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.

June 28, 2023: Governor Ned Lamont signed Public Act No. 23-172 amending Connecticut General Statutes Section 38a-1084 to create a special enrollment period for Access Health CT (the state's health insurance marketplace) for employees whose health coverage is terminated by an employer because of a labor dispute, such as a strike or lockout (Conn. Gen. Stat. Ann. § 38a-1084 (West)). The amendment is effective as of October 1, 2023.

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.

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' right 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.

March 24, 2023: Governor Gretchen Whitmer signed the "Restoring Workers' Rights" bill package (see 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.

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.)

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.)

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 Operations, 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).)

UPDATE: On remand, the Board issued a Supplemental Decision and Order confirming its jurisdiction over the proceeding and applying established Board precedent to hold that the employer, having voluntarily recognized a bargaining unit comprised of statutory supervisors and statutory employees, could not invoke the mixed nature of the unit as a defense to the ULP allegations. Accordingly, the Board found that the employer violated Section 8(a)(5) of the NLRA as alleged in the complaint. (Sunrise Operations, LLC, 373 N.L.R.B. No. 30 (Feb. 27, 2024).)

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 that the NLRA does not prohibit the President from removing the NLRB 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:

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.)

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).)

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).

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:

(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.)

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:

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:

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 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).

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:

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:

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:

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:

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).

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:

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:

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:

(Noah's Ark Processors, LLC, 372 N.L.R.B. No. 80 (Apr. 20, 2023), enforced (8th Cir. Apr. 8, 2024).)

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:

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)).

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 panel majority:

( (D.C. Cir. Jan. 17, 2023).)

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.

April 27, 2023: The Seventh Circuit upheld the two-part analytical framework adopted by the Board to determine whether a union's grant of hiring hall benefits to potential voters during the critical period before a union representation election constitutes objectionable conduct that could warrant setting aside the election (NLRB v. Jam Prods., Ltd., (7th Cir. Apr. 27, 2023); for more background, see Legal Update, NLRB Clarifies Analysis for Determining an Objectionable Grant of Pre-Election Hiring Hall Benefits).