whether the object of the employer's litigation (that is, compelling arbitration of the terminated employee's Title VII claims under the dispute resolution policy) would violate the NLRA; and
    • erroneously required the NLRB General Counsel to prove not only that there was an unlawful object, but also that there was some additional "underlying act" beyond the filing of the specific litigation at issue.
    The Eleventh Circuit granted the union's petition for review, vacated the Board's order, and remanded the case to the Board with instructions to determine whether the outcome sought by the employer's motion would violate the NLRA. If the Board so determines, it must order all relief that is appropriate based on the employer's unlawful conduct, including enjoining the employer from prosecuting its motion to compel arbitration. (Teamsters Local 947 v. NLRB, (11th Cir. May 3, 2023).)
  • May 3, 2023: The Board affirmed an NLRB ALJ's conclusions that the employer college unlawfully implemented, without providing notice and an opportunity to bargain to the union representing non-faculty staff or bargaining with the union to an agreement or good-faith impasse:
    • a return-to-campus policy including a return-to-campus date of September 27, 2021; and
    • a change from a mask mandate to a mask recommendation.
    The employer also unlawfully unilaterally changed a Florida-based bargaining unit employee's fulltime remote work status to in-person (Vermont) status, effectively terminating the employee's employment. (Goddard Col. Corp., 372 N.L.R.B. No. 85 (May 3, 2023).)
  • April 20, 2023: By unpublished opinion, the Third Circuit granted enforcement of the NLRB's order requiring an employer to produce specific schedules and attachments to an asset purchase agreement, finding that the NLRB's relevancy determinations were supported by substantial evidence (Crozer Chester Med. Ctr. v. NLRB, (3d. Cir. Apr. 20, 2023); 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).

Unfair Labor Practice Prosecutions and Remedies

Remedies

  • August 25, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the Board adopted a new framework governing when an employer is required under Sections 9(a) and 8(a)(5) of the NLRA to bargain with a union without a representation election and when the Board will issue an affirmative bargaining order to remedy an employer's violation of this duty. Specifically, the majority:
    • held that when a union requests recognition as the Section 9(a) representative of a majority of employees in an appropriate unit, the employer must either voluntarily recognize and bargain with the union or promptly (that is, generally within two weeks of the union's demand, subject to unforeseen circumstances in individual cases) file an RM petition with the Board pursuant to Section 9(c)(1)(B) to test the union's majority status or the appropriateness of the unit, if the union has not already filed an election petition pursuant to Section 9(c)(1)(A);
    • overruled Linden Lumber Division, Summer & Co. (190 N.L.R.B. 718 (1971), reversed sub nom Truck Drivers Union Local No. 413 v. NLRB, 487 F.2d 1099 (D.C. Cir. 1973), affirmed 419 U.S. 301 (1974)), but declined to reinstate the previous Joy Silk standard prohibiting an employer from refusing to bargain with a union absent a subjective good-faith doubt as to the union's majority status (85 N.L.R.B. 1263 (1949), enforced in rel. part 185 F.2d 732 (D.C. Cir. 1950)); and
    • held further that if an employer commits a ULP in response to a union campaign that would require setting aside the election, the Board will dismiss any pending election petition and issue a remedial bargaining order based on an evaluation of the best objective evidence of majority support at the time of the union's request for recognition, including a showing of majority support through union authorization cards. This new approach abandons the analysis required under the US Supreme Court's decision in NLRB v. Gissel Packing Co., which focused on whether an employer's past unlawful conduct rendered a fair future rerun election unlikely, and is expected to result in the more frequent imposition of remedial bargaining orders (395 U.S. 575 (1969)).
    The new framework applies retroactively to all pending cases. Member Kaplan dissented. (Cemex Construction Materials Pacific, LLC, 372 N.L.R.B. No. 130 (Aug. 25, 2023), motion for reconsideration denied, 372 N.L.R.B. No. 157 (Nov. 13, 2023)).
  • April 20, 2023: To promote consistency in the exercise of its remedial discretion under the NLRA, a 2-1 majority of the Board (Chairman McFerran and Member Prouty) outlined a non-exhaustive list of potential extraordinary remedies that the Board will consider when an employer has engaged in unlawful conduct warranting a broad cease-and-desist order. Specifically, the Board discussed the following remedies, to be considered on a case-by-case basis and ordered in addition to its standard remedial provisions when an employer has demonstrated a proclivity to violate the NLRA or engaged in egregious or widespread misconduct:
    • inclusion of an explanation of rights that more comprehensively informs employees of their rights under the NLRA;
    • reading and distribution of the notice and any explanation of rights to employees, which may include a requirement that supervisors, managers, or other officials involved in the violations participate in or be present during the reading or that a union agent to be present during the reading;
    • mailing of the notice and any explanation of rights to affected employees' homes;
    • signing of the notice and any explanation of rights by a responsible individual in the employer's organization;
    • publication of the notice and any explanation of rights in local publications of broad circulation and local appeal;
    • extension of the standard 60-day notice-posting period;
    • imposition of a narrowly tailored visitation requirement permitting Board representatives to inspect the employer's bulletin boards and records to verify ongoing compliance with the Board's order; and
    • reimbursement of the union's bargaining expenses, including making employees whole for wages lost attending bargaining sessions.
    However, the majority emphasized that its decision does not establish any bright-line rules regarding the imposition of these remedies, noting that the listed remedies are not:
    • the only remedies that may be appropriate in a broad order case;
    • necessary in every case meriting a broad order; or
    • limited to cases warranting a broad order.

