NLRB Decisions

November 18, 2024

NLRB Final Rule Reinstates Several Union Organizing Tools That May Affect New Jersey Workers

Under federal and New Jersey employment laws, workers have the right to organize themselves for collective bargaining and other activities related to advocacy for their interests in the workplace. The National Labor Relations Board (NLRB) oversees multiple aspects of federal labor law. This includes investigating alleged violations of workers’ rights under the National Labor Relations Act (NLRA), overseeing union elections, and bringing administrative cases against employers or unions. Some of the NLRA’s language is rather vague, leaving interpretation and implementation of the law to the NLRB. The administrative rulemaking process allows the NLRB to create rules and regulations based on the NLRA. These rules tend to shift as different administrations move in and out of the White House. This summer, the NLRB issued a final rule that makes several changes to the regulations. Some — but not necessarily all — of the changes may be helpful to New Jersey workers.

The NLRA addresses a variety of issues involved in labor relations.
– Section 7 of the statute defines employees’ rights, although it does so in very general terms. These include the right to organize, engage in collective bargaining, and engage in other activities related to “mutual aid or protection.” Employees also have the right to refrain from any of these activities.
– Section 8 defines “unfair labor practices” by employers and unions, such as restraining or coercing employees with regard to their rights under § 7.
– Section 9 deals with how to designate a union as employees’ official representative for collective bargaining, including procedures for union elections.
– Section 10 outlines the NLRB’s power to investigate and adjudicate complaints.

The NLRB’s new rule rescinds a 2020 rule and reinstates several practices that tend to benefit unions. One such practice is known as a “blocking charge.” This allows regional NLRB directors to postpone a pending election if they receive a charge alleging unfair labor practices that would restrict “employee free choice” in that election. The NLRB can investigate the charge before proceeding with the election. The 2020 rule required regional directors to allow election to go on despite the charge.
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July 19, 2024

U.S. Supreme Court Ruling Restricts NLRB’s Authority in Labor Disputes

by Resnick Law Group, P.C.

The National Labor Relations Act (NLRA) is an important tool for protecting workers from employers’ interference with efforts to organize and bargain collectively. Workers and unions may file complaints with the National Labor Relations Board (NLRB), which has the authority to investigate alleged unlawful acts. If the NLRB believes an employer has acted unlawfully, it can take legal action. This includes seeking injunctions to prevent further NLRA violations while the claim for unfair labor practices proceeds. This can include reinstating employees after termination. The U.S. Supreme Court recently ruled on a dispute regarding what the NLRB needs to prove in court to obtain a preliminary injunction. The court’s ruling in Starbucks Corp. v. McKinney sets limits on the NLRB’s authority in this regard. It could affect New Jersey employment law claims dealing with labor rights.

Section 10(j) of the NLRA gives the NLRB the authority to petition a court for injunctive relief when it believes someone has engaged in unfair labor practices. Courts are generally hesitant to grant injunctions, which restrain a person from certain activities on penalty of contempt. This is particularly true when the request for an injunction comes at the beginning of a legal proceeding before each side of the dispute has had an opportunity to present their cases.

The U.S. Supreme Court outlined a four-part test for preliminary injunctions in 2008 in Winter v. Natural Resources Defense Council. It states that a party seeking a preliminary injunction must show the following:
1. They are likely to succeed based on the merits of their claims.
2. They are likely to suffer “irreparable harm” without an injunction.
3. The “balance of equities” is more favorable to them.
4. An injunction would be in the public interest.
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May 20, 2024

Federal Judge Vacates NLRB’s Joint Employer Rule

by Resnick Law Group, P.C.

“Joint employer” rules help workers and their advocates in situations where more than one person or entity exercises control or authority over a worker. New Jersey employment laws establish obligations that employers owe to their employees. To assert a claim for damages under these laws, an employee must identify which employer or employers have those legal obligations. This issue can arise in disputes over labor rights under the National Labor Relations Act (NLRA), such as when an employee receives a paycheck from one company but works at a site operated by another company under a contract between the two companies. Joint employer rules allow workers to hold employers jointly and severally liable for unlawful practices. The National Labor Relations Board (NLRB) issued a final rule in late 2023 establishing a new standard for joint employment under the NLRA. In March 2024, however, a federal judge vacated the rule.

