Daily eBriefs - December 21, 2023

Torts The state, by providing compensation to in-home providers of services to disabled and elderly Californians, does not become the employer of those providers, thus incurring vicarious liability for their torts. Yalung v. State of California - filed Dec. 21, 2023, Fifth District Cite as 2023 S.O.S. 3862 Full text click here >http://sos.metnews.com/sos.cgi?1223//F084367.

Remembering Bob Battista, Former Chairman of the NLRB

December 20, 2023 With great sorrow, we acknowledge the passing of our former colleague, Robert (Bob) Battista. Chairman Battista enjoyed a long and illustrious career in labor law, and served in many roles throughout his career that reflected his commitment to public service. He was appointed by President George W. Bush to the National Labor Relations Board and served as Chairman from 2002-2007. “We are deeply saddened by the news of Bob’s death,” said Chairman Lauren McFerran. “We extend our deepest sympathies to his family. His legacy of service to the Agency will always be remembered.” Bob is survived by his wife, children, granddaughter, and mother-in-law. His obituary can be viewed here: https://www.dignitymemorial.com/obituaries/naples-fl/robert-battista-sr-11576180.

Daily eBriefs - December 19, 2023

Employment The Meyers-Milias-Brown Act preempted a public healthcare district’s claims for trespass and unlawful picketing against unions representing the district’s nurses and healthcare workers. Palomar Health v. National Nurses United (Public Employment Relations Board) - filed Dec. 18, 2023, Fourth District, Div. One Cite as 2023 S.O.S. 3794 Full text click here >http://sos.metnews.com/sos.cgi?1223//D080962

Daily eBriefs - December 7, 2023

Employment A federal appellate court has jurisdiction under 28 U.S.C. §292(a)(1) to review a communication restriction imposed on an employer who was trying to persuade employees to agree not to join any collective or class action and to encourage employees to settle their claims individually, because the restriction imposed a prior restraint and was injunctive in nature; the court lacked jurisdiction to review a trial judge’s order nullifying new employment agreements and release agreements signed in response to the employer’s communications. Dominguez v. Better Mortgage - filed Dec. 7, 2023 Cite as 2023 S.O.S. 22-55731 Full text click here >http://sos.metnews.com/sos.cgi?1223//22-55731.

Region 29-Brooklyn Wins Administrative Law Judge Decision Finding Amazon Unlawfully Retaliated Against Workers for Their Union Activities

On November 21, 2023, Administrative Law Judge Lauren Esposito issued a decision finding that Amazon.com Services LLC (Amazon) violated the National Labor Relations Act by dismissing employees early, altering employees’ work assignments, and subjecting employees to closer supervision in retaliation for the employees’ support for the Amazon Labor Union (the Union), or for engaging in protected concerted activities. The decision also found Amazon unlawfully interrogated employees, disparaged the Union by using appeals to racial prejudice and derogatory racial stereotyping, and prohibited employees from distributing Union literature and confiscating Union literature from employees. Judge Esposito ordered Amazon to cease and desist from further unlawful activity and to make the adversely affected worker whole for any loss of earnings and other benefits including any other direct or foreseeable pecuniary harms and any adverse tax consequences. Amazon must also post copies of a Notice to Employees for 60 days at its JFK8 and DYY6 facilities on Staten Island, New York, and distribute the Notice to Employees electronically. “Workers have the right to advocate collectively for a more equitable workplace — and it is unlawful for employers to prohibit or retaliate against them for doing so,” said NLRB Region 29 Director Teresa Poor. “I’m proud of the staff of Region 29 for diligently pursuing this significant case and litigating for strong, meaningful remedies.” The Judge’s Decision and Order was issued based on a Complaint and Notice of Hearing issued by Kathy Drew King, former Regional Director of Region 29 of the NLRB. Field Attorneys Emily Cabrera and Matthew Jackson of the NLRB’s Region 29 represented General Counsel Jennifer Abruzzo in proceedings before Judge Esposito.

Daily eBriefs - November 30, 2023

Employment Where employees received a monetary credit for opting out of their union- and employer-sponsored health plans, these credits were not part of the employees’ regular rate of pay, but rather were exempted as contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing health insurance under 29 U.S.C. § 207(e)(4). Sanders v. County of Ventura - filed Nov. 30, 2023 Cite as 2023 S.O.S. 22-55663 Full text click here >http://sos.metnews.com/sos.cgi?1123//22-55663

Board Extends Effective Date of Joint-Employer Rule to February 26, 2024

November 16, 2023 Today, the Board extended the effective date of its recent rule on determining the standard for joint-employer status to February 26, 2024, to facilitate resolution of legal challenges with respect to the rule. The new standard will only be applied to cases filed after the rule becomes effective. Notice of the extension will be published in the Federal Register shortly.

