On December 10, 2024, the National Labor Relations Board (NLRB or “the Board”) took advantage of its Democratic majority in the waning days of the Biden administration to issue its decision in Endurance Environmental Solutions, LLC, and overturn a Trump-era standard that had strengthened management rights clauses in collective bargaining agreements.Continue Reading NLRB Weakens Ability of Employers to Rely on Management Rights Clauses in Collective Bargaining Agreements . . . For Now
The Supreme Court Rejects a Watered-Down Approach to Preliminary Injunctions
On June 13, 2024, the United States Supreme Court held that when considering the National Labor Relation Board’s (the “Board” or “NLRB”) request for a preliminary injunction under Section 10(j) of the National Labor Relations Act (the “NLRA”), district courts must apply the traditional four-factor test for injunctive relief rather than a less stringent two-factor test used by many courts in evaluating the Board’s injunction requests. Starbucks Corp. v. McKinney, No. 23-367 (See here).Continue Reading Can I Please Get Four Shots of Espresso Instead of Two?
On Wednesday, August 30, 2023, the National Labor Board (“NLRB” or “the Board”) issued a pair of decisions—Wendt Corp., 372 NLRB No. 135, and Tecnocap LLC, 372 NLRB No. 136—that highlight the Board’s continued focus on increasing the power of organized labor and limiting employer authority. The Wendt and Tenocap decisions overturn Raytheon Network Centric Systems, 365 NLRB No. 161, and Mike-Sell Potato Chip Co., 368 NLRB No. 145, which allowed employers to unilaterally change employees’ working conditions (during an initial contract negotiating period or while a new contract is being negotiated) so long as such changes were “similar in kind and degree” to the employer’s past practice (i.e., one that happened with “such regularity and frequency” that workers could expect it to happen again).Continue Reading NLRB Continues to Rewrite the Rules to Limit Employers’ Authority
Today, in perhaps the most significant change in federal labor law in more than 50 years, the National Labor Relations Board (“NLRB” or “Board”) announced a new framework that determines when employers are required to recognize and bargain with a union upon demand, without a representation election. Continue Reading Unionization Upon Demand:NLRB Announces Most Significant Change to Labor Law in 50 Years
On August 2, 2023, the National Labor Relations Board (“NLRB” or the “Board”) rejected an employer-friendly standard in favor of a modified and significantly less employer-friendly standard when evaluating whether a workplace rule violates the National Labor Relations Act (“NLRA”). Stericycle, 372 NLRB No. 113 (2023). In recent years, the Board’s opinion of what constitutes interference, restraint or coercion under the NLRA has changed depending on who is in the White House or on the Board. This new ruling confirms the Board’s intention to increase scrutiny of employer’s workplace rules and policies.Continue Reading NLRB to Start Scrutinizing Employer Policies More Closely
On June 13, 2023, the National Labor Relations Board (“NLRB”) issued its decision in The Atlanta Opera, Inc., 372 NLRB No. 95 (2023), overturning the current standard for determining independent contractor status and returning to a previous test. Because section 2(3) of the National Labor Relations Act (“NLRA”) excludes independent contractors from the broad group of workers covered by the statute, whether workers are considered employees or independent contractors determines whether workers can exercise rights guaranteed by the NLRA, such as forming unions and engaging in protected concerted activities.Continue Reading NLRB Refashions Independent Contractor Test
The National Labor Relations Board (“NLRB”) continues to expand the scope of remedies available when an employer commits an unfair labor practice under the National Labor Relations Act (“NLRA”). On April 20, 2023, the NLRB issued a decision in Noah’s Ark Processors, LLC d/b/a/ WR Reserve, 372 NLRB No. 80 (2023), finding that a Nebraska meat processor bargained in bad faith and unlawfully implemented its last, best, and final offer in the absence of a valid impasse.Continue Reading NLRB Puts Employers On the Hook for Expanded Remedies for Unfair Labor Practices
Employers now have some guidance on the National Labor Relations Board’s (“NLRB”) recent decision finding that certain non-disparagement and confidentiality provisions in severance agreements violate the National Labor Relations Act (“NLRA”). In McLaren Macomb, the NLRB held that an employer violates the NLRA by merely offering a severance agreement with such provisions. As a reminder, Mclaren Macomb applies to all non-supervisory employees at all employers, not just employees who are members of a union and not just to unionized employers. A more detailed discussion of the case itself can be found here.Continue Reading NLRB General Counsel Answers Questions on Severance Agreements in New Memorandum
Employers will need to rethink the terms they include in severance agreements under the National Labor Relation Board’s (“NLRB”) ruling issued in McLaren Macomb, 372 NLRB No. 58 (2023). According to the February 21, 2023 decision, an employer violates the National Labor Relations Act (“NLRA”) and commits an unfair labor practice by offering a severance agreement containing certain confidentiality and non-disparagement provisions. Importantly, this decision applies to employers who are unionized, as well as those who do not have any unionized employees.Continue Reading NLRB Curbs the Scope of Severance Agreements forNon-Supervisory Employees at All Employers
On September 30, 2022, the National Labor Relations Board (“NLRB”) held that employers violate Section 8(a)(5) of the National Labor Relations Act when they cease dues checkoff after the expiration of a collective bargaining agreement. Valley Hospital Medical Center, Inc., 371 NLRB No. 160 (“Valley Hospital II”). The split decision came on remand from the Ninth Circuit after protracted litigation in federal courts.Continue Reading NLRB Rules No Unilateral Changes to Dues Checkoff After Contract Expiration