The NLRA protects employees’ rights to organize themselves, bargain collectively with their employers, and engage in other activities related to advocating for their rights and protecting their interests. Employers may not interfere with or retaliate against employees who are engaging in protected activities. Like many employment laws, the statute only briefly defines “employer,” leaving it to the NLRB to go into detail.

The NLRB’s joint employer rule looks at the amount of control an alleged employer has over a worker’s “essential terms and conditions of employment” (ETCEs). This includes issues like wages or salary, job assignments, supervision, workplace safety, and employment policies. In 2020, the NLRB adopted a rule that would only deem an entity a joint employer if it had “substantial direct and immediate control over one or more” ETCEs. This presents a fairly high bar for employees, which the NLRB sought to address with a revised rule.
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April 9, 2024

NLRB Rules That Social Justice Messages Are Protected Concerted Activity

by Resnick Law Group, P.C.

Federal and New Jersey employment laws protect workers’ rights to engage in a wide range of “concerted activities” intended to improve conditions for workers, both in the workplace and society at large. These protections extend beyond activities that are directly related to union organizing and collective bargaining. In February 2024, the National Labor Relations Board (NLRB) ruled that federal law protects the display of certain social justice messages in the workplace. A customer-facing employee at a big-box retail store wrote “BLM,” the initials for “Black Lives Matter,” on his employer-issued apron. The employer considered this a violation of its dress code policy. The NLRB held that the employer violated the law by instructing the employee to remove the marking on his apron.

Section 7 of the National Labor Relations Act (NLRA) states that employees have the right to engage in activities related to self-organization and collective bargaining. It also states that they have the right “to engage in other concerted activities for the purpose of…mutual aid or protection.” The meaning of “concerted activities” is not limited to activities that involve two or more employees. An individual employee may engage in protected concerted activities, according to NLRB precedents, in several situations, including:
– They are acting with other employees’ approval;
– They are bringing a group complaint to management’s attention; or
– Their activity is a “logical outgrowth” of past concerted activity.

Employers commit an unfair labor practice under § 8 of the NLRA when they “interfere with, restrain, or coerce employees” who are trying to exercise their § 7 rights. They also violate the law if they fire an employee or take other adverse actions against them for engaging in protected activities.
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January 19, 2024

NLRB Issues Final Rule on Joint Employer Status

by Resnick Law Group, P.C.

To assert a claim for violations of New Jersey employment laws, a person must be able to demonstrate that an employer-employee relationship exists. State and federal employment statutes tend to provide vague definitions of terms like “employee” and “employer.” Courts and regulatory agencies provide more detailed definitions. For example, the New Jersey Supreme Court has adopted a test to distinguish between employees with the full protection of state and federal employment law and independent contractors with contractual rights and remedies. In other situations, multiple entities may exercise control over an employee’s work, making it difficult to determine who is their “employer” under the law. The National Labor Relations Board (NLRB) recently issued a new rule for determining when an employee has “joint employers.” The rule can help employees hold employers liable for violations of federal labor law.

The National Labor Relations Act (NLRA) protects employees’ rights to “self-organization” and “other concerted activities” intended to protect employees or promote their welfare. Employers may not threaten or interfere with employees who are engaging in protected activities. The NLRB investigates claims of unlawful activity by employers.

“Joint employer” status can be an issue in situations where more than one company or other entity has some degree of control over an employee’s work. An employee might draw a paycheck from a staffing agency, for example, but take orders from a business that contracts with the agency. Someone who works for a business that operates a franchise might be subject to requirements from their direct employer, known as the franchisee, and the franchisor. The joint employer rule seeks to determine how many entities are acting as an “employer.”
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October 23, 2023

NLRB Affirms Ruling Against New Jersey Employer for Interfering with Union Activities

by Resnick Law Group, P.C.

The National Labor Relations Act (NLRA) protects workers’ rights to organize themselves and engage in collective bargaining. Employers may not interfere with employee activities related to self-organization. Once employees have chosen to join a union or form one of their own, employers must negotiate in good faith with union representatives. Both federal and New Jersey employment laws state that employers may not retaliate against employees who participate in union organizing or various other legally-protected activities. The National Labor Relations Board (NLRB) investigates complaints about alleged violations of the NLRA. It also adjudicates disputes arising from many complaints. A recent NLRB ruling found that a New Jersey employer violated two provisions of the NLRA related to interference with organizing and refusal to negotiate.