Richard Lussier Named Deputy Associate General Counsel in the Division of Advice

Today, National Labor Relations Board General Counsel Jennifer Abruzzo announced the appointment of Richard Lussier as Deputy Associate General Counsel in the Division of Advice. The Division of Advice provides guidance to the Agency’s Regional Offices regarding difficult and novel issues arising in the processing of unfair labor practice charges and coordinates the initiation and litigation of injunction proceedings in federal court under Section 10(j) and (l) of the National Labor Relations Act. Mr. Lussier began his career at the NLRB in 1996 as an attorney in the Division of Advice. He was promoted to supervisory attorney in the Injunction Litigation Branch in 2017. In 2020, Mr. Lussier was named Assistant General Counsel for the Agency’s Injunction Litigation Branch. A Connecticut native, Mr. Lussier graduated from the University of Connecticut in 1991, Quinnipiac University School of Law in 1995, and Georgetown University Law Center in 1997. “Richard is a tremendous attorney who has spent his career upholding the National Labor Relations Act,” said General Counsel Abruzzo. “He’ll continue to be an asset to the Agency in his new role as he continues to effectuate the Act.”

NLRB and OSHA Announce New MOU to Strengthen Health and Safety Protections for Workers

October 31, 2023 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo and Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA) at the U.S. Department of Labor Douglas L. Parker executed a Memorandum of Understanding to strengthen the agencies’ partnership to promote safe and healthy workplaces through protecting worker voice. Because many worker efforts to improve safety and health in their workplaces are protected under both the Occupational Health and Safety Act (OSH Act) and the National Labor Relations Act (NLRA), the NLRB and OSHA have historically engaged in cooperative efforts and have entered into formal Memoranda of Understandings to engage in interagency coordination since 1975. Today’s agreement expands on the historic interagency coordination by enabling the NLRB and OSHA to closely collaborate by more broadly sharing information, conducting cross-training for staff at each agency, partnering on investigative efforts within each agency’s authority, and enforcing anti-retaliation provisions. The agencies also released a resource on “Building Safe & Healthy Workplaces by Promoting Worker Voice” which provides tools and key references for employers and workers on working collaboratively to create and maintain safe workplaces, including resources on collective bargaining and compliance. “Workplace safety can be a matter of life and death for workers and so the ability to report workplace hazards without fear of retaliation is critically important,” said General Counsel Abruzzo. “Today’s MOU will bolster protections for workers to speak out about unsafe working conditions by strengthening coordination between OSHA and the NLRB on our enforcement efforts.” “Everyone should be able to exercise their legal rights in the workplace without fear of losing their job or other forms of punishment,” explained Assistant Secretary for Occupational Safety and Health Doug Parker. “This partnership with the National Labor Relations Board will expand both of our agencies’ impact and effectiveness in protecting workers who raise concerns about workplace violations or retaliation.” The MOU is part of the NLRB General Counsel’s interagency coordination initiative to take a whole of government approach to enforcement. As part of the initiative, the NLRB is working closely with worker protection and consumer protection agencies to ensure that the government is coacting and co-enforcing all related laws in the most effective and efficient way, which will ensure workers are fully protected while minimizing employers’ compliance burdens.

Board Issues Final Rule on Joint-Employer Status

October 26, 2023 Today, the Board issued its Final Rule addressing the Standard for Determining Joint-Employer Status under the National Labor Relations Act. Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and conditions of employment, which are defined exclusively as: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees. In adopting this new standard, the final rule rescinds the 2020 final rule that was promulgated by the prior Board. The new final rule more faithfully grounds the joint-employer standard in established common-law agency principles. In particular, the 2023 rule considers the alleged joint employers’ authority to control essential terms and conditions of employment, whether or not such control is exercised, and without regard to whether any such exercise of control is direct or indirect. By contrast, the 2020 rule made it easier for actual joint employers to avoid a finding of joint-employer status because it set a higher threshold that a putative joint employer must “possess and exercise . . . substantial direct and immediate control” over essential terms and conditions of employment, which has no foundation in common law. The new rule also provides extensive guidance to parties regarding their rights and responsibilities in situations where joint-employer status has been established. “The Board’s new joint-employer standard reflects both a legally correct return to common-law principles and a practical approach to ensuring that the entities effectively exercising control over workers’ critical terms of employment respect their bargaining obligations under the NLRA,” said Chairman Lauren McFerran. “While the final rule establishes a uniform joint-employer standard, the Board will still conduct a fact-specific analysis on a case-by-case basis to determine whether two or more employers meet the standard.” The Notice of Proposed Rulemaking was published by the Federal Register on September 6, 2022 and the comment period for initial comments was open until December 7, 2022. The Board received over 13,000 comments that it reviewed and considered in drafting the Final Rule. The effective date of the new rule is December 26, 2023, and the new standard will only be applied to cases filed after the effective date. Members Prouty and Wilcox joined Chairman McFerran in issuing the Final Rule. Member Kaplan dissented.

