National Labor Relations Board

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Special thanks to our summer associate Brianna Miller for her contributions to this post.

In Trinity Services Group, Inc. v. NLRB, No. 20-1014 (June 1, 2021), the US Court of Appeals for the DC Circuit recently rejected the National Labor Relations Board’s (NLRB) attempt to prohibit employers from expressing opinions the NLRB considers baseless. In reversing the NLRB, the Court held that the National Labor Relations Act (the “Act”) only prohibits employer speech containing a threat of reprisal or the promise of benefits, and that expressions which are merely “views, arguments or opinions” are not unlawful.

No threat of reprisal or promise of benefits means the statement–even if not based in fact–is not illegal

The case arose when an employee discovered a mix-up regarding the amount of her accrued paid leave. When she raised the issue with her supervisor, he pinned the blame on the union. The NLRB and the Court both found there was no objective basis for blaming the union rather than the employer for the mix-up.

The Court examined the provisions in Section 8(a)(1) of the NLRA, which proscribes certain speech. Section 8(a)(1) makes it unlawful for an employer to “interfere with, restrain or coerce employees” in the rights guaranteed by the Act. The Court also considered the provisions in Section 8(c) which guarantees parties freedom of speech, specifically that “[t]he expression of any views, argument, or opinion…shall not constitute an unfair labor practice.” The Court sought to reconcile the two provisions, and holding that only speech containing a threat of reprisal or promise of benefits is prohibited by the NLRA, while Section 8(c) protects “any” view, argument or opinion. The Court held the statement the NLRB found illegal contained neither a threat of reprisal or the promise of benefit and thus was not illegal. Undeterred by the plain meaning of the word “any,” the NLRB requested the Court to create an exception under Section 8(c) for statements which are “patently false.” The Court rejected that request as contrary to the plain language of the section.Continue Reading NLRB’S Attempt at Fact Checking Rejected

Ordinarily, courts defer to the National Labor Relations Board’s (NLRB) factual findings and its remedial orders given the Board’s broad discretion when fashioning a remedy. However, in the D.C. Circuit’s recent decision in RAV Truck & Trailer Repairs Inc. v. NLRB, 997 F.3d 314 (D.C. Cir. 2021), the Court refused to do so.

Sometimes being too persuasive can have a downside, as Peter Robb, former General Counsel of the NLRB can attest. Robb had convinced the NLRB to find an owner had illegally closed his business and had further persuaded the NLRB to order it reopened. Contrary to common practice, the Court refused to rubber stamp the NLRB’s factual findings or to defer to the remedy, stating that the NLRB’s order “does not purport to explain how restoration is even factually possible.” Instead, the Court gave the NLRB a second chance at finding the necessary evidence in the now closed record.Continue Reading DC Circuit Court Reins in NLRB: No “Rubber Stamp” of NLRB’s Findings and Remedy

A second court of appeals has refused to adopt a National Labor Relations Board (NLRB) decision declaring an employee’s speech violated the National Labor Relations Act.  See Tecnocap, LLC v. NLRB, 2021 U.S. App. LEXIS 18080 (4th Cir., June 17, 2021). Similarly, in a decision issued earlier this month, the D.C. Circuit vacated an NLRB decision, finding instead it was not unlawful for an employer to make a false statement. See Trinity Servs. Grp. v. NLRB, 2021 U.S. App. LEXIS 16314 (D.C. Cir., June 1, 2021) (which we blogged about here). In Tecnocap, the Fourth Circuit deemed the NLRB’s decision out of bounds because in its view the employer’s speech “communicated accurate and lawful information,” and did not constitute unlawful “direct dealing” with its employees.
Continue Reading NLRB Loses Second Recent Speech Decision

President Biden did not waste any time after taking office on January 20, 2021. Shortly after the Presidential Oath of Office was administered, Biden signed 17 executive actions, which either impact the workplace or provide insight into what may be forthcoming under the new administration for employers.

A Flurry of Executive Orders on Day One

Biden issued a memorandum to agencies to freeze all last-minute regulations put in motion by the prior administration as President Trump was leaving office. Notably, these regulatory “freeze memos” are not uncommon for incoming administrations to issue. This pause on the prior administration’s last-minute regulations will give the Biden administration the opportunity to evaluate the so-called “midnight regulations” and determine if they will become final, be amended, or rescinded altogether.

