1/21/25
The court affirmed the lower boards use of the remedial framework outlined in Thryv, Inc., 372 NLRB No. 22 (2022). The court found the framework does not authorize compensatory or consequential damages because the Board is not enforcing private rights. Rather, the framework allows the Board to follow 10(c) and give effect to the public policy of the act, labor peace, vindicating public rights. The framework authorizes equitable relief when it takes the parties back to where they were before the violation because it incentives them to follow the act and behave peacefully. Make-whole relief can be either legal or equitable. Here, it is equitable.
12/27/24
NLRB v. Starbucks Corp, No. 23-1953 (3d Cir. 2024)
The court vacated the portion of the NLRB’s order requiring Starbucks to compensate the employees for direct or foreseeable pecuniary harms, finding it exceeded the Board’s authority under the NLRA. The court held the NLRA authorizes the Board to order equitable relief but not legal relief. The court held the standard the Board promulgated in Thryv, Inc., 372 NLRB No. 22 (2022) improperly grants legal relief because it focuses on making the employee whole, while equitable relief would focus on making the employer pay back what they should have paid.
12/10/24
Endurance Environmental Solutions, LLC. 373 NLRB No. 141 (2024)
The Board restored the “clear and unmistakable” waiver standard for evaluating employers’ contractual defenses to allegations that they have unlawfully changed the working conditions of union-represented employees without first giving the union notice and an opportunity to bargain. The decision restores that standard, previously followed by the Board for more than 70 years and endorsed by the Supreme Court. The Board overruled MV Transportation, Inc., 368 NLRB No. 66 (2019), in which an earlier Board had adopted the “contract coverage” test, which made it easier for employers to to avoid engaging in collective bargaining over workplace changes.
11/15/24
State Of Texas v. United States Department of Labor et al, No. 4:2024cv00499 – Document 76 (E.D. Tex. 2024)
The district court held the executive, administrative, and professional employee exception to the Fair Standards and Labor Act does not allow the FTC to implements rule based solely on salary but may only use salary as a proxy for the duties of the employees. The district court held the overtime rule promulgated by the FTC was not used as a proxy but instead as a predominate, if not exclusive, test and set aside the rule as exceeding the FTC’s authority.
11/13/24
Amazon Services, Inc. 373 NLRB No. 136 (2024)
The Board overruled Babcock & Wilcox Co., 77 NLRB 577 (1948) and held that an employer interferes with employees’ decision whether to exercise their Section 7 rights within the meaning of Section 8(a)(1) of the Act when it compels employees to attend a captive-audience meeting on pain of discipline or discharge.
11/8/24
Siren Retail Corp d/b/a Starbucks, 373 NLRB No. 135 (2024)
The Board overruled Tri-Cast, Inc., 274 NLRB 377 (1985) and clarifying the test the Board will use to evaluate whether employer predictions about the impact of unionization on the relationship between individual employees and their employer are unlawful threats.
While Tri-Cast deemed most employer statements about the impact of unionization on the relationship between individual employees and their employer to be categorically lawful, moving forward the Board will analyze such statements under the same longstanding test it uses to evaluate other potentially threatening or coercive statements. That approach, which is grounded in the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), mandates that – to be lawful – employer predictions of negative impacts from unionization “must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond [its] control.” If such a prediction is not grounded in objective fact, or predicts negative consequences that would result from the employer’s own actions, it is “no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion.”
8/20/24
Ryan LLC, vs Federal Trade Commission, No. 3:24-CV-00986-E (N.D. Tex. 2024)
The district court held the FTC does not have the power to make substantive rules related to unfair methods of competition. It interpreted 6(g) as giving the FTC procedural rulemaking authority, but not substantive rulemaking authority. The court set aside the the FTC noncompete rule.
7/9/24
Lion Elastomers v. National Labor Relations Board, No. 23-60270 (5th Cir. 2024)
The Fifth circuit overturned Lion Elastomers, 372 NLRB No. 83 (2023). The NLRB first decided if a concerted activity lost protection under the Atlantic Steel standard. While on appeal, the Board overturned Atlantic Steel in General Motors. The Fifth Circuit remanded to the Board to apply General Motors. The Board instead overruled General Motors. In this decision, the Fifth Circuit said overturning General Motors exceeded the scope of the remand, and vacated and remanded again to the NLRB to apply General Motors to this case.
6/13/24
Starbucks Corp. v. McKinney, 602 U.S. ___ (2024)
The Supreme Court held that when considering the NLRB’s request for a preliminary injunction under §10(j), district courts must apply the traditional four-factor test articulated in Winter v. Natural Resources Defense Council, Inc. This test requires a plaintiff to make a clear showing that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest. The Court found that nothing in §10(j) displaces the presumption that these traditional principles govern. The Court rejected the Board’s argument that statutory context requires district courts to apply the traditional criteria in a less exacting way. The Court concluded that the reasonable-cause standard substantively lowers the bar for securing a preliminary injunction by requiring courts to yield to the Board’s preliminary view of the facts, law, and equities.