Daily eBriefs - October 25, 2023

Civil Procedure Where a group of employees brought suit against their employers, contractors providing war-zone security services to the Department of Defense, based on allegations that their working conditions violated the contractors’ recruiting representations, their employment contracts, and the Theater Wide Internal Security Services II contract between the contractors and the Department of Defense, the contractors met the limited burden imposed by the federal officer removal statute, 28 U.S.C. § 1442(a)(1), as the contractor corporations were “persons” for purposes of §1442(a)(1); the contractors “acted under” a federal officer because, under common-law agency principles, they were independent contractors serving as the government’s agents, rather than acting as non-agent service providers; and the contractors sufficiently alleged a colorable federal defense of compliance with the federal regulations incorporated into the TWISS II contract. DeFiore v. SOC - filed Oct. 25, 2023 Cite as 2023 S.O.S. 21-15261 Full text click here > http://sos.metnews.com/sos.cgi?1023//21-15261.

Daily eBriefs - October 20, 2023

A plaintiff alleging a representative claim under the Private Attorneys General Act must be aggrieved; an employer could not defeat a plaintiff’s assertion of standing by showing she had not been denied a meal or rest break during the year before she submitted her PAGA notice, the employer also needed to show she had been paid all outstanding meal and rest premiums—either before or after her termination. Arce v. Ensign Group - filed Sept. 19, 2023, publication ordered Oct. 19, 2023, Second District, Div. Five Cite as 2023 S.O.S. 3852 Full text click here >http://sos.metnews.com/sos.cgi?1023//B317161.

Brett Huckell Named Deputy to the Assistant General Counsel in the Division of Operations-Management

October 20, 2023 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the selection of Brett Huckell as Deputy to the Assistant General Counsel in the Agency’s Division of Operations-Management. In his new role, he will assist Operations in managing the Agency’s 48 field offices across 26 Regions and will provide programmatic support for national enforcement and administration of the National Labor Relations Act. Mr. Huckell earned his undergraduate degree from Washington State University in 2004, graduating summa cum laude, and his master’s degree from the University of Minnesota in 2006. He began his career at the NLRB in 2005 as a Co-op Field Examiner in the Agency’s Overland Park, Kansas, subregional office (then Region 17, now Region 14), and, upon graduation, was hired as a Field Examiner in the Tulsa Resident Office. He was promoted to Compliance Officer in 2009 and Supervisory Compliance Officer in 2020. In 2022, Mr. Huckell became a Supervisory Field Examiner in Region 14.

Dolores Boda Named Assistant to the General Counsel in the Division of Operations-Management

Today, the National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Dolores Boda as Assistant to the General Counsel in the Division of Operations-Management in Washington, DC. In her new position, Ms. Boda will assist the General Counsel in managing the 26 Regional Offices of the NLRB and provide programmatic support for the national enforcement and administration of the National Labor Relations Act. With a career spanning 24 years, Ms. Boda began working at the Agency in 1999 as an intern in the Region 8-Cleveland office. Upon graduation from Cleveland State University with a master’s in labor relations, Ms. Boda was hired as a Labor Management Relations Examiner in Region 8. After Ms. Boda was promoted to a Supervisory Labor Management Relations Examiner working in the Region 16-Fort Worth office, she joined the Division of Operations-Management staff in Washington, DC when she was promoted to the Deputy to the Assistant General Counsel position in 2014. “Dolores uses her formidable managerial and leadership skills to ensure strong enforcement of the Act is accomplished,” said General Counsel Jennifer A. Abruzzo. “Throughout her twenty-four-year tenure, she has performed exceedingly well, and I have no doubt that she will continue demonstrating her commitment to the Agency and its mission in her new role.”

USCIS Clarifies Policy on L-1 Petitions

U.S. Citizenship and Immigration Services has issued policy guidance in the USCIS Policy Manual clarifying that a sole proprietorship may not file a petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner. This Policy Manual update affirms the existing guidance. The update distinguishes a sole proprietor from a self-incorporated petitioner (such as a corporation or a limited liability company with a single owner), where the corporation or the single member limited liability company is a separate and distinct legal entity from its owner, which may petition for that owner. This update also clarifies guidance regarding blanket petitions. International organizations file blanket L-1 petitions on behalf of all individual entities named in the petition. USCIS is updating policy guidance to clarify that the failure to timely file an extension of the blanket petition does not trigger the 3-year waiting period before another blanket petition may be filed. This guidance, contained in Volume 2 of the Policy Manual, is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic. The L-1 nonimmigrant visa classification enables a U.S. employer that is part of a qualifying organization to temporarily transfer employees from one of its related foreign offices to locations in the United States. Existing USCIS policy and practice provide that a sole proprietorship may not file an L-1 petition on behalf of its owner.

