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The National Labor Relations Board’s (NLRB or the “Board”) Office of General Counsel (“GC”) released an internal advice memorandum on February 27, 2023, which indicates that the NLRB will seek to enforce the National Labor Relations Act (NLRA or the “Act”) against employers that allegedly retaliate against employees for having workplace discussions about racism. The memorandum—which concerned employment actions the Kaiser Permanente Bernard J. Tyson School of Medicine, Inc. (the “Tyson Medical School”) took with respect to a faculty member/physician following various discussions about race in the workplace—sets forth an expansive interpretation of conduct that constitutes protected concerted activity under Section 7 of the Act so as to include general discussions “working to end systemic racism, including its impact at the [e]mployer.”…
Continue Reading The National Labor Relations Board Seeks to Regulate Discussions of Race in the Workplace

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

The National Labor Relations Board (NLRB) and the Department of Justice (DOJ) recently announced a new partnership, which, in their words, will “better protect free and fair labor markets and ensure that workers can freely exercise their rights under the National Labor Relations Act.”  Through a memorandum of understanding (MOU), the agencies have agreed to collaborate with the stated aim of advancing workers’ rights to obtain fair market compensation and to freely exercise their legal rights under labor laws.
Continue Reading NLRB & DOJ Announce New Partnership

Scabby the Rat is a familiar sight in disputes between unions and employers. Scabby, a giant inflatable rat with red eyes, fangs, and claws, is often placed outside the places of business of employers with whom a union has a labor dispute (the “primary” employer).  Recently, the NLRB again addressed the issue of whether such union protests can be directed against a “secondary” neutral employer who does business with the primary employer but who is not party to the underlying labor dispute.
Continue Reading Scabby the Rat, Coming to a Business Near You? It’s Possible.

With the ushering in of a new administration, several changes have quickly taken place at the National Labor Relations Board. Within hours of taking office, the Biden administration removed Trump appointee NLRB General Counsel Peter Robb and replaced him with interim General Counsel Peter Ohr.
Continue Reading Changes Afoot at the NLRB Under the New Administration

On May 13, 2019, in Outokumpo Stainless USA, LLC v. N.L.R.B., No. 17-15498 (11th Cir.), the Court of Appeals for the Eleventh Circuit enforced an NLRB order finding that stainless steel producer Outokumpo’s posting of a side letter along with a NLRB settlement notice “constituted non-compliance with the terms of the Settlement Agreement” and that “default judgment was thus proper under the plain terms to which the Company had previously agreed.” …
Continue Reading Employer’s Posting of Side Letter Explaining NLRB Settlement Notice Breaches Settlement Agreement