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Employers in all industries should take notice that efforts to unionize appear to be spiking in 2024.  Indeed, data made available by the National Labor Relations Board (NLRB) shows that, in just the first few months of the current fiscal year, the number of union representation cases, or so-call “R-cases,” filed with the NLRB is on a meteoric rise – indicating that recent trends with respect to union organization efforts may be amplifying.

This was predicted in our prior article about the NLRB’s decision in Cemex Construction Materials Pacific, LLC, which established a new framework for the union representation process. Under Cemex, when a union requests recognition based on a majority support of the employees to be in the bargaining unit, an employer must either: (1) recognize and bargain with the union; or (2) promptly file a RM petition to challenge the union’s claim of majority support by seeking an election, pursuant to Section 9(c)(1)(B) of the NLRA, unless the union has already filed a petition for a representation election pursuant to Section 9(c)(1)(A) of the Act. The time for the employer to act is limited, as it is generally held that the employer has only 14 days after the demand for recognition in which to file an RM petition.Continue Reading Employers take notice: Union representation petitions are spiking in 2024

In an exceptional development that could dramatically change collegiate sports in the United States, the Regional Director for Region 1 of the National Labor Relations Board (NLRB) recognized the fifteen players of the Dartmouth College men’s varsity basketball team as employees with a right to unionize under the National Labor Relations Act (NLRA), in a decision issued on February 5, 2024. As a result, the players are eligible to vote on whether they want to be represented by the Service Employees International Union, Local 560 for collective bargaining purposes. If a majority of the voting players vote in favor of the union, they will create the first-ever union of NCAA athletes.

The Dartmouth College decision signifies a shift by the NLRB. In 2015, the NLRB declined to exercise jurisdiction over a similar bid to unionize by Northwestern’s football team, thereby declining that opportunity to recognize student athletes as employees at that time. The opportunity was seized in the Dartmouth College decision, however, as the Regional Director distinguished the Northwestern decision – perhaps most notably, based on the fact that Dartmouth College competed in the Ivy League Conference, exclusively with other private schools that were subject to the NLRB’s jurisdiction, where Northwestern competed in the Big Ten Conference, in which every other school in the conference was a state-run institution that was not subject to the NLRB’s jurisdiction.Continue Reading NLRB’s recognition of Dartmouth College men’s basketball team as employees could change collegiate sports forever

Among a flurry of recent pro-union decisions, the National Labor Relations Board (Board) issued a decision on December 14, 2022 restoring an Obama-Era test for determining the appropriateness of a bargaining unit in representation proceedings. This recent decision is expected to give unions more power in determining the makeup of bargaining units and enable smaller…

Since its publication on November 5, 2021, employers have been reviewing the Occupational Safety and Health Administration’s (OSHA) 490-page Emergency Temporary Standard (ETS) and taking steps to create and update their employment policies to comply with it.

The National Labor Relations Board (NLRB or the Board) has added another item to the to-do lists of those employers covered by the ETS with unionized workforces. On November 10, 2021, NLRB’s operations management division issued a memo reminding unionized employers of their bargaining obligations under the National Labor Relations Act in connection with policy changes being contemplated in light of the ETS.Continue Reading Complying with OSHA’s ETS? Don’t forget about your duty to bargain, says NLRB

At a union event on Labor Day in 2020, President Biden vowed to be “the strongest labor president you have ever had.”  Although he has only been in office a short time, his administration is already taking steps to honor that pledge.  Specifically, on February 4, 2021, House and Senate Democrats introduced the Protecting the Right to Organize (PRO) Act.   The PRO Act previously passed the House in February 2020 and President Biden has committed to sign it into law if passed in this Congress.  If enacted, the PRO Act will fundamentally reshape the American workplace.
Continue Reading Labor law under the Biden administration: A preview of the PRO Act

**Please note this blog has been updated as of January 25, 2021. Read our update here.

Beginning November 20, 2020, President Trump’s Executive Order 13950 On Combating Race and Sex Stereotyping (“EO 13950” or “The Order”) will fundamentally reshape the way government contractors conduct diversity training.  Signed September 22, 2020, the Order prohibits federal workplace trainings that “promote race or sex stereotyping or scapegoating.” Importantly for private employers, federal contractors also “will not be permitted to inculcate such views in their employees.” On October 7, 2020, the Department of Labor issued guidance in the form of “frequently asked questions” regarding EO 13950.
Continue Reading Executive Order 13950 on diversity training: Hidden traps for employers

The National Labor Relations Board (the “Board”) issued a decision on July 21, 2020, which will aid employers in their ability to discipline or discharge an employee who engaged in abusive or offensive conduct in connection with protected concerted activity. In General Motors LLC, 369 NLRB No. 127 (2020), the Board modified its standard for determining under what circumstances profane language or sexually or racially offensive speech loses the protection of the National Labor Relations Act (the “Act”).