Section 8 of the NLRA identifies “unfair labor practices” by employers and unions. Under § 8(a)(1), an employer violates the NLRA if it “interfere[s] with, restrain[s], or coerce[s] employees” with regard to their rights to engage in organizing. An employer violates § 8(a)(5) if it “refuse[s] to bargain collectively with the [employees’] representatives.” Employees may file complaints with the NLRB alleging violations of these and other provisions. The NLRB’s General Counsel (GC) may bring administrative cases against employers. These cases may go before an administrative law judge (ALJ), followed by review by a panel of NLRB members.

The case before the NLRB originated with efforts to negotiate a new collective bargaining agreement (CBA) in 2018. The union represented about 165 employees at a facility in Annandale, New Jersey. It had filed unfair labor practice charges against the employer in 2016 and 2017 over disputes related to policies for personal time off and Paid Parental Time Off (PPTO). The employer reportedly revoked supervisors’ discretion over requests for personal time off, which the union claimed was in retaliation for an earlier complaint. A new policy initiated in 2017 gave eight weeks PPTO to non-union members, and none to union members. The union’s charges resulted in either dismissals or settlements.
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September 15, 2023

NLRB Ruling Changes Standard for Many New Jersey Employers’ Workplace Policies

by Resnick Law Group, P.C.

Employers’ workplace policies must comply with New Jersey employment laws. This includes federal laws passed by Congress and state laws passed by the New Jersey Legislature. At the federal level, the National Labor Relations Act (NLRA) protects workers’ rights to engage in organizing activities. The National Labor Relations Board (NLRB) adjudicates complaints from employees that allege violations of their rights. When an employment policy interferes with workers’ ability to organize themselves, the employer might be in violation of the NLRA. An August 2023 decision from the NLRB revises the standards that it uses to assess whether a particular policy or rule infringes on employees’ rights. It reverses a standard put in place in 2017 and reinstates an earlier standard with some modifications.

Workers have the right under § 7 of the NLRA to organize themselves in order to form or join unions. By organizing in this way, workers gain greater leverage in negotiations with their employers through a process known as collective bargaining. Employers violate the NLRA when they interfere with efforts to organize or engage in other activities intended to promote workers’ interests. Violations of these rights are possible even without obvious intent on the part of an employer. Policies or rules that appear neutral can still be unlawful in certain situations.

In 2017, the NLRB issued a ruling that established a standard for evaluating employment policies that remained in place until the recent decision. The 2017 standard gave greater leeway to employers than the standard it replaced. It identified three categories of employment policies, based on the level of scrutiny that it would apply:
– Category 1: Rules that are lawful, either because they generally do not interfere with workers’ rights or they serve a purpose whose important outweighs the possible impact on workers.
– Category 2: Rules that the NLRB assesses on a case-by-case basis to balance the extent of any NLRA violations against possible business justifications.
– Category 3: Rules that unambiguously infringe on workers’ rights.
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August 4, 2023

New Jersey Plant Closure Violated Employees’ Labor Rights, NLRB Rules

by Resnick Law Group, P.C.

For far too many workers in New Jersey and throughout the country, employment can be uncertain or even precarious. Decisions made by employers far above an employee’s level can lead to them being out of a job through no fault of their own. New Jersey employment laws protect against wrongful termination, such as a decision to fire someone because of a protected category like race or religion, or termination in retaliation for legally protected activity. State and federal laws do not prohibit employers from laying workers off for non-discriminatory or retaliatory reasons, but they might set some limits. In the case of certain mass layoffs, for example, employers must provide advance notice and severance pay. Many collective bargaining agreements (CBAs) also contain provisions requiring negotiation prior to plant closures. Federal labor law requires employers to negotiate with authorized unions in accordance with their CBAs. The National Labor Relations Board (NLRB), which enforces the main federal labor statute, recently ruled that an employer violated the law by closing a facility and laying employees off without notifying the union.