Union Representation and Elections

Showing of Interest and Election Petitions

  • August 25, 2023: In a 3-1 decision (Chairman McFerran and Members Wilcox and Prouty), the Board adopted a new framework governing when an employer is required under Sections 9(a) and 8(a)(5) of the NLRA to bargain with a union without a representation election and when the Board will issue an affirmative bargaining order to remedy an employer's violation of this duty. Specifically, the majority:
    • held that when a union requests recognition as the Section 9(a) representative of a majority of employees in an appropriate unit, the employer must either voluntarily recognize and bargain with the union or promptly (that is, generally within two weeks of the union's demand, subject to unforeseen circumstances in individual cases) file an RM petition with the Board pursuant to Section 9(c)(1)(B) to test the union's majority status or the appropriateness of the unit, if the union has not already filed an election petition pursuant to Section 9(c)(1)(A);
    • overruled Linden Lumber Division, Summer & Co. (190 N.L.R.B. 718 (1971), reversed sub nom Truck Drivers Union Local No. 413 v. NLRB, 487 F.2d 1099 (D.C. Cir. 1973), affirmed 419 U.S. 301 (1974)), but declined to reinstate the previous Joy Silk standard prohibiting an employer from refusing to bargain with a union absent a subjective good-faith doubt as to the union's majority status (85 N.L.R.B. 1263 (1949), enforced in rel. part 185 F.2d 732 (D.C. Cir. 1950)); and
    • held further that if an employer commits a ULP in response to a union campaign that would require setting aside the election, the Board will dismiss any pending election petition and issue a remedial bargaining order based on an evaluation of the best objective evidence of majority support at the time of the union's request for recognition, including a showing of majority support through union authorization cards. This new approach abandons the analysis required under the US Supreme Court's decision in NLRB v. Gissel Packing Co., which focused on whether an employer's past unlawful conduct rendered a fair future rerun election unlikely, and is expected to result in the more frequent imposition of remedial bargaining orders (395 U.S. 575 (1969)).
    The new framework applies retroactively to all pending cases. Member Kaplan dissented. (Cemex Construction Materials Pacific, LLC, 372 N.L.R.B. No. 130 (Aug. 25, 2023), motion for reconsideration denied, 372 N.L.R.B. No. 157 (Nov. 13, 2023)).

