The National Labor Relations Board (NLRB) has been an active regulator under the Biden administration, helping shift the balance of power in labor relations to empower workers. The NLRB has utilized both enforcement actions and rulemaking capacity to help workers and unions, much to the chagrin of big business groups.
Rulemaking Efforts And Precedent Setting:
- Ruled in Cemex that employers found guilty of unfair labor practices in the run-up to an union election will be forced to recognize and bargain with the union.
- Issued the Fair Choice-Employee Voice Final Rule to restore a Regional Director’s authority to delay elections following unfair labor practices, remove a 45-day waiting period following voluntary union recognition where a minority of workers could demand an election, and establish protections for construction industry unions.
- General Counsel Jennifer Abruzzo issued a memo stating that overbroad non-compete agreements violate the National Labor Relations Act.
- Overruled SuperShuttle (2019) to return to a 2014 standard for determining independent contractor status. The Board ruled that independent contractor status will be based on a list of common-law factors rather than SuperShuttle’s use of entrepreneurial opportunity as the animating principle.
- Adopted a rule that rescinded 2019 amendments to the NLRB union election rules. The previous rule slowed elections by giving regional directors wide discretion to delay voting and install numerous waiting periods throughout the process. The new rule aimed to ensure that elections were conducted fairly and quickly by expediting post-election litigation and cutting down on waiting periods.
- Reinstated the “overwhelming community interest” standard for determining collective bargaining units. In practice, this standard prevents a common union busting tactic where employers attempt to expand a bargaining unit to include employees that will likely vote against unionization.
- Reversed the Amnesty International (2019) ruling to reinstate the right of employees to advocate on behalf of nonemployees under the National Labor Relations Act.
- Reversed the Alstate Maintenance, LLC (2019) ruling that narrowed the definition of protected concerted activity under the National Labor Relations Act. Protected concerted activities are actions taken by employees to improve their working conditions that cannot be interfered with or retaliated against by employers.
- Rescinded Trump-era joint employer definition and established a new joint employer rule. The new rule determined that an entity is a joint employer if it is involved in an employee’s “essential terms and conditions of employment.” The rule was later vacated by a Trump appointed judge, but the NLRB is exploring other options to address joint employer issues.
Enforcement actions against corporations:
- Starbucks:
- Filed a complaint alleging illegal schedules changes that cut hours at 290 unionized stores. The NLRB estimates Starbucks owes $30 million in back pay.
- Detroit: Successfully sought an injunction requiring Starbucks to reinstate a worker who was unlawfully fired for organizing a union.
- Pittsburgh: Reached a settlement with Starbucks to offer reinstatement to four fired employees following retaliation for union organizing.
- Several other cases protecting Starbucks employees from retaliation for union organizing.
- Amazon:
- Staten Island: Successfully sought an injunction against Amazon to cease and desist discharging employees for engaging in protected activities. Amazon had unlawfully fired an employee for advocating for workplace safety measures regarding COVID-19.
- Brooklyn: Successfully sought an injunction against Amazon to cease and desist anti-union activity, including interrogating employees, altering schedules and assignments of employees, and retaliating against employees who expressed support for the Amazon Labor Union.
- UPS:
- Successfully sought an injunction requiring UPS to reinstate an unlawfully fired worker and cease and desist threats to employees engaging in union activities.
- Dollar General:
- Ruled that Dollar General had illegally fired a pro-union worker, illegally surveilled employees, and threatened to close a store following a union petition. Dollar General was ordered to reinstate the worker and issue back pay and compensation for harms.
- DirecTV:
- Awarded $3.2 million in backpay, interest, and expenses to service technicians contracted by DirecTV, who were fired after voicing frustrations with their pay structure.
Corporate Pushback:
- The NLRB’s Cemex ruling was criticized by the Chamber of Commerce and Federalist Society.
- SpaceX, Trader Joe’s, Amazon, and Starbucks are challenging the constitutionality of the NLRB. Trader Joe’s and SpaceX are represented by Morgan Lewis & Brockius, a BigLaw firm stacked with revolvers including former NLRB members.
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