We have reported extensively over the last few years regarding the many pro-labor decisions issued by the National Labor Relations Board (“NLRB”), which largely align with General Counsel (“GC”) Jennifer Abruzzo’s expansive prosecutorial agenda (discussed here and here).  However, employers have not sat idly by in response to such rulings.  Rather, employers have availed themselves of their right to challenge these decisions in federal court.  Employers may bring challenges in the circuits where they are headquartered or do business, where the alleged labor law violation occurre ..read more

On May 2, 2024, the U.S. Court of Appeals for the Fifth Circuit, in Space Exploration Technologies Corp., v. NLRB, No. 24-40315 (5th Cir. 2024), granted SpaceX’s Emergency Motion for Injunction Pending Appeal, essentially halting National Labor Relations Board (“NLRB”) proceedings pending the company’s appeal of a lower court’s “effective denial” of its request for preliminary injunction.  Background As we previously reported, SpaceX commenced suit in January 2024 in the District Court for the Southern District of Texas in response to NLRB Regional Office 31’s administ ..read more

While extensive high-profile strike activity was heavily reported throughout 2023, it was – striking– to analyze the hard data regarding 2023 strike activity in Bloomberg’s annual report that was just released.  The report details recent work stoppages, explores how 2023 strike activity statistics fit into historical patterns and trends, and looks at possible future strike activity.  A close review of recent strike activity could help portend what we can continue to expect in 2024 – and beyond.    The “First Contract” Walkout Trend Continues The report provides statistical ..read more

On April 8, 2024, National Labor Relations Board (“NLRB”) General Counsel (“GC”) Jennifer Abruzzo released a Memorandum providing guidance to Regional Directors, Officers-in-Charge, and Resident Officers concerning the GC’s continued efforts to secure full remedies for all victims of unlawful conduct—pushing Regions to turn their focus towards employees harmed by violations under Section 8(a)(1) of the National Labor Relations Act (“NLRA”). The GC stated that an employee who has experienced unlawful employer discipline or the effects of an unlawful rule or contract term cannot be made whole th ..read more

On April 8, 2024, National Labor Relations Board (“NLRB”) General Counsel (“GC”) Jennifer Abruzzo released a Memorandum providing guidance to Regional Directors, Officers-in-Charge, and Resident Officers concerning the GC’s continued efforts to secure full remedies for all victims of unlawful conduct—pushing Regions to turn their focus towards employees harmed by violations under Section 8(a)(1) of the National Labor Relations Act (“NLRA”). The GC stated that an employee who has experienced unlawful employer discipline or the effects of an unlawful rule or contract term cannot be made whole th ..read more

On April 8, 2024, the U.S. Court of Appeals for the Eighth Circuit, in United Food & Com. Workers’ Union, Loc. No. 293 v. Noah’s Ark Processors, LLC, No. 23-1895 (8th Cir. 2024), upheld the National Labor Relations Board’s (“NLRB”) decision that a meat processor (“Noah’s Ark”) illegally bargained in bad faith with a local chapter of the United Food & Commercial Workers’ Union (“Union”), and that the processor must, among other remedies, reimburse the Union for negotiating expenses, representing an extreme example of the types of broad remedies that can be ordered by the NLRB for bad-fa ..read more

On March 29, 2024, the Department of Labor Occupational Safety and Health Administration (“OSHA”) released a final rule amending the Occupational Safety and Health Act of 1970 (“OSH Act”), clarifying who can serve as an employee representative to accompany the OSHA Compliance Safety and Health Officer (“CSHO”) during physical workplace inspections.  The final rule broadens employees’ rights to allow outside representatives – including labor union representatives – to join them during safety inspections.  The final rule is set to take effect May 31, 2024. Background The OSH Act requir ..read more

Declaring the NLRB’s rationale to be “nonsense,” on March 26, 2024, a unanimous three-judge panel for the United States Court of Appeals for the District of Columbia in Stern Produce Company Inc v. NLRB, refused to enforce the agency’s finding of unfair labor practices.   The Court held that the petitioner-produce company did not create the impression of surveillance of organizing activity and did not retaliate against an employee for participating in unionization efforts.  The D.C. Circuit’s decision was illuminating in its rejection of the Board’s and the NLRB General Counsel’s rat ..read more

On March 8, just three days before the National Labor Relations Board’s (the “Board”) new joint-employer standard was set to take effect, Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas struck down the new standard, delaying its implementation further.  In his opinion, Judge Barker held that the Board’s joint-employer test is unlawfully broad because an entity could be deemed a joint employer simply by having the right to exercise indirect control over one essential term and condition of employment, even if the entity does not actually exercise that c ..read more

A growing trend of union organizing among undergraduate student workers reached a crescendo last week when a unit of 20,000 student assistants at California State University voted in favor of unionization. California State University Employees Union Election Student assistants across California State University’s 23 campuses have unequivocally voted to form the largest undergraduate student union in history. In April 2023, California State University Employees Union, SEIU Local 2579 filed a petition with the California Public Employment Relations Board (“CPERB”) seeking to represent a unit of ..read more