On August 31, 2023, the National Labor Relations Board issued its 3-1 decision in American Federation for Children, Inc. 372 NLRB No. 137, overturning Amnesty International, 368 NLRB No. 112 (2019), and dramatically expanding the definition of what constitutes “protected concerted activity” under Section 7 of the National Labor
Articles Discussing Labor Law At The Federal Level, Including Issues Under The National Labor Relations Act (NLRA).
Past Practice in the Past? NLRB Narrows Past Practice Defense for Employer Unilateral Action During Bargaining
On August 30, 2023, the National Labor Relations Board (NLRB) released two decisions that will make it more difficult for employers to implement past practices during a break in bargaining or at an impasse, opening the door for unions to hold employers hostage by dragging out collective bargaining.
Top Five Labor Law Developments for August 2023
The National Labor Relations Board issued new election rules and a decision overhauling the unionizing process. 88 Fed. Reg. 58076 (2023); 372 NLRB No. 130 (2023).
Labor Board Expands an Employer’s Duty to Bargain During Contract Negotiations
Overruling crucial aspects of precedent, the National Labor Relations Board has expanded an employer’s duty to bargain with employees under the National Labor Relations Act following the expiration of a labor contract and during initial collective-bargaining negotiations. Tecnocap LLC, 372 NLRB No. 136 (Aug. 26, 2023); Wendt Corporation, 372 NLRB No. 135 (Aug. 26, 2023).
Labor Board: Employee Protected Concerted Activity Determined by Totality of the Circumstances
The National Labor Relations Board has returned to the “totality of the circumstances” test for determining when individual employee action constitutes protected concerted activity. Miller Plastic Products, Inc., 372 NLRB No. 134 (Aug. 25, 2023). Employee activity will be assessed under the previous tests of Meyers Industries Inc., 281 NLRB 882 (1986), using a holistic, fact-based approach to determine whether individual complaints or protests have a link to group action.
HEADS, I WIN – TAILS, YOU LOSE: The NLRB’s Decision in Cemex and Its Recently (Re)issued Election Rules Pave the Way for Unions to Organize Workplaces Quickly With or Without an Election
Executive Summary: For nearly 90 years, whether employees desired union representation was determined through a secret ballot election administered by the National Labor Relations Board (NLRB or Board). Though the National Labor Relations Act (Act) permits the use of other means to establish a union’s majority support, the Board and courts have long recognized the “method that best protects employees’ freedom of choice and best ensures majority rule is a Board-conducted, secret ballot election.” After legislative efforts to replace secret ballot elections with “card check” recognition failed (see, e.g., the Employee Free Choice Act and the Protecting the Right to Organize Act), the unelected NLRB has effectively done so on its own.
Act Fast: National Labor Relations Board Reverts to Shortened 2014 Representation Election Timeframe
The National Labor Relations Board issued a final rule revising representation election procedures that will take effect on December 26, 2023. When implemented, the final rule will return to the “Quickie” or “Ambush” election rules originally adopted in 2014.
NLRB’s Cemex Decision – Not Exactly Card Check, but Awfully Close
NLRB adopted a modified “Joy Silk doctrine,” which facilitates union organizing by card check instead of a secret ballot election. When a union demands recognition with a majority of employee-signed cards, the employer must either (i) recognize and bargain with the union or (ii) promptly file an RM
Labor Board Issues New Election Rules and Made It Easier for Workers to Unionize without a Vote
The National Labor Relations Board (Board) continued its efforts to facilitate union organizing this week and upended significant aspects of prior precedent by: (1) issuing a Final Rule amending (and expediting) election procedures; and (2) making it easier for unions to circumvent those election procedures through a demand for recognition.
NLRB Adopts New Union-Friendly Recognition Standard
On August 25, 2023, the National Labor Relations Board (NLRB) adopted a new standard for union representation that requires an employer to recognize and bargain with a union that has demonstrated majority status unless the employer challenges the union’s support through an employer-initiated NLRB election, and does so without committing
NLRB Reverts to Quick Union Elections Rules
On August 24, 2023, the National Labor Relations Board (NLRB) announced a new final rule for union elections that revives the prior “ambush election” rules. The new rule compresses the time period between the time a representation petition is filed and the actual election. The impact of the rule is
Potential NFL Running Back Union? Lessons To Be Learned from Derrick Henry And Other Top RBs As They Discuss Feeling Devalued In Their Positions
Is it Time to Rewrite Employee Handbooks after NLRB Decision in Stericycle, Inc.? ›
General workplace rules are considered “presumptively unlawful” under the new NLRB standard if they could be interpreted to limit employee rights.
Top Five Labor Law Developments for July 2023
The National Labor Relations Board revised its standard for assessing whether an employer’s work rules unlawfully restrict protected employee activity under the National Labor Relations Act. Stericycle, Inc.,372 NLRB No. 113 (Aug. 2, 2023).
NLRB Adopts Strict New Standard for Assessing Lawfulness of Workplace Rules
For Questions / More Information
To discuss how the Stericycle decision affects your organization, and for assistance in reviewing and revising your workplace policies, please contact your HRW attorney or:
Alicia Ward (award@hrwlawyers.com / 617-348-4357) Pete Moser (pmoser@hrwlawyers.com / 617-348-4323); Jeff Hirsch (jhirsch@hrwlawyers.com / 617-348-4315); or Any member of the HRW Team.