He also issued an Executive Order reinforcing that Title VII prohibits the federal government from discriminating on the basis of sexual orientation or gender identity. The Order references the recent Supreme Court case of Bostock v. Clayton County (blogged about here). Specifically, the Order states “[i]t is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” The Order notes that laws that prohibit sex discrimination (specifically referencing Title IX, the Fair Housing Act, and section 412 of the Immigration and Nationality Act) also prohibit discrimination on the basis of gender identity or sexual orientation.Continue Reading Biden and the Workplace: Early Days, Major Changes

Parties before the National Labor Relations Board (“NLRB” or the “Board”) often wonder whether it is worthwhile to appeal adverse rulings or respond when favorable rulings are received. Two recent appellate court decisions demonstrate the value of sticking with an argument from start to finish.

A Winning Formula

First, in Davidson Hotel Company v. NLRB (D.C. Cir. 2020), the D.C. Circuit recently took the highly unusual step of rejecting an NLRB determination as to the appropriate unit for bargaining at a small, full-service hotel in Chicago. For context, the NLRB had determined that the Davidson Hotel’s employees should be segregated into three separate bargaining units: a unit of front desk employees, a unit of housekeeping employees, and a unit of food and beverage employees. The union petitioned the Board to certify a single unit of housekeeping employees and food and beverage employees.

The Board’s Regional Director decided that a unit consisting of the housekeeping and the food and beverage employees was not an appropriate unit because it did not include the front desk employees, and he dismissed the union’s petition for an election. The Regional Director reached his decision by applying the NLRB’s “community of interest” test, under which the NLRB examines: (1) whether employees in the proposed unit have sufficient commonality in working conditions and job duties (among other factors) such that bargaining as a collective group is possible; and (2) whether employees in the unit have such distinctive interests from those who are excluded-here, the front desk employees-such that they should bargain separately. In his order dismissing the union’s initial petition for a single bargaining unit of housekeeping and food and beverage employees, the Regional Director decided that the unit did not have distinctive interests from the front desk workers, but he hinted that two separate units (one for housekeeping and another for food and beverage) might be appropriate.

Following his cue, the union promptly filed two petitions seeking one election in the housekeeping unit and a second election in the food and beverage service unit. Again, the union did not seek to represent the front desk employees. This time, the Regional Director found that the community of interest test was satisfied and he certified the two units. When an election was held, the union prevailed in both units.Continue Reading A Tale of Two Appeals: Recent Appellate NLRB Decisions Show the Value of Sticking with an Argument

The 2020 presidential race is well underway in the U.S. Labor policy has been and will continue to be a key talking point for Democratic candidates and President Donald Trump moving into the general election.

In part one of this two-part article, we examine the key labor policy proposals advanced by the leading Democratic contenders…

In a significant decision for the service provider community, this month the National Labor Relations Board dismissed a claim that an employer was required to provide its employees’ union the service contracts it had with its customer. G4S Security Solutions USA, Inc. 369 NLRB No. 7 (2020). The panel decision was unanimous. Notably, however, the decision left open the possibility that a union could require the production of a service agreement if it could demonstrate the agreement was relevant to bargaining.
Continue Reading Withholding Service Contracts Not Unlawful

election box

In August, the National Labor Relations Board issued a notice of proposed rulemaking to address three rather limited situations involving employee representation issues. These proposed rules follow 70-plus years of experimentation with a hodgepodge of ad hoc one-off decisions, dramatic changes and frequent reversals in the process of enabling employees to exercise their rights under…

This article was originally published on Law360.com.

Three recent decisions arising under the National Labor Relations Act highlight that ambiguity and inattentiveness are the twin banes of labor and employment attorneys. In all three cases, the dispute arose because two personnel policies or approaches overlapped, opening the way for conflicting claims. As these cases demonstrate,…

The White House announced on Friday, September 15, 2017, that President Donald Trump has nominated Peter B. Robb to serve as the next General Counsel for the National Labor Relations Board.  Robb is a management-side labor and employment attorney, who currently practices in Vermont.  Robb previously worked as a field attorney for the NLRB, a supervisory attorney for the Federal Labor Relations Authority, and then as the Chief Counsel to former NLRB member Robert Hunter (a Republican), who was appointed to the Board in 1981 by President Reagan.  In 1985, Robb began private practice representing company management in labor and employment law.  As the General Counsel, Robb would decide which issues to put before the NLRB for resolution.  A rollback of a number of union-friendly decisions is expected.
Continue Reading Trump Announces Nomination For NLRB General Counsel – What It Means For Employers