On Monday, August 29, 2022, the National Labor Relations Board issued its first precedent-shifting decision under the Biden administration, which will have the effect of permitting more apparel with union insignia in the workplace.

The Law on the Display of Union Insignia. An employer’s interference with an employee’s display of union insignia on their apparel is presumed to be unlawful, unless the employer can demonstrate “special circumstances” to justify the interference. Special circumstances are found when the display jeopardizes employee safety, equipment or product safety, or unreasonably interferes with a public image which the employer has established as part of its business plan. The Board had previously held in its 2019 Wal-Mart Stores decision that the “special circumstances” test applied only when an employer completely prohibited union insignia, and that certain size-and-appearance restrictions on union insignia could be lawful based on less compelling employer interests. However, the Board has now reversed itself in Tesla, Inc. to assert that the special circumstances test will apply to any restriction, and not just total bans.

Continue Reading Employers – Be Prepared for More Union Apparel in the Workplace

A day after President Biden announced his COVID-19 Action Plan (which we discussed here), leaders from the Occupational Safety and Health Administration held a short briefing to discuss its forthcoming Emergency Temporary Standard that will require employers with 100+ employees to (1) mandate vaccinations or weekly testing, and (2) provide paid vaccination leave. The President’s announcement regarding these requirements was sorely lacking in details, but the OSHA briefing provided a few (not many) useful tidbits for nervously wondering employers.  (Be aware, however, that the ETS is not yet written, and it is possible that some of what they said today might not end up being accurate….)
Continue Reading A Few More Answers from OSHA on the Impending Vaccination ETS…

A National Labor Relations Board (“NLRB” or “Board’) decision that was once thought to be a significant win for employer property rights may ultimately result in increased property access for off-duty contractor employees, following a recent decision by the U.S. Court of Appeals for the D.C. Circuit.

Continue Reading D.C. Circuit Opens Door to Biden Board to Expand Property Access for Off-Duty Contractor Employees

A National Labor Relations Board (NLRB) hearing officer recently recommended that the union election at an Alabama Amazon warehouse be run a second time. The hearing officer, an employee of a NLRB Regional Office, sided with the Retail, Wholesale and Department Store Union (RWDSU) that Amazon’s actions interfered with a fair election. Specifically, the hearing officer found that Amazon’s installation of an unmarked mailbox as a ballot drop-site that was within the view of company surveillance cameras, hiring of private police, threatening of employees, and changing county traffic lights (come on, how many companies have the pull to get county traffic lights changed?) to impede RWDSU access to voters amounted to objectionable conduct.

Continue Reading NLRB Hearing Officer Recommends Second Union Election at Amazon – But Will It Happen?

On August 12, 2021, the recently confirmed General Counsel (GC) of the National Labor Relations Board, Jennifer Abruzzo, issued her first official memo. Per an NLRB press release, GC Memo 21-04 “lays out a clear agenda…on some priorities of the Office of the General Counsel.” The memo directs NLRB field offices to submit cases addressing issues identified in the memo to the Regional Advice Branch of the Office of the General Counsel. Typically, such submissions are the first step on the path to overturning existing case law that a sitting GC seeks to change.
Continue Reading New NLRB General Counsel Signals Major Changes Ahead

One of the many services we provide to our clients is training on how to respond effectively to union organizing activity. In short, we provide the do’s and don’ts of how to respond lawfully to a union’s efforts to organize an employer’s workforce. During these trainings, we often stress the fine line dividing lawful and unlawful statements and conduct.

Continue Reading Here’s What Not to Do When Faced With Union Organizing Activity

In Shakespeare’s play, Julius Caesar cried out “Et Tu Brute?” – translated “Even you Brutus?” – as he lay dying from the assassin’s sword that had been plunged into his chest by his friend and confidant, Marcus Brutus.  These words came to mind as I read an article about a sordid tale of rampant sexual misconduct by SEIU officials. Even them???

Continue Reading #MeToo (Et Tu SEIU?)

NLRB Delivers A “Holiday Gift” To Employers: New Union Election Timelines

On December 13, 2019, the National Labor Relations Board (NLRB) issued a final rule revising the Obama-era union election procedures (known as “R-Case” rules). The revision to the procedures will become effective 120 days from its publication in the Federal Register next week.

Continue Reading NLRB Delivers A “Holiday Gift” To Employers: New Union Election Timelines

In May of 2013, some Walmart employees boarded buses bound for Bentonville, Arkansas to attend the Company’s annual shareholders meeting. The buses formed a caravan, picking up employees at Walmart locations on the way. The employees handed strike letters to their managers before departing.

The caravan was dubbed the “Ride for Respect.” It was organized by OUR Walmart, a group formed with the assistance of the United Food and Commercial Worker Union (UFCW). Once in Bentonville, the employees held demonstrations, attended the shareholder meeting, and engaged in other activities to publicize their grievances.
Continue Reading Ride for Respect: Intermittent “Hit and Run” Strike or Presumptively Protected Work Stoppage?

In a rare unanimous decision, on a closely-watched issue, from all four sitting members of an ideologically-divided National Labor Relations Board, the Board ruled that an employer’s arbitration agreement unlawfully restricted employee access to the Board and its processes.
Continue Reading Arbitration Agreement May Not Restrict Access to NLRB Processes