Before today, there were several circumstance-specific standards used by the Board in determining whether an employee was lawfully disciplined or discharged when they made profane, racist or sexually harassing comments in connection with Section 7 activity. There was one standard for workplace confrontations with supervisors or managers as applied in Atlantic Steel. A second standard was used for examining social media posts and most other  interactions between employees, referred to as the “totality of circumstances.”  Still, another standard was used when offensive statements or conduct occurred on the picket line, as set forth in Clear Pine Mouldings. All of these standards assumed that the employee’s Section 7 activity was inseparable from the abusive comments and conduct. Additionally, in many circumstances the outcome of those cases conflicted widely with an employer’s obligations under federal, state and local discrimination laws.Continue Reading NLRB ends long-time standard which protected obscene, racist and sexually harassing speech in connection with Section 7 activity

Several labor organizations, along with racial and social justice organizations, conducted a mass walkout on July 20, 2020 to protest racial inequality and working conditions in the United States.  Thousands of workers in more than 200 cities walked off the job on a full-day strike while others who were unable to strike for a full day walked out about for eight minutes.  According to the Strike for Black Lives website, the purpose of the strike was to demand higher wages, better jobs, the right to unionize, and healthcare for all.  These organizations specifically call for corporations to address racism in the workplace, raise wages, provide healthcare, and provide ample personal protective equipment (PPE), among other things.

These types of mass walkouts raise several considerations for employers as they attempt to balance their support for racial and social justice with their tolerance of competing views and their need to maintain operations.  While some employers may allow their employees to participate with little to no disruption to their operations, others, such as hospitals, will have to find ways to continue to run their operations (perhaps by hiring temporary workers) if they find themselves with reduced staff.  Other employers may be forced to temporarily close or take other measures to manage the sudden loss of available employees.
Continue Reading Responding to employee advocacy and workplace walkouts during times of protest

In another victory for employers and a further retreat from Obama-era policy, the National Labor Relations Board (“NLRB” or the “Board”) recently ruled that employers do not violate the National Labor Relations Act (“NLRA” or the “Act”) by maintaining a policy that allows employers to monitor employees on the job by searching employees’ personal property on company premises and/or company networks and devices.

In a June 24, 2020 decision – Verizon Wireless, 369 NLRB No. 108 (2020) – the NLRB reversed an Administrative Law Judge’s (“ALJ”) ruling that Verizon Wireless and its related entities’ (collectively, “Verizon”) policy permitting company searches of workers’ personal property violated Section 8(a)(1) of the Act by infringing upon employees’ rights to engage in concerted activity for mutual aid or protection under Section 7 of the Act.  The Board also upheld the ALJ’s ruling that another portion of Verizon’s policy permitting company monitoring of company computers and devices did not violate the Act.
Continue Reading NLRB greenlights company policy allowing searches of workers’ personal property on company premises and company devices and networks

On May 30, 2020, a U.S. district court judge issued an order that prevents certain provisions of a new rule governing election procedures from going into effect. However, employers should note that the National Labor Relations Board (NLRB) intends to implement all other portions of the new rule that the court’s order did not address, effective immediately.

The new rule, which the NLRB issued at the end of 2019, amended procedural revisions from 2014 related to the processing of union representation cases. Critics of the 2014 revisions argued that those revisions truncated the time frame between the filing of a petition and the preelection hearing, making it difficult to simultaneously meet various obligations triggered by the filing while also preparing for the hearing.

In many respects, the new rule marks a return to pre-2014 procedures and practices, and provides parties with additional time in multiple areas of the election process.

Continue Reading Judge denies implementation of portions of major union election rule changes