National Labor Relations Board

NLRB Asserts Employment Protections for Student-Athletes and Seeks to Hold the University of Southern California, Pac-12 Conference and NCAA Liable

December 20, 2022

By Peter A. Jones, Thomas G. Eron, and Richard J. Evrard

The National Labor Relations Board (NLRB) General Counsel has issued a complaint against the University of Southern California (USC), the Pac-12 Conference and the NCAA claiming that certain USC student-athletes are employees under the National Labor Relations Act (NLRA), and that the conference and the NCAA, along with the university, can be held jointly responsible employers for the treatment of those students under the law. This NLRB litigation portends fundamental consequences for private college and university athletic programs.

Read More >> NLRB Asserts Employment Protections for Student-Athletes and Seeks to Hold the University of Southern California, Pac-12 Conference and NCAA Liable

NLRB Restores Obama-Era Bargaining Unit Test

December 16, 2022

By Peter H. Wiltenburg

On Dec. 14, 2022, the National Labor Relations Board (NLRB or Board) issued a decision that (again) modifies its standard for bargaining-unit determination cases where a labor union seeks to represent a unit that contains some, but not all, of the job classifications at a particular workplace. The decision, in American Steel Construction, Inc., revives the Board’s prior test governing such determinations set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), which was overruled in PCC Structurals, 365 NLRB No. 160 (2017), and The Boeing Co., 368 NLRB No. 67 (2019).

In its 2011 Specialty Healthcare decision, the Board identified the elements to be satisfied if the proposed union was to be recognized. Among these were that the unit is “sufficiently distinct.” If a party contested the petitioned-for unit on this ground – thereby arguing that certain employees not included in the proposed unit should have been – it would bear the burden of proving that there was an “overwhelming community of interest” between the petitioned-for employees and excluded employees in order to add the excluded employees to the petitioned-for unit. This was a difficult standard for employers to meet and widely recognized as a boon for union organizing.  In the wake of Specialty Healthcare, unusual “microunits” were organized, including cosmetic and fragrance counter employees at a Macy’s department store.  

In its 2017 PCC Structurals decision, the Board overruled Specialty Healthcare and adopted a different test for the “sufficiently distinct” element: instead of the “overwhelming community of interest” test, the Board adopted a test whereby “the interests of those within the proposed unit and the shared and distinct interests of those excluded from that unit must be comparatively analyzed and weighed.” This test therefore removed the burden from the employer challenging the composition of the unit and instituted a balancing test that did not explicitly begin with deference to the petitioned-for unit. The test gave employers far greater ability to oppose recognition of a unit consisting of some, but not all, of the employees within their workplace.  

This week’s decision in American Steel expressly overrules PCC Structurals and Boeing and reinstates the “overwhelming community of interest” standard of Specialty Healthcare. The Board elaborated that this means that when there are only “minimal differences, from the perspective of collective bargaining… then an overwhelming community of interest exists, and that classification must be included in the unit.” The Board indicated that meeting this standard would be akin to showing that “there is no rational basis for the exclusion.” So long as the petitioned-for unit consists of a clearly identifiable group of employees with a shared “community of interest,” the Board will presume the unit to be appropriate. The impact of this decision is to again empower unions and employees to organize along narrower lines of job classification. Even prior to American Steel, employers have seen a significant uptick in organizing activity in the last several years. This decision will likely further invigorate unions to again focus on “micro units” as a path to organizing workplaces, and employers again face the prospects of multiple distinct bargaining units among their employees.

If you have any questions or would like additional information regarding this decision, or other legal developments, please contact Peter Wiltenburg or any attorney in Bond’s labor and employment practice.

NLRB Proposes to Roll Back Union Election Rules

December 1, 2022

By Samuel G. Dobre and Michael Kratochvil

On Nov. 2, 2022, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking seeking to strengthen protections for unions in the election process. Among other things, the proposal would alter the rules instituted by the Trump Board in 2020 that made it easier for employees to decertify incumbent unions. The proposed changes are purportedly intended to protect workers’ ability to make free choices regarding union representation and to encourage collective bargaining.

Read More >> NLRB Proposes to Roll Back Union Election Rules

NLRB General Counsel Issues Memo on Electronic Monitoring, Artificial Intelligence and Employee’s Section 7 Rights

November 10, 2022

By Lisa R. Feldman

With the proliferation of remote work options in today’s post-pandemic world, employers’ electronic monitoring of their employees’ daily activities has become more routine. On October 31, the National Labor Relations Board (Board) general counsel (GC) released a new memo cautioning against the potential violations of Section 7 of the National Labor Relations Act (Act) that use of such electronic monitoring may raise by “significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer[.]” The GC announced intent to urge the Board to “zealously enforc[e]” existing Board precedent in this context and protect employees rights “to the greatest extent possible.”

Read More >> NLRB General Counsel Issues Memo on Electronic Monitoring, Artificial Intelligence and Employee’s Section 7 Rights

National Labor Relations Board Stepping Up Penalties for Unfair Labor Practices

October 25, 2022

By Samuel G. Dobre and Michael Kratochvil

In a September 2021 memorandum, the National Labor Relations Board (NLRB) signaled its intent to exercise the full extent of its power to enforce stricter and more costly penalties for unfair labor practices (ULPs). The change was made evident in June 2022, when the Board issued a consequential damages award in a settlement agreement for the first time ever.