4/23/24, Effective Date 7/1/24
The final rule updates and revises the regulations issued under section 13(a)(1) of the Fair Labor Standards Act implementing the exemption from minimum wage and overtime pay requirements for executive, administrative, and professional (EAP) employees. Revisions include increases to the standard salary level and the highly compensated employee total annual compensation threshold, and a mechanism that provides for the timely and efficient updating of these earnings thresholds to reflect current earnings data.
4/23/24, Effective Date 9/4/24
The Federal Trade Commission issued a final rule to promote competition by banning noncompetes nationwide, protecting the fundamental freedom of workers to change jobs, increasing innovation, and fostering new business formation.
4/17/24
Muldrow v. City of St. Louis, 601 U.S. ___ (2024)
The Court held that an employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.
4/12/24
Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. ___ (2024)
The Court held that a transportation worker does not need to work for a company in the transportation industry to be exempt under §1 of the Federal Arbitration Act (FAA). The Court emphasized that the relevant question is what the worker does for the employer, not what the employer does generally.
3/8/24
US Chamber of Commerce v. NLRB, No. 6:23-cv-00553, Opinion and Order (E.D. Tex. March 8, 2024)
U.S. District Judge J. Campbell Barker of the Eastern District of Texas vacated the National Labor Relations Board’s recent rule on determining the standard for joint-employer status and the Board’s rescission of the 2020 joint-employer rule. Judge Barker had previously stayed the joint-employer rule until March 11, 2024.
2/21/24
Home Depot USA, Inc. 373 NLRB No. 25 (2024)
An employer violated the National Labor Relations Act when it discharged an employee for refusing to remove the hand-drawn letters “BLM” — the acronym for “Black Lives Matter” — from their work apron. Applying existing precedent, the Board reasoned the employee’s refusal to remove the BLM marking was “concerted” because it was a “logical outgrowth” of prior concerted employee protests about racial discrimination in their workplace and because it was an attempt to bring those group complaints to the attention of Home Depot managers. The employee’s conduct was also “for mutual aid or protection” because the issue of racial discrimination involved employees’ working conditions.
10/27/23, Effective Date 12/26/23
88 FR 73946 , 29 CFR 103
Vacated – US Chamber of Commerce v. NLRB, No. 6:23-cv-00553, Opinion and Order (E.D. Tex. March 8, 2024)
Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and conditions of employment, which are defined exclusively as: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.
10/26/23
American Federation for Children, Inc., 372 NLRB No. 137 (2023)
The Board revived prior precedent by holding the Act protects statutory employees advocating on behalf of non-employees,. The Board held that by seeking support for the non employee the employee was engaged in concerted activity, and the activity was for the purpose of the “mutual aid and protection” of the employees because of the solidarity principle and the impact the non-employee has on the workplace. The solidarity principle is “where one employee comes to the aid of another and can reasonably expect help in return.” It also “involves the prospect of reciprocal help between statutory employees and non-employees who work together in the same workplace, for the same employer.”
10/25/23
Miller Plastic Products, Inc., 372 NLRB No. 134 (2023)
The Board returned to the “totality of the circumstances” test for determining when individual employee action constitutes protected concerted activity. Employee activity will be assessed using a holistic, fact-based approach to determine whether individual complaints or protests have a link to group action.
8/26/23
Wendt Corporation, 372 NLRB No. 132 (2023)
The Board overruled Raytheon Network Centric Systems (2017), which had given employers greater latitude to make unilateral changes affecting a unionized workforce during a contractual hiatus or during negotiations for a first contract. The Board explained that allowing employers to justify discretionary unilateral changes during such time periods as a “past practice” was both inconsistent with the Supreme Court’s decision in NLRB v. Katz, 369 U.S. 736 (1962) and undermined the pro-bargaining policies of the National Labor Relations Act. The Board in Wendt also reaffirmed the longstanding principle that an employer may never rely on an asserted past practice of making unilateral changes before employees were represented by a union (when the employer had no duty to bargain) to justify unilateral changes after the workers select a bargaining representative.
8/26/23
Technocap LLC, 372 NLRB No. 136
In Tecnocap, the Board overruled a different aspect of Raytheon that had not been addressed in Wendt. The Board held that an employer’s past practice of unilateral changes that was developed under a management-rights clause in a collective-bargaining agreement cannot authorize unilateral changes made after the agreement expires and while bargaining for a new agreement is under way. The Board explained that the Raytheon holding harmed the collective-bargaining process in two ways: It forced unions to bargain to regain terms of employment lost to post-expiration unilateral changes, and it discouraged unions from agreeing to management-rights clauses in the first place.
08/25/2023
Stericycle, Inc., 372 NLRB No. 113 (2023)
Work rules will be presumptively unlawful if they have a “reasonable tendency” to chill employees from exercising their organizing rights or otherwise have a coercive meaning. The burden will be on the employer to prove that its “legitimate and substantial business interests cannot be accomplished with a more narrowly tailored rule.” The decision impacts most employers but more so in a union organizing context, because any employer rule deemed unlawful by the Board can result in an order forcing the employer to bargain with the union without an election.