Kevin McClue Named Regional Attorney in Region 15-New Orleans

Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Kevin McClue as the Regional Attorney of the NLRB Region 15-New Orleans, Louisiana. With a Regional Office in New Orleans, a Resident Office in Little Rock, and a Subregional Office in Memphis, Region 15 is responsible for conducting elections, investigating unfair labor practice charges, and protecting the right of workers to act collectively to improve their wages and working conditions throughout parts of Alabama, Arkansas, Florida, Louisiana, Mississippi, and Tennessee. Mr. McClue graduated from Loyola University with a Bachelor of Arts degree in Political Science in 1986. In 1989, he received his Juris Doctor from the Tulane University School of Law. Prior to joining the Agency in 2000 as a Field Attorney, he served on active duty in the United States Army as member of the Judge Advocate General’s Corps and was the Executive Director of the Legal Aid Bureau in New Orleans. Since 2012, Mr. McClue has served in various supervisory positions with the Agency, including Supervisory Field Attorney of the NLRB’s Region 15 and nationwide Supervisory Compliance Attorney in the Division of Operations-Management in Washington, DC. “Kevin is a tremendous public servant with a strong commitment to the National Labor Relations Act and the Agency,” said General Counsel Jennifer Abruzzo. “Throughout his long tenure, he has performed exceedingly well in roles of increasing responsibility, and I know that he will continue to do so as part of Region 15’s management team.”

Daily eBriefs - October 18, 2023

Employment Facebook shareholders adequately pleaded falsity as to statements in a 2016 Form 10-K filing with the Securities Exchange Commission in which Facebook represented the risk of third parties improperly accessing and using Facebook users’ data as purely hypothetical. In re Facebook Securities Litigation - filed Oct. 18, 2023 Cite as 2023 S.O.S. 22-15077 Full text click here >http://sos.metnews.com/sos.cgi?1023//22-15077.

Daily eBriefs - October 18, 2023

Employment Substantial evidence supported a finding that an employer committed an unfair labor practice by refusing to rehire union-affiliated former employees so it could avoid its statutory duty to bargain; an inference of animus could be drawn from the employer’s prior unlawful conduct and the testimony of a human resources manager. Kava Holdings v. National Labor Relations Board - filed Oct. 18, 2023 Cite as 2023 S.O.S. 21-70225 Full text click here >http://sos.metnews.com/sos.cgi?1023//22-15077.

NLRB Expands Website Language Accessibility

October 13, 2023 Today, the NLRB launched a new series of pages on its website that feature information in 17 languages on employee rights and employer responsibilities under the National Labor Relations Act. It also contains information on how to contact the Agency in those languages. The NLRB utilizes board agents and interpreters to assist in serving employees who speak languages other than English. Over the next several months, the NLRB will develop additional translated materials that will also be available on the website. “Workers need to know their statutory rights in order to fully exercise them,” said NLRB General Counsel Jennifer Abruzzo. “One of my top goals as General Counsel is robust education, protection, and enforcement of workers’ rights under the National Labor Relations Act. Having information available in as many languages as possible is a powerful tool toward reaching that goal.” As part of the NLRB’s initiative to reach speakers of other languages, in 2022, the NLRB created a Spanish language e-filing service on its website for users to file unfair labor practice charges and petitions for union elections. In March 2021, the NLRB launched a Spanish website with information about the National Labor Relations Board.

Unfair Labor Practices Charge Filings Up 10%, Union Petitions Up 3% in Fiscal Year 2023

