On April 11, 2022, the National Labor Relations Board’s General Counsel urged the Board to revive the long-abandoned Joy Silk doctrine, which has not been in effect in nearly 50 fifty years. 
Continue Reading NLRB General Counsel Urges The NLRB To Revive The Joy Silk Doctrine For Union Elections

The National Labor Relations Board (“NLRB” or “Board”) recently indicated an openness to revisiting the independent contractor standard employed by the Board when assessing whether individuals are covered under the National Labor Relations Act (“Act”).
Continue Reading NLRB Is Looking to Review (Again) Independent Contractors And Who is Covered

The National Labor Relations Board indicated in January that it may reconsider its legal standard for assessing whether employer work rules violate the National Labor Relations Act, and invited amicus briefs on the subject.  Several business groups, including the Chamber of Commerce of the United States of America, filed briefs on March 8, 2022 urging the Board to maintain its existing standard under The Boeing Co., 365 NLRB No. 154 (2017).
Continue Reading Business Groups Oppose NLRB’s Efforts to Change Work Rules Standard

The Department of Labor Wage and Hour Division and the National Labor Relations Board released a Memo of Understanding announcing that the two agencies will be collaborating “to strengthen the agencies’ partnership through greater coordination in information sharing, joint investigations and enforcement activity, training, education, and outreach.” The MOU took effect upon both agencies’ approval in early December and will remain in effect for five years.
Continue Reading DOL, NLRB Will Collaborate on Investigations, Share Information

On November 10, 2021, three federal agencies tasked with enforcing workplace laws announced a joint initiative to combat retaliation in the workplace.  As a refresher, the EEOC protects a worker’s right under Title VII and other non-discrimination laws to enjoy a workplace free from harassment and discrimination.  The DOL enforces federal labor standards per the Fair Labor Standards Act, as well as health and safety regulations through OSHA.  The NLRB generally protects a worker’s right to organize to improve working conditions, among other rights guaranteed by National Labor Relations Act. 
Continue Reading EEOC, DOL, and NLRB Announce Joint Initiative to Protect Workers from Retaliation for Exercising their Rights in the Workplace

On November 10, 2021, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo issued a memorandum outlining employers’ bargaining obligations with respect to compliance with OSHA’s Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”).
Continue Reading NLRB General Counsel Issues Memo Regarding Bargaining Obligations for Vaccine Mandate

On September 8, 2021, the House Education and Labor Committee issued proposed legislation in connection with the House’s new spending bill. Among other pro-union proposals issued in connection with the Protecting the Right to Organize (PRO) Act, the proposed legislation seeks to amend the National Labor Relations Act (NLRA) by banning class and collective action waivers.
Continue Reading Proposed Federal Legislation Quietly Threatens Viability of Class and Collective Action Waivers Through New House Spending Bill

A recent memorandum released by National Labor Relations Board (Board) General Counsel Jennifer Abruzzo previews a Biden-appointed Board’s agenda and priorities. In the August 12, 2021 “Mandatory Submission to Advice” memorandum, General Counsel Abruzzo identifies three types of cases and subject matter areas that the General Counsel would like to “carefully examine.” These three types of cases and subject matter areas include: (1) cases where the Trump-appointed Board overruled past Board precedent, (2) “other initiatives and areas that, while not necessarily the subject of a more recent Board decision, are nevertheless ones [the General Counsel] would like to carefully examine,” and (3) “casehandling matters traditionally submitted to Advice.” Accordingly, General Counsel Abruzzo has instructed the Board’s Regional Directors to seek advice for cases that fall into these three categories.
Continue Reading Memo from NLRB General Counsel Signals Upcoming Shifts in Board Precedent

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.

On June 1, 2021, the U.S. Court of Appeals for the D.C. Circuit overturned a NLRB determination that a manager’s incorrect blaming of a union for discrepancies in an employee’s paid-leave time constituted an unfair labor practice. The pivotal issue was whether the manager’s statements had a reasonable tendency to interfere with employees’ labor rights. As discussed below, the D.C. Circuit rejected the NLRB’s determination that the manager’s statements had a reasonable tendency to interfere with employees’ labor rights, reasoning that the manager’s misstatements were lawful expressions of the employer’s opinions.
Continue Reading D.C. Circuit Clarifies Boundaries of Protected Employer Expressions