08/25/2023
Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023)
The updated election framework provides that when a union requests recognition based on majority employee support, the employer must either recognize the union and begin bargaining or immediately file an RM petition seeking an election to verify the union’s status as bargaining representative. If the employer opts to file an RM petition and is subsequently found to have committed an unfair labor practice that would require setting aside the election under existing standards, the NLRB will dismiss the employer’s petition and order the union be recognized as the sole bargaining representative of the petitioned-for unit.
8/25/23, Effective Date: 12/26/2023
88 FR 58076, 29 CFR 102
The NLRB announced a final rule substantially returning representation case procedures to those that existed following the Board’s promulgation of a rule concerning representation case procedures in 2014 to enhance the fair, efficient, and expeditious resolution of representation cases. The rule cuts down on the delay between an RM petition and an election.
06/13/2023
The Atlanta Opera, Inc., 372 NLRB No. 95 (2023)
The Board’s decision lowers the threshold for finding employee status and, thus, whether workers are afforded protections under the Act, including the right to unionize and collectively bargain. The Board again will assess all aspects of the working relationship, with no single factor being determinative. The entrepreneurial opportunity factor will depend on whether the individual is rendering services as part of an independent business or performing functions that are essential to the employer’s normal business operations. Any weight given to entrepreneurial opportunity also must be actual (not theoretical) and must take employer restrictions into consideration.
6/1/23
Glacier Northwest, Inc., 598 U.S. ___ (2023) Docket No. 21-1449
Supreme Court holds that the National Labor Relations Act does not preempt tort suits against a union that called for a work stoppage that foreseeably resulted in damage to the employer’s property.
5/01/23
Lion Elastomers, 372 NLRB No. 83 (2023)
Vacated – Lion Elastomers v. National Labor Relations Board, No. 23-60270 (5th Cir. 2024)
The Board reverted to its pre-2020 “setting-specific” standard for determining whether an employer lawfully disciplines an employee for otherwise protected concerted activity that crosses the line into unprotected abusive (“opprobrious”) conduct. Rather than focus on the employer’s motivation, the Board will consider the following factors to gauge the lawfulness of the discipline:
1. The locus of the activity;
2. The subject-matter of the otherwise protected conduct;
3. The nature of the employee’s outburst; and
4. Whether the outburst was somehow provoked by the employer’s ULPs.
04/20/2023
Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023)
The Board’s decision lists remedies it will consider in cases involving respondents who have shown a proclivity to violate the Act or who have engaged in egregious or widespread misconduct. The list of remedies includes forcing an employer to post in its facility a more comprehensive explanation of employees’ rights, requiring a supervisor or other official to read verbatim a notice containing a detailed accounting of employee rights under the Act, mailing the same notice to employees’ homes, and reimbursing the union’s bargaining expenses and bargaining committee employees’ lost wages.
02/21/2023
McLaren Macomb, 372 NLRB No. 58 (2023)
The Board reinstated its standard for restricting employee severance agreements. The ruling applies to all severance agreements for employees covered by the Act and restricts certain confidentiality and non-disparagement clauses, as well as releases of claims under the Act. The decision emphasized the importance of employees’ rights to make public statements about the workplace and opined that severance agreements restricting such statements would chill employees’ rights to participate in Board investigations or filing ULP charges.
12/16/22
Bexar County Performing Arts Center Foundation, 372 NLRB No. 28 (2022) (Bexar County II)
Return to New York New York test. “Property owner may lawfully exclude [offduty contractor] employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline (as those terms have come to be defined in the Board’s case law).”
12/15/22
Sunbelt Rentals, Inc., 372 NLRB No. 24 (2022)
NLRB reaffirmed the Johnnie’s Poultry standard arising when “an employer questions employees for the purpose of investigating facts relevant to an unfair labor practice complaint ‘where such interrogation is necessary in preparing the employer’s defense for trial of the case.’” The employer “must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee’s subjective state of mind, or otherwise interfering with the statutory rights of employees.”
12/14/22
American Steel Construction, Inc., 372 NLRB No. 23 (2022)
Where an employer seeks to expand a petitioned-for bargaining unit on the ground that the smallest appropriate unit excludes additional employees, the employer has the burden of proving that the excluded workers share “an overwhelming community of interest” with those within the proposed unit such that there is no rational basis for their exclusion.
12/13/22
Thryv, Inc., 372 NLRB No. 22 (2022)
Challenged – NLRB v. Starbucks Corp, No. 23-1953 (3d Cir. 2024)
Employers that violate the Act can be required to compensate employees “for all direct or foreseeable pecuniary harms suffered as a result of the [employer’s] unfair labor practice.” Board broadened the “make-whole” remedy the Board can order, holding that “make-whole relief encompasses, at a minimum…direct or foreseeable pecuniary harms that are a consequence of” an employer’s unfair labor practices (emphasis added). Accordingly, now things like medical expenses incurred by unlawfully separated employees who would have had those expenses covered by an employer’s health insurance plan but for the unlawful separation are recoverable in NLRB proceedings. So too are items like credit card interest or rental car expenses incurred after loss of an employer-provided vehicle that could also be used for personal purposes.
O'Rourke Law 