October 13, 2023 Newly released case processing data confirms that the National Labor Relations Board continues to see an increasing demand for its services. In Fiscal Year (FY) 2023 (October 1, 2022–September 30, 2023), 22,448 cases were filed with the Agency, an increase of 10% over FY 2022. This was the highest number of cases filed since FY 2016. The Agency saw increases in both unfair labor practice charges and representation-related activity. In FY 2023, the number of unfair labor practice (ULP) charges filed with NLRB’s 48 Field Offices increased 10%—from 17,988 charges in FY 2022 to 19,854 charges in FY 2023, continuing the increase from FY 2021 to FY2022 when the Agency saw a 19% increase in ULPs filed. During the same period, 2,594 union representation petitions were filed—a 3% increase over FY 2022. This uptick in filings builds on last fiscal year’s dramatic surge in representation-related activity and represents the highest number filed since FY 2015. In FY 2022, 2,510 union representation petitions were filed—a 53% increase from the 1,638 petitions field in FY 2021. In another notable election-related development, after the Board released its decision in Cemex, Field Offices received 28 RM petitions filed by employers after being asked to voluntarily recognize employees’ union. Under the Cemex framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition. This increase in activity in the Agency’s field offices resulted in a corresponding increase in workload for the adjudicative side of the agency. The Board issued 246 decisions in contested cases during FY 2023, including more than a dozen significant precedent-setting cases, an uptick from 243 decisions in FY 2022. The Board’s increased productivity also slightly lowered the median age of cases pending before the Board—from 108 days in FY 2022 to 106 days in FY 2023. As was the case at the end of FY 2022, however, the Board’s case processing achievements were overtaken by a significant jump in case intake. In FY 2023, the Board received 321 unfair labor practice and representation cases, up from 308 cases in FY 2022, driven by a 10% rise in representation cases brought before the Board. As a result, although the Board—even at static staffing levels—processed more cases than last fiscal year, the rise in case intake left 191 cases pending before the Board at the end of FY 2023, an increase from 145 in FY 2022. The increased workload on both sides of the Agency remains a challenge, and comes as the NLRB continues to deal with funding and staffing shortages. In December 2022, Congress gave the NLRB a $25 million increase for FY 2023, ending a hiring moratorium, preventing furloughs, and allowing the NLRB to backfill some critical staff vacancies. However, the Agency remains understaffed after almost a decade of flat funding. In the past two decades, staffing in Field Offices has shrunk by 50%. “Dedicated NLRB employees have continued working hard to increase the Board’s productivity, but the continuing surge in case intake has again increased our year-end backlog. Although the Agency tremendously appreciated the $25 million increase in funding for FY 2023, and used every extra dollar to address critical staffing vacancies and infrastructure needs, additional resources are necessary to enable the Board to expand staffing capacity and continue processing cases more efficiently,” said Chairman Lauren McFerran. “Our committed and talented NLRB career employees continue to process cases with professionalism and care,” said General Counsel Jennifer Abruzzo. “The President’s Budget requests $376 million for the Agency, which is much needed to effectively and efficiently comply with our Congressional mandate when providing quality service promptly to the public in conducting hearings and elections, investigating charges, settling and litigating meritorious cases, and obtaining full and prompt remedies for workers whose rights are violated.”

Elicia Watts Appointed as Director of the Office of Appeals

Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Elicia Watts as Director of the Office of Appeals. In this position, Ms. Watts will oversee the Office which reviews appeals by employers, unions, and individuals who believe their unfair labor practice allegations have been wrongly dismissed by a Regional Office. The Office reviews about 2,000 cases per year. A 26-year veteran of the NLRB, Ms. Watts began her NLRB career in the Regional Office of Region 5 in Baltimore, Maryland in 1997 where she served as a field attorney. She then moved to the Washington Resident Office of Region 5 in Washington D.C. in 2000 as a senior trial attorney/specialist and handled high-profile regional litigation. In 2005, Ms. Watts transferred to the Office of Appeals and was then promoted to a supervisory position in 2008. She was named Deputy Director of the Office of Appeals in 2017. Ms. Watts also served as Acting Deputy Chief Counsel for Board staff in 2019. Ms. Watts received her bachelor’s degree from the University of California at Davis in 1992 and her Juris Doctor degree from the University of Pennsylvania Law School in 1997. “Elicia has proven throughout her career to be a talented and dedicated public servant with a strong commitment to the National Labor Relations Act and the Agency,” said General Counsel Jennifer Abruzzo. “For over 25 years, she has dedicated herself to advancing the Agency’s mission and I know she will continue to do so as she assumes her new role.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.

NLRB Transitions to SecureRelease for Processing Freedom of Information Act (FOIA) Requests

September 26, 2023 Starting October 1, 2023, members of the public can submit Freedom of Information Act (FOIA) requests for Agency records using SecureRelease. SecureRelease replaces FOIAOnline, which will be decommissioned by the Environmental Protection Agency (EPA) on September 30, 2023. For more information on the decommissioning of FOIAOnline, please see this FAQ. Please visit the NLRB’s website for more information on the transition to SecureRelease. The NLRB is committed to transparency in its work effectuating the National Labor Relations Act. Since 1967, the FOIA has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government.

Daily eBriefs - September 25, 2023

Employment A temporary layoff without a specific return date within the normal pay period is a discharge that triggers the prompt payment provisions of California Labor Code §201. The complimentary hotel rooms a hotelier provided to employees were excludable from the calculation of employees’ regular rate of pay under the federal Fair Labor Standards Act because they were excludable as other similar payments under 29 C.F.R. §778.224. Hartstein v. Hyatt - filed Sept. 22, 2023 Cite as 2023 S.O.S. 22-55276 Full text click here >http://sos.metnews.com/sos.cgi?0923//22-55276.

