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On August 30, 2023, the National Labor Relations Board (NLRB) released two decisions that will make it more difficult for employers to implement past practices during a break in bargaining or at an impasse, opening the door for unions to hold employers hostage by dragging out collective bargaining.

On August 25, 2023, the National Labor Relations Board (NLRB) adopted a new standard for union representation that requires an employer to recognize and bargain with a union that has demonstrated majority status unless the employer challenges the union’s support through an employer-initiated NLRB election, and does so without committing an unfair labor practice. The ruling, combined with the resuscitation of the Board’s 2014 “ambush election” rules, will make it more difficult for employers to respond to demands for recognition from unions claiming to have majority support from the employees at issue.

On August 24, 2023, the National Labor Relations Board (NLRB) announced a new final rule for union elections that revives the prior “ambush election” rules. The new rule compresses the time period between the time a representation petition is filed and the actual election. The impact of the rule is to make it more difficult for employers to educate employees about unions and unionization prior to a vote.

On August 2, 2023, the National Labor Relations Board (NLRB) adopted a new burden-shifting standard for evaluating whether work rules infringe upon employees’ rights under Section 7 of the National Labor Relations Act (NLRA)—that may require employers to narrowly tailor rules to avoid violating the act.

On June 13, 2023, the National Labor Relations Board (NLRB) overruled its 2019 independent contractor standard focused on whether workers have “entrepreneurial opportunity” and returned to a common law multi-factor analysis that could lead to more workers being found to have been improperly classified as independent contractors.

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Winter 2023 issue of the Practical NLRB Advisor. This issue provides an overview of a host of controversial decisions and sharply divided opinions issued by the National Labor Relations Board (NLRB) resulting from the mid-December 2022 departure of Republican Board member John F. Ring.

On June 1, 2023, the Supreme Court of the United States ruled that the National Labor Relations Act (NLRA) does not preempt an employer’s state court tort claims alleging a union intentionally destroyed the employer’s property during a strike. The ruling is significant for employers in that it could open the door for lawsuits against unions to protect their interests and recover the value of property destroyed during increasingly contentious labor disputes.

In yet another effort to speed up the processing of cases, the National Labor Relations Board (NLRB) general counsel on May 22, 2023, issued a memorandum instructing Regional Offices to speed up compliance with Board-ordered remedies in labor cases.

On May 1, 2023, the National Labor Relations Board (NLRB) issued a decision in  Lion Elastomers LLC II that changes the standards relating to discipline or discharge of workers who cross the line with offensive or abusive conduct while engaging in activity protected by the National Labor Relations Act (NLRA).

On April 20, 2023, the National Labor Relations Board (NLRB) imposed a host of expanded remedies against an employer that allegedly committed a number of repeated labor law violations in the context of collective bargaining. The decision signals the Board’s willingness to impose harsh remedies against employers more frequently, in the full spectrum of unfair labor practice litigation. Employers everywhere now face the prospect of defending against requests for harsh remedies when litigating a wide range of unfair labor practice charges.

On April 7, 2023, the National Labor Relations Board (NLRB) released its filing data through the first half of its fiscal year (FY) 2023 (October 1–March 31). Through the first six months of the fiscal year, filing activity continued to build on record increases that developed in FY 2022.

On March 22, 2023, National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo issued a memorandum clarifying the Board’s February 2023 decision that nondisparagement and confidentiality provisions in severance agreements are unlawful. In the memorandum, the GC states that she interprets the decision to apply retroactively to agreements already signed and that claims would not be time-barred as long as an employer maintains or enforces such terms.

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Winter 2023 issue of the Practical NLRB Advisor. This issue provides an overview of a host of controversial decisions and sharply divided opinions issued by the National Labor Relations Board (NLRB) resulting from the mid-December 2022 departure of Republican Board member John F. Ring.

In a decision instructive to employers facing sudden, emergency conditions requiring immediate response, a divided National Labor Relations Board (NLRB) in Metro Man IV, LLC d/b/a Fountain Bleu Health and Rehabilitation Center, Inc., 372 NLRB No. 37 (December 28, 2022), expanded an employer’s obligation to bargain with a union in the aftermath of exigent circumstances.

On January 10, 2023, justices for the Supreme Court of the United States questioned attorneys for a ready-mix concrete company and the union representing its truck drivers over whether claims to recover the value of the company’s property destroyed as a result of a strike are preempted by the National Labor Relations Act (NLRA). The case, Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, could provide clarity for employers on how employers can recover the value of property that is destroyed during increasingly contentious labor disputes.

In another ruling promoting a pro-labor agenda under the Biden administration, the National Labor Relations Board (NLRB) reverted to its pre-2019 precedent on the balance between the rights of property owners and the rights of employees under Section 7 of the National Labor Relations Act (NLRA).

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Summer 2022 issue of the Practical NLRB Advisor. In this issue, the Advisor takes a small departure from our usual practice of providing readers a snapshot of, and insights into, the current state of U.S. labor law. Instead, this issue aims to engage the National Labor Relations Board (NLRB) on some of the latest issues on the labor landscape.

In a decision impacting employers that face a petition for election that seeks to represent part of the workforce, a divided National Labor Relations Board (NLRB) returned to its former Specialty Healthcare standard to apply to bargaining-unit determination cases in American Steel Construction, Inc. (372 NLRB No. 23).

Fulfilling a top priority for National Labor Relations Board (NLRB) General Counsel Jennifer A. Abruzzo’s activist agenda, on December 13, 2022, the Board issued a decision that expands, arguably beyond statutory limits, the remedies recoverable by a successful charging party in unfair labor practice cases. The NLRB ruled that its make-whole remedy includes compensating employees “for all direct or foreseeable pecuniary harms suffered” as a consequence of labor violations.