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On May 1, 2023, the National Labor Relations Board issued its decision in Lion Elastomers, 372 NLRB No. 83 (2023), which will make it more challenging for employers to discipline workers who engage in abusive workplace conduct in connection with Section 7 activity under Board law. The decision overrules General Motors, 369 NLRB No. 127 (2020), which logically and uniformly applied the Board’s traditional Wright Line burden-shifting framework to cases involving employee outbursts. The Board’s decision reinstates a triad of “setting-specific” tests previously used to determine whether an employee’s opprobrious conduct forfeited the Act’s protection. …
Continue Reading NLRB Restores Leniency for Employee Abusive Conduct and Workplace Outbursts

The National Labor Relations Board (“Board” or NLRB) recently decided in Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023) to impose extraordinary remedies upon an employer who violated a court order imposing certain collective bargaining obligations and committed multiple violations of the NLRA throughout the collective bargaining process. The extraordinary remedies included: the posting and distribution of a notice explaining employee rights under the NLRA (in addition to the standard notice that states the NLRB found NLRA violations, the violator will not commit those violations in the future, and the remedies); the reading of the notices in the presence of employees by the employer’s chief executive officer, or, if the employer prefers, by a Board agent in the presence of the CEO; and site visits by an NLRB agent to determine compliance for one year.
Continue Reading NLRB Discusses Extraordinary Remedies Available for Egregious or Habitual Violations

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

On March 22, 2023, the General Counsel of the National Labor Relations Board (NLRB or the “Board”), Jennifer Abruzzo, issued a memorandum providing guidance in light of the NLRB’s recent decision in McLaren Macomb, 372 NLRB No. 58 (2023). As previously reported, the Board in McLaren Macomb held that overly broad non-disclosure and non-disparagement provisions in severance agreements violate employee rights under the National Labor Relations Act (NLRA or the “Act”). The General Counsel’s memorandum—which is directed to the Board’s regional offices over which she exercises supervisory authority—seeks to clarify the scope of the McLaren Macomb decision, including: the types of provisions that may violate the NLRA; language that may be acceptable in light of the decision; whether the decision applies retroactively to previously executed severance agreements; and the potential applicability of the decision to supervisors. The memorandum is not legally binding, but it does give employers a more informed roadmap for how the Board initially will handle unfair labor practice (“ULP”) charges challenging severance agreements.…

Continue Reading NLRB General Counsel Issues Guidance Memorandum Regarding Severance Agreements

An Administrative Law Judge (ALJ) of the National Labor Relations Board (Board) recently issued a decision which hints that changes might be on the horizon for how the National Labor Relations Act (Act) is applied towards educational institutions with religious affiliations. Saint Leo University Inc., 2023 WL 2212789 (2023). …
Continue Reading NLRB Seeks To Expand Jurisdiction Over Educational Institutions with Religious Affiliations

The National Labor Relations Board (“Board” or NLRB) decided in McLaren Macomb, 372 NLRB No. 58 (2023) that an employer violated the National Labor Relations Act (NLRA) by offering furloughed employees severance agreements that contained confidentiality and non-disparagement provisions. “A severance agreement is unlawful if its terms have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their [NLRA] rights, and that employers’ proffer of such agreements to employees is unlawful,” announced the Board. In rendering the decision, the NLRB overruled Baylor Univ. Med. Ctr., 369 NLRB No. 43 (2020)[1] and IGT d/b/a Int’l Game Tech., 370 NLRB No. 50 (2020). In those cases, the Board decided that employers did not independently violate the NLRA simply by presenting employees with severance agreements containing non-assistance, non-disclosure, and non-disparagement provisions that arguably restricted NLRA rights absent some additional circumstances.
Continue Reading NLRB Rules Severance Agreements with Confidentiality Provisions Violate Employee NLRA Rights

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