Polly Misra Appointed as Assistant General Counsel of the Office of Special Counsel and Labor Relations

You are subscribed to Announcements for National Labor Relations Board. This information has recently been updated, and is now available. Polly Misra Appointed as Assistant General Counsel of the Office of Special Counsel and Labor Relations 09/18/2023 09:49 AM EDT September 18, 2023 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Polly Misra as Assistant General Counsel in the Office of Special Counsel and Labor Relations (SCLR). In this position, Ms. Misra will manage SCLR, which is responsible for building collaborative labor relations with the Agency’s staff unions and advising and representing the Agency in all internal labor and employment matters. Ms. Misra began her career as a field attorney for NLRB’s Region 18 in Minneapolis. After working in Region 18 for four years, she worked in the NLRB’s Injunction Litigation Branch and the Solicitor’s Office before moving to the Contempt Branch (now Contempt, Compliance and Special Litigation), where she handled all aspects of Agency litigation in federal court. In 2019, Ms. Misra was promoted to supervisory attorney. Ms. Misra earned her bachelor’s degree from the University of Virginia and her J.D. from the Moritz College of Law at Ohio State University. “Polly has proven throughout her career at the NLRB to be a talented and committed public servant,” said General Counsel Jennifer Abruzzo. “For nearly 30 years, she has dedicated herself to advancing the Agency’s mission and she will continue to do so as she assumes her new role.”

Miguel Rodriguez Appointed as Assistant to the General Counsel in the Division of Operations-Management

September 11, 2023 Today, the National Labor Relations Board General Counsel Jennifer Abruzzo announced the appointment of Miguel Rodriguez as Assistant to the General Counsel in the Division of Operations-Management in Washington, DC. In his new position, Mr. Rodriguez will assist the General Counsel in managing the 26 Regional Offices of the NLRB and provide programmatic support for the national enforcement and administration of the National Labor Relations Act. With a career spanning nearly 20 years, Mr. Rodriguez began working at the Agency in 2003 as a Field Examiner in the Region 28-Phoenix office. After being promoted to Compliance Officer and then Supervisory Field Examiner in Region 28, Mr. Rodriguez joined the Division of Operations-Management staff in Washington, D.C. when he was promoted to the Deputy to the Assistant General Counsel position in 2016. Mr. Rodriguez was awarded both his bachelor’s and master’s degrees from Arizona State University. “Miguel is a very talented professional, who is committed to strong enforcement of the Act,” said General Counsel Jennifer Abruzzo. “Throughout his nearly twenty-year tenure, he has worked exceedingly well in various roles at the Agency and will continue to do so in his new role.”

Gwynne A. Wilcox Sworn in for Second Term as Board Member

September 11, 2023 The National Labor Relations Board welcomes Gwynne A. Wilcox for her second term as a Board member. Member Wilcox was nominated by President Biden on June 2, 2023 and confirmed by the Senate on September 6, 2023. She was sworn in today by Chairman Lauren McFerran for a term ending August 27, 2028. “I’m delighted to welcome Gwynne Wilcox back to the Board for a second term. She has been a dedicated public servant and a wonderful colleague. We are excited to welcome her back to the Board to continue our important work supporting the goals of the National Labor Relations Act,” said Chairman Lauren McFerran. “I am honored to be returning to the Board after a brief hiatus,” said NLRB Board Member Gwynne Wilcox. “As I build on the experiences of my first term, I’ll continue to faithfully apply the National Labor Relations Act to cases that come before me. I am looking forward to continuing to work alongside my dedicated colleagues at an agency that can make a real impact on the lives of working people.” Ms. Wilcox is the first Black woman to serve on the Board since its inception in 1935. In November 2021, Wilcox was presented with the Honorable Bernice B. Donald Diversity, Equity, and Inclusion in the Legal Profession Award by the American Bar Association’s Labor and Employment Law Section. The award is given to a member, law firm, corporation, organization or academic institution “that has demonstrated leadership in and commitment to advancing diversity, equity, and inclusion in the legal profession.” Before joining the Board, Wilcox was a senior partner at Levy Ratner, P.C., a New York City labor and employment law firm. While there, she served as Associate General Counsel of 1199SEIU United Healthcare Workers East and as a labor representative to the NYC Office of Collective Bargaining. Prior to joining Levy Ratner, she worked as a Field Attorney at Region 2 of the NLRB in Manhattan. Wilcox holds a bachelor’s from Syracuse University, a J.D. from Rutgers University School of Law-Newark, and is a Fellow in the College of Labor and Employment Lawyers.

Helene Lerner Appointed as Chief of the Contempt, Compliance, and Special Litigation Branch

Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Helene Lerner as Chief of the Contempt, Compliance, and Special Litigation Branch (CCSLB). In this position, Ms. Lerner will manage CCSLB, which represents the Board and the General Counsel in special litigation and conducts civil and criminal contempt litigation to obtain compliance with Board orders. Ms. Lerner began her career as an attorney for Beins, Axelrod, Osborne, Mooney, and Green, and then for Osborne Law Offices for eight and a half years. She joined the NLRB in 1997 as a staff attorney for what was then the Contempt and Compliance Litigation Branch. She became a supervisory trial attorney in CCSLB in 2014 and was promoted in 2021 to Deputy Branch Chief of CCSLB. A native of Oceanside, New York, Ms. Lerner earned her bachelor’s degree from the State University of New York at Albany and her J.D. from Georgetown Law School. “Helene has proven throughout her career at the NLRB to be an exemplary leader and public servant,” said General Counsel Jennifer Abruzzo. “For nearly 30 years, she has dedicated her talents to vigorously enforcing the National Labor Relations Act in various roles at the Agency and she will continue to do so as she assumes her new role.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.

