Labor Relations Law Blog

On October 26, 2023, the National Labor Relations Board (“NLRB”) issued its long-awaited final rule on “joint employer” status under the National Labor Relations Act (“NLRA”).  The new rule significantly expands the NLRB’s joint-employer doctrine, which will have adverse effects on many common business arrangements, including the use of temporary employees, subcontracting, and franchisee-franchisor relationships.  The new rule is effective on December 26, 2023, and applies only to cases filed after that date.  As explained herein, the new rule expands the definition of a joint employer in several key respects.

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While organized labor was dealt a major setback by the Supreme Court in Janus v. AFSCME, the landmark ruling does not impact the legality of union security clauses in the private sector.    In Janus, the Supreme Court held that the state’s extraction of union dues from non-consenting public employees violates the First Amendment.  The Court overruled Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that state and local governments could lawfully require public employees to pay “agency fees” as a condition of continued employment.  Agency fees are intended to cover costs related to contract negotiation, grievance processing, and contract administration, but are meant to exclude costs related to union lobbying and political activism.  Following Janus, public employees can no longer be compelled to contribute any dues to unions, including so-called agency fees.

On February 25th, the National Labor Relations Board unanimously vacated its December 2017 ruling in Hy-Brand Industrial Contractors, Ltd., which determined standards for establishing joint employer relationships. This action was taken after the NLRB’s Inspector General reported that Board member William Emanuel had a conflict of interest when he ruled on the case.

On February 20th, the United States Supreme Court ruled that in a collective bargaining agreement, no ambiguities should be interpreted by the absence of a provision concerning the duration of retirees’ healthcare benefits. Benefits clearly expire when the collective bargaining agreement itself expires. The Supreme Court’s decision, CNH Indus. N.V. v. Reese, was unanimous.

The National Labor Relations Board is considering modifying its case processing procedures in ways that could benefit employers, according to an internal NLRB memorandum obtained by the paid subscription service Bloomberg Law.

On January 12, President Trump selected Republican John Ring to fill the vacancy created last month by Philip Miscimarra's departure from the five-member National Labor Relations Board. If Ring is confirmed by the Senate, the NLRB will have three Republican and two Democrat members.

On Friday night, right before Chairman Philip Miscimarra’s term ended with the National Labor Relations Board, the Board capped its flurry of rulings by issuing one more decision favorable to employers: PCC Structurals, Inc., 365 NRLB No. 160 (Dec. 15, 2017). This decision overruled the NLRB’s 2011 Specialty Healthcare ruling that permitted unions to organize “micro-units” of employees for voting purposes unless the employer could prove an “overwhelming community of interest” between the petitioned-for employees and other employees. Because it was almost impossible to prove an overwhelming community of interest and because the resulting micro-units frequently were those employees most favorable to unionization, employers often faced a difficult challenge contacting a union’s grouping of employees for organizing.

The National Labor Relations Board gained a Republican majority less than three months ago, but has already disposed of many of the prior Administration’s labor law rules. Just this past week, the NLRB issued 13 decisions, including several important rulings favorable to employers. This bevy of rulings is understandable, given that NLRB Chairman Philip Miscimarra, a Republican, retired on Friday.

In ...

Last week, the U.S. Senate confirmed Peter Robb as General Counsel for the National Labor Relations Board (NLRB). Robb previously represented employers in labor law matters. As General Counsel, Robb will oversee the NLRB in its headquarters in Washington, DC and in its field offices throughout the country. The NLRB’s former General Counsel, Obama-appointee Richard Griffin, had previously served as ...

A case from New York highlights the distinct labor law challenges for employers trying to do business in both union and non-union markets. In some instances, a company may have decided to set up union and non-union entities to operate independently of each other. In other instances, a unionized employer may have created a non-union entity to try to evade the legal and contractual obligations flowing from a ...