The National Labor Relations Act (NLRA) prohibits employers from interfering with workers’ rights, as defined by § 7 of the statute, to engage in various protected activities. This includes organizing themselves for the purpose of collective bargaining, as well as other activities related to promoting employees’ well-being. The statute identifies a range of “unfair labor practices.” Many involve actions taken by employers, while others involve refusals to act.

Once a union has met the NLRA’s requirements for becoming the authorized representative of a group of employees, the employer must negotiate with that union in good faith. Section 8(a)(5) makes it an unfair labor practice for an employer to refuse to participate in collective bargaining with its employees’ representative. Under § 9(a) of the NLRA, the union is the employees’ “exclusive representative,” in most situations, with regard to negotiations with management for “rates of pay, wages, hours of employment, or other conditions of employment.” This often includes negotiation over decisions that could lead to employee layoffs, such as the closure of a plant or other facility. The union has the right to negotiate regarding the terms and effects of these kinds of decisions.
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June 9, 2023

NLRB Limits Employers’ Ability to Discipline New Jersey Workers Engaged in Protected Activities

by Resnick Law Group, P.C.

The National Labor Relations Act (NLRA) protects a wide range of workplace rights. New Jersey employment laws also address labor organizing, but the NLRA offers broad protections nationwide. Decisions from federal courts and the National Labor Relations Board (NLRB) have clarified how workers may exercise their rights to organize themselves and engage in collective bargaining with their employers, as well as what employers may and may not do. In May 2023, the NLRB issued a ruling that made rather sweeping changes to the manner in which employers may discipline employees who are engaged in protected activities. The decision overturns a 2020 NLRB decision which also made sweeping changes. In that sense, the May 2023 decision reinstates rules and standards that had been in place for decades. The end result is greater protection for workers engaged in labor organizing.

Section 7 of the NLRA provides a brief but expansive list of rights enjoyed by workers in New Jersey and throughout the country. The list of prohibited acts by employers found in § 8(a) of the statute is similarly short on details. Section 8(a)(1), for example, merely states that employers may not “interfere with, restrain, or coerce employees” with regard to the rights protected by § 7. Decades of decisions from the NLRB have provided practical details about how the NLRA protects workers.

The May 1, 2023 decision involves an employee who was discharged by their employer for alleged “abusive conduct.” The employee claimed that the discharge violated the NLRA since they were engaged in activities protected by § 7 at the time. The NLRB ruled in favor of the employee in May 2020. It held at the time that the employer violated §§ 8(a)(1) and (3). The employer appealed to a Circuit Court of Appeals. While the case was pending in that court, the NLRB issued a ruling in an unrelated case in July 2020 that made significant changes.
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May 5, 2023

NLRB Bars Employers from Including Non-Disparagement Clauses in Severance Agreements

by Resnick Law Group, P.C.

Workers have the right to organize themselves in order to bargain collectively with their employers and advocate for better working conditions. Federal and New Jersey employment laws protect these rights and prohibit employers from interfering with or retaliating against employees who are engaged in lawful activities. The National Labor Relations Board (NLRB) adjudicates disputes over alleged violations of federal labor laws. In February 2023, it issued a ruling that invalidates a non-disparagement clause that an employer included in severance agreements for a group of employees it had just laid off. The NLRB found that the employer could not require workers to waive such a large number of legal rights. The following month, the NLRB’s General Counsel (GC) issued a memorandum providing guidance to NLRB directors and officers on how to implement this decision.

Section 7 of the National Labor Relations Act (NLRA) identifies a broad range of rights enjoyed by workers. This includes “the right to self-organization” and to join or form a labor union for the purpose of collective bargaining. The section also states that workers have the right to engage in “other concerted activities for the purpose of…mutual aid or protection.” The NLRB and the courts have interpreted this as providing rather broad protection of workers’ right to communicate among themselves and with others about various features of employment, such as working conditions and wages.

The case recently before the NLRB involved a hospital and a union representing various service employees. The hospital furloughed numerous employees at the beginning of the COVID-19 pandemic in 2020. It made the temporary furlough permanent for eleven union members later that year. Each of these employees received a “Severance Agreement, Waiver and Release” that offered a severance package in exchange for their signature. According to the NLRB’s ruling, the hospital did not inform the union of the furloughs or the severance agreements.
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