The Court of Appeals for the D.C. Circuit has recently revived a portion of an election rule promulgated by the NLRB during the Trump administration. In 2019, the NLRB promulgated an election rule which modified several “quickie” election procedures established by the NLRB during the Obama administration in 2014. The 2014 Rule sped up the union election timeframe, and the 2019 Rule aimed to address criticisms that the timeframe was too short a time in which to meet the various new obligations triggered by the filing of a union representation petition while also adequately preparing for the representation hearing. The AFL-CIO sued in 2020 to block the 2019 Rule.
Continue Reading U.S. Appeals Court Partially Revives Trump-Era Union Election Rule

On December 16, 2022, a National Labor Relations Board (Board) majority (Members Kaplan and Ring) issued a Decision and Order holding that an employer’s conduct did not warrant setting aside a union election where the employer failed to strictly adhere to regulations requiring employers to provide unions a voter list comprised of employee names and contact information (commonly known as an Excelsior list).
Continue Reading Common Sense Wins the Day (sort of) in Board Ruling Concerning Substantial Regulatory Compliance

Dozens of business groups submitted comments on December 7 to oppose the National Labor Relations Board’s proposed joint employer rule, arguing it would interfere with business-to-business contracting and needlessly entangle companies in collective bargaining negotiations related to employees they do not control.
Continue Reading Business Groups Oppose NLRB’s Proposed Far-Reaching Joint Employer Rule

Yesterday, the National Labor Relations Board (“Board” or “NLRB”) in American Steel Construction, Inc., 372 NLRB No. 23 (2022) decided that employers must meet a heightened burden to expand a voting unit sought by a union in a union election. The decision is a significant development because it makes it easier for unions to organize workforces. And it marks yet another reversal of precedent by the Board to the benefit of unions. (We’ve discussed prior reversals here and here.)

Continue Reading NLRB Reinstates “Micro Unit” Standard Making it Easier for Unions to Cherry Pick Voting Units

On November 4, 2022, the NLRB published a Notice of Proposed Rulemaking (“NPRM”) inviting public comment on a proposal that would rescind and replace the current “Fair Choice and Employee Voice” rule which was adopted by the prior Board-majority on April 1, 2020.  Three distinct policies regarding election-blocking charges, voluntary recognition, and construction industry bargaining relationships are under consideration.  The Board’s stated intent is to return the law in each of these three areas to that which existed prior to the April 1, 2020 rule. 
Continue Reading NLRB PROPOSES TO RESCIND “FAIR CHOICE AND EMPLOYEE VOICE” ELECTION RULES

On Monday, October 31, National Labor Relations Board General Counsel Jennifer Abruzzo issued GC Memo 23-02, “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.” Specifically, the Memo seeks to address the growing employer use of “a diverse set of technological tools and techniques to remotely manage workforces.” Examples of these technologies include wearable devices, security cameras, GPS tracking devices, keyloggers, and audio recordings.
Continue Reading NLRB GC To Urge Board to Regulate Electronic Worker Monitoring and Management

On September 7, 2022, the NLRB released a Notice of Proposed Rulemaking (“NPRM”) and request for public comment regarding its latest iteration of the joint employer rule.  The NPRM proposes to rescind and replace the current final rule, entitled “Joint Employer Status Under the National Labor Relations Act,” which took effect on April 27, 2020.

Continue Reading NLRB Proposes New Joint Employer Rule

Yesterday, a California State Assembly Committee killed a bill that would have extended collective bargaining rights to a larger group of state employees – namely, legislative staffers. Existing state law excludes certain state employees from collective bargaining. The Legislature Employer-Employee Relations Act would “provide employees of the Legislature the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.” If passed, the bill would extend collective bargaining rights to nearly 2,000 California legislative employees. California’s Public Employment and Retirement Committee rejected the bill in a 2-3 vote this Wednesday, due to unresolved “procedural, legal, and administrative problems,” according to the Committee Chair.

Continue Reading California Legislature Votes ‘No’ On Legislative Staffer Unionization

Earlier this year, the Office of the General Counsel (GC) of the  National Labor Relations Board (Board) issued an Advice Memorandum in Case 05-CA-281089 instructing Board Region 5  to issue a complaint alleging  that the employer, LT Transportation (a shuttle bus transportation provider), violated Section 8(a)(1) of the National Labor Relations Act, when it banned nonemployee union organizers from boarding its shuttles because of their identity as union organizers.
Continue Reading NLRB GC Advocates for Limiting Employer’s Private Property Rights