Pre-Election Hearings, Procedures, and Election Bars

  • January 17, 2023: In AFL-CIO v. NLRB, a three-member DC Circuit panel affirmed in part and reversed in part a DC District Court decision ruling on the validity of parts of a 2019 NLRB rule amending, without notice and comment, portions of the NLRB's regulations concerning union representation elections (471 F. Supp. 3d 228 (D.D.C. 2020); see Legal Update, DC District Court Strikes Down Part of NLRB's Election Rule Amendments; NLRB Implements and Provides Guidance on Remaining Amendments). The panel unanimously held that:
    • the statutory provision for direct review in federal appellate courts of NLRB orders regarding ULPs, 29 U.S.C. § 160(f), does not divest the district court of jurisdiction over challenges to NLRB rules exclusively concerning union representation elections;
    • the district court erred in concluding that two amendments to the NLRB's representation election process in the NLRB's 2019 rule (providing that disputes concerning unit scope, voter eligibility, and supervisory status would normally be litigated and resolved by the NLRB Regional Director before an election is directed (pre-election litigation amendment) and setting a presumptive waiting period of 20 business days immediately following the direction of election to allow the NLRB to rule on prospective disputes before the election (waiting period amendment)) did not fall under the Administrative Procedures Act's (APA) procedural exception and could not be implemented without notice and comment (5 U.S.C. § 553(b)(A)); and
    • the district court properly concluded that the 2019 rule amending the NLRB's representation election process, when considered as a whole, was not arbitrary and capricious.
    The panel majority:
    • affirmed that three other amendments—concerning the deadline for employers to provide unions with the eligible employee-voter list (voter list amendment), the timeline for the Regional Director's certification of election results (election certification amendment), and party-selection of election observers (observer amendment)—were substantive and invalidly promulgated without notice and comment;
    • reversed the district court's conclusion that the NLRB's new impoundment procedure was valid, holding that the provision ran contrary to Section 3(b) of the NLRA because it stayed Regional Director actions taken in the past and that might be taken in the future;
    • remanded to the district court consideration of whether the pre-election litigation and waiting period amendments were arbitrary, capricious, and an abuse of discretion in violation of the APA; and
    • remanded to the district court consideration of whether the waiting period amendment constitutes a categorical, preemptive stay on the scheduling of elections in violation of Section 3(b) of the NLRA, and in turn also violates the APA.
    As a result of this decision, the NLRB's current impoundment procedures implemented in 2020 and codified in 29 C.F.R. § 102.67(c) are invalid. The waiting period and pre-election litigation amendments, now held to be procedural and not requiring pre-implementation notice and comment, remain unimplemented and subject to other challenges in further district court proceedings. The voter list, election certification, and observer amendments, now affirmed to be substantive and invalidly promulgated without notice and comment, remain invalid and unimplemented.
    It is expected that the NLRB General Counsel will issue a memorandum advising Regional Directors to return to pre-2019 rulemaking impoundment procedures and not to implement the waiting period and pre-election litigation amendments, at least while litigation challenging those latter amendments is pending. It is further expected that the General Counsel's Office will not petition for rehearing en banc or appeal the DC Circuit's rulings. The Board may stay implementation of the pre-election litigation and waiting period amendments while the litigation is pending. The General Counsel may petition the district court to stay proceedings on the remanded issues or dismiss the case as moot if the majority of the current Board, led by Chairman McFerran who dissented from the 2019 rulemaking, issues a rule reversing most of the 2019's rule's amendments, including all amendments challenged by the AFL-CIO in this litigation. For more information on the 2019 rule, and its partial implementation in 2020, see Key 2020 Amendments to the NLRB Union Election Process Chart.

Election Objections and Challenges

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

LMRA Preemption

  • March 23, 2023: The Illinois Supreme Court affirmed that Section 301 of the LMRA preempts privacy claims under the state Biometric Information Privacy Act (BIPA) asserted by employees covered by a CBA (29 U.S.C. § 185; 740 ILCS 14/1). The court also found that the plaintiff's particular claim was preempted where the method for clocking in and out of work was a subject covered by the governing CBA's broad management rights clause. (Walton v. Roosevelt Univ., 2023 IL 128338 (Ill. Mar. 23, 2023).)

Section 301 Claims

  • May 3, 2023: The Second Circuit realigned its analysis for applying a presumption of arbitrability to comport with the US Supreme Court's analysis in Granite Rock Co. v. Teamsters (561 U.S. 287, 296 (2010)). Under Granite Rock, courts may invoke a presumption of arbitrability only where the parties' dispute concerns a valid and enforceable agreement to arbitrate that is ambiguous as to its scope. Before and after Granite Rock, some courts in the Second Circuit applied a two-step framework under which they determined whether the scope of the arbitration clause was broad or narrow, and on finding the former, applied a presumption of arbitrability even to collateral matters. The Second Circuit held that these precedents mistakenly prioritized deciding whether a presumption of arbitrability applies over determining whether a particular dispute is covered by the language to which the parties agreed. Abrogating these precedents, the Second Circuit noted that it will apply ordinary contract interpretation principles to determine whether parties intended to make a dispute arbitrable and a rebuttable presumption of arbitrability only as a last resort. Applying Granite Rock, the Second Circuit held that a CBA's grievance and arbitration provisions unambiguously covered a dispute about whether and to what extent the employer owed medical benefits to retirees who retired under prior CBAs that included post-retirement medical benefit provisions and identical grievance and arbitration language. Consequently, the Second Circuit affirmed a district court judgment compelling the employer to arbitrate the union's grievance under the LMRA using a different analysis and expressed no view on the merits of the union's grievance. (Loc. Union 97, Elec. Workers v. Niagara Mohawk Power Corp., (2d Cir. May 3, 2023).)