Board Returns to Totality of Circumstances Test for Determining Concerted Activity

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. Board Returns to Totality of Circumstances Test for Determining Concerted Activity 08/31/2023 11:46 AM EDT August 31, 2023 Today, the National Labor Relations Board issued a decision in Miller Plastic Products, Inc. (decided on August 25th), returning to the long-established test for determining whether an employee who intends to induce group action by fellow employees engages in protected concerted activity under Section 7 of the National Labor Relations Act (the Act). In its decision, the Board reaffirmed the principle—originally announced in 1986 in Meyers Industries—that “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” The Board overruled Alstate Maintenance, LLC, (2019), which effectively narrowed the test for determining concerted activity. The Board explained that Alstate Maintenance had adopted an unduly restrictive test for defining concerted activity by introducing a mechanical checklist of factors in place of the Board’s traditional, fact-sensitive approach. This change imposed significant and unwarranted restrictions on concerted activity, undermining the goals of the Act. “The right of employees to engage in concerted activity to improve their working conditions is central to the National Labor Relations Act. The Board should not artificially constrain the definition of concerted activity, as the Alstate Maintenance decision did. By returning to the Board’s traditional approach, we better protect employees who seek to improve their working conditions,” said Chairman Lauren McFerran. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan concurred in the result, agreeing that the employee engaged in protected concerted activity, but disagreed with the majority's decision to reach the holding in Alstate Maintenance.

Daily eBriefs - August 30, 2023

Employment Absent express words or positive indicia to the contrary, a governmental agency is not within the general words of a statute; a state university is not subject to Labor Code §2802 as that would infringe on the discretion the university enjoys under the Education Code to set its own equipment reimbursement policies. Krug v. Board of Trustees of the California State University - filed Aug. 29, 2023, Second District, Div. One Cite as 2023 S.O.S. 3219 Full text click here >http://sos.metnews.com/sos.cgi?0823//B320588

Board Revises Standard on Employers’ Duty to Bargain Before Changing Terms and Conditions of Work

Today, the NLRB issued two full-Board decisions, Wendt Corporation and Tecnocap, LLC, (both decided on August 26, 2023), addressing the statutory duty of employers to bargain with unions before making changes in terms and conditions of work. In Wendt, the Board overruled Raytheon Network Centric Systems (2017), which had given employers greater latitude to make unilateral changes affecting a unionized workforce during a contractual hiatus or during negotiations for a first contract. The Board explained that allowing employers to justify discretionary unilateral changes during such time periods as a “past practice” was both inconsistent with the Supreme Court’s decision in NLRB v. Katz, 369 U.S. 736 (1962) and undermined the pro-bargaining policies of the National Labor Relations Act. The Board in Wendt also reaffirmed the longstanding principle that an employer may never rely on an asserted past practice of making unilateral changes before employees were represented by a union (when the employer had no duty to bargain) to justify unilateral changes after the workers select a bargaining representative. In Tecnocap, the Board overruled a different aspect of Raytheon that had not been addressed in Wendt. The Board held that an employer’s past practice of unilateral changes that was developed under a management-rights clause in a collective-bargaining agreement cannot authorize unilateral changes made after the agreement expires and while bargaining for a new agreement is under way. The Board explained that the Raytheon holding harmed the collective-bargaining process in two ways: It forced unions to bargain to regain terms of employment lost to post-expiration unilateral changes, and it discouraged unions from agreeing to management-rights clauses in the first place. “Our decision today returns to a more faithful application of Supreme Court precedent. By protecting employees who have chosen a union representative from being subject to discretionary unilateral changes in their terms and conditions of employment without bargaining, the policy we announce today better promotes the collective-bargaining process that lies at the core of the National Labor Relations Act,” said Chairman Lauren McFerran. Members Wilcox and Prouty joined Chairman McFerran in issuing the decisions. In Wendt, Member Kaplan concurred in finding that the employer acted unlawfully but but did not agree with the majority’s decision to reach the validity of Raytheon upon remand. In Tecnocap, Member Kaplan dissented.