Read More >> National Labor Relations Board Stepping Up Penalties for Unfair Labor Practices

NLRB Proposes New Rule That Would Expand the Scope of Joint Employment

September 12, 2022

By Gianelle M. Duby

On Sept. 6, 2022, the National Labor Relations Board (Board) released a Notice of Proposed Rulemaking that would revise the standard for determining joint-employer status under the National Labor Relations Act (NLRA). The proposed standard would rescind and replace the joint-employer rule that has been in effect since April 27, 2020.

Read More >> NLRB Proposes New Rule That Would Expand the Scope of Joint Employment

The Demise of Roe v. Wade: Employment and Benefits Considerations

July 15, 2022

By Thomas G. Eron, Nihla F. Sikkander, Daniel J. Nugent, and Anthony Levitskiy

On June 24, 2022, in Dobbs v. Jackson Women’s Health Org., 2022 WL 2276808 (June 24, 2022), the U.S. Supreme Court overruled Roe v. Wade 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) and held that (i) the U.S. Constitution does not confer a right to abortion and (ii) the authority to regulate abortion is held by the states. The statute at issue in Dobbs was Mississippi’s Gestational Age Act, which banned abortion after 15 weeks except in a medical emergency or in the case of severe fetal abnormality. Employers across the nation must now determine how to evaluate and respond to the far-reaching implications of this decision.

Read More >> The Demise of Roe v. Wade: Employment and Benefits Considerations

Appellate Division Holds Attorney General’s COVID-19 Retaliation Claims are Preempted by Federal Law

May 17, 2022

By Hannah K. Redmond

In February 2021, New York State Attorney General, Letitia James, filed a lawsuit against Amazon alleging that the retailer failed to sufficiently prioritize hygiene, sanitation and social distancing at its fulfillment center and delivery station in New York City.1 The Complaint also alleged that Amazon unlawfully terminated employees at those locations who complained about conditions they perceived to be unsafe.2 The Complaint asserted causes of action under various sections of the New York Labor Law (NYLL), including Sections 200, 215 and 740, all of which “relate to the obligations of New York businesses to adequately protect the health and safety of employees and to refrain from discrimination or retaliation against employees who complain about potential NYLL violations.”3

Read More >> Appellate Division Holds Attorney General’s COVID-19 Retaliation Claims are Preempted by Federal Law

Employers Take Notice: The NLRB, the DOL and the EEOC Are Working Together to Combat Employer Retaliation

March 4, 2022

By Nihla F. Sikkander

The National Labor Relations Board (NLRB), the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor (DOL), three federal agencies that enforce major federal labor and employment laws, are joining forces to combat employer retaliation. Employers must be aware that these federal agencies are moving forward with concrete steps to jointly coordinate efforts to take action and litigate against workplace violations and are incentivizing workers to come forward with their concerns.

Read More >> Employers Take Notice: The NLRB, the DOL and the EEOC Are Working Together to Combat Employer Retaliation

Lessons from Google: What Employers Should Know About Minority Unions

February 16, 2021

By Thomas G. Eron and Hannah K. Redmond

It is no secret that private sector union membership has dramatically decreased over the past several decades. This reality has forced labor organizers to get creative with their efforts. Perhaps this is one reason why stories of a union presence at tech industry giant, Google, have recently gained so much attention. Reports of a “minority union” at Google began to swirl earlier this year after a group of several hundred Google employees announced their creation of the “Alphabet Workers Union.” Named for Google’s parent, Alphabet, Inc., the Alphabet Workers Union was supported by, and now affiliated with, the Communication Workers of America. The union claimed its membership quickly grew to more than 800 members.

Read More >> Lessons from Google: What Employers Should Know About Minority Unions

No Time to Waste – The NLRB and Signs of What’s to Come Under the New Administration

February 10, 2021

By Stephanie H. Fedorka and Erin S. Torcello

The first few weeks in the Biden administration have been nothing short of busy. At the National Labor Relations Board (Board), it seems like there has been no time to waste in prioritizing items on the administration’s agenda.

Only hours after being sworn into office on Jan. 20, 2021, President Biden took unprecedented action and fired Trump-appointed General Counsel Peter Robb. Former General Counsel Robb was reportedly offered the opportunity to resign, but refused, and was then fired. Robb’s term was set to expire in November of this year. A day later, Biden terminated second in command, Deputy General Counsel Alice Stock. President Biden appointed Peter Sung Ohr to serve as Acting General Counsel of the Agency. Ohr, most recently served as the Regional Director of Region 13 of the NLRB in Chicago.

Read More >> No Time to Waste – The NLRB and Signs of What’s to Come Under the New Administration

Arbitration Agreement Does Not Bar New York State Division of Human Rights Proceeding

January 28, 2021

By Nicholas P. Jacobson and Thomas G. Eron

Earlier this month, the federal court for the Western District of New York issued a decision in Charter Communications, Inc. v. Derfert, No. 20-cv-915, 2021 WL 37726 (W.D.N.Y. Jan. 4, 2021) holding that an employment arbitration agreement did not preclude a hearing before the New York State Division of Human Rights (the Division) on an employee’s discrimination claim.

Read More >> Arbitration Agreement Does Not Bar New York State Division of Human Rights Proceeding