National Labor Relations Board Issues Final Rule to Restore Fair and Efficient Procedures for Union Elections

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. National Labor Relations Board Issues Final Rule to Restore Fair and Efficient Procedures for Union Elections 08/24/2023 09:34 AM EDT August 24, 2023 The National Labor Relations Board today adopted a Final Rule amending its procedures governing representation elections. This Rule largely reverses the amendments made by the Board’s 2019 Election Rule, which introduced new delays in the election process. The new rule returns the Board’s key election procedures to those put in place by a 2014 rule that was adopted using a notice-and-comment process and that was uniformly upheld by federal courts. Last year, the United States Court of Appeals for the District of Columbia Circuit struck down parts of the 2019 Rule, and the Board has already rescinded those provisions. “It is a basic principle of the National Labor Relations Act that representation cases should be resolved quickly and fairly,” said Chairman Lauren McFerran. “By removing unnecessary delays from the election process, the new rule supports these important goals, and allows workers to more effectively exercise their fundamental rights.” The new rule will meaningfully reduce the time it takes to get from petition to election in contested elections and will expedite the resolution of any post-election litigation. Highlights of the new rule’s changes include: Allowing pre-election hearings to begin more quickly; Ensuring that important election information is disseminated to employees more quickly; Making pre- and post-election hearings more efficient; and Ensuring that elections are held more quickly. As with prior changes to the Board’s election processes, the new rule will become effective four months from the date of publication to ensure adequate time for the NLRB’s Regional offices to implement the new procedures. A companion rule also ensures that two provisions of the 2019 Rule that had been previously enjoined by a federal district court, but were scheduled to become effective on September 10, 2023, will not take effect. The new rule rescinds those provisions. The final rule was approved by Board Chairman Lauren McFerran and Members Gwynne A. Wilcox and David M. Prouty. Board Member Marvin E. Kaplan dissented. The rule will be published in the Federal Register on August 25, 2023 and will take effect on December 26, 2023.

Board Issues Decision Announcing New Framework for Union Representation Proceedings

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. Board Issues Decision Announcing New Framework for Union Representation Proceedings 08/25/2023 10:06 AM EDT August 25, 2023 Today, the Board issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election. The new framework will both effectuate employees’ right to bargain through representatives of their own choosing and improve the fairness and integrity of Board-conducted elections. Under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election. However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and—rather than re-running the election—the Board will order the employer to recognize and bargain with the union. The Board explained that the revised framework represents an effort to better effectuate employees’ right to bargain through their chosen representative, while acknowledging that employers have the option to invoke the statutory provision allowing them to pursue a Board election. When employers pursue this option, the new standard will promote a fair election environment by more effectively disincentivizing employers from committing unfair labor practices. The new Cemex standard differs from the historical Joy Silk standard, which required an employer to bargain with a union unless it had a good-faith doubt of the union's majority status. “Today’s decision, along with the Board’s recently issued Final Rule on Representation, will strengthen the Board’s ability to provide workers across the country with a timely and fair process for seeking union representation,” said Chairman Lauren McFerran. “The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment. Under Cemex, an employer is free to use the Board’s election procedure, but is never free to abuse it—it's as simple as that.” In Cemex, the Board found that the employer engaged in more than 20 instances of objectionable or unlawful misconduct during the critical period between the filing of the election petition and the election. Accordingly, the Board found that the employer was subject to a bargaining order under both the Supreme Court’s decision in NLRB v. Gissel Packing Co. and under the newly announced standard, applied retroactively in this case. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan joined the majority in part and dissented in part.

Board Clarifies 2019 Decision on 'Wright Line' Burden

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. Board Clarifies 2019 Decision on 'Wright Line' Burden 08/28/2023 03:18 PM EDT August 28, 2023 Today, the Board issued a decision in Intertape Polymer Corp. explaining that the Board’s 2019 decision in Tschiggfrie Properties, Ltd., did not add to or change the General Counsel’s burden under the longstanding Wright Line test. While the Tschiggfrie decision purported to “clarify” the Wright Line test, that clarification has caused unnecessary confusion and has, at times, been interpreted as modifying or heightening the General Counsel’s Wright Line burden. In Intertape, the Board reaffirmed that the General Counsel’s burden under Wright Line remains the same as it has been throughout decades of Board jurisprudence. Under Wright Line, the elements required to sustain the General Counsel’s initial burden are: (1) union or other protected activity by the employee; (2) employer knowledge of that activity; and (3) animus against union or other protected activity on the part of the employer. In Intertape, the Board reaffirmed that, in applying Wright Line, the Board looks to whether the evidence in the record as a whole supports a reasonable inference that protected activity was a motivating factor in a challenged employment action. With regard to the General Counsel’s burden to prove animus specifically, the decision clarifies that either direct or circumstantial evidence can support a finding of animus, and that there is no requirement that the demonstrated animus is specifically directed toward the employee’s own protected activity or even the particular employee against whom the employer has taken action. “The Wright Line standard is the Board’s foundational framework for assessing whether workers’ rights have been violated. It is important that the Board provide certainty to all parties about how the elements of this test are interpreted and applied,” said Chairman Lauren McFerran. “In Tschiggfrie, the Board unnecessarily tried to clarify the Wright Line standard, but ended up doing more harm than good. Because the decision has caused significant confusion for parties before the Board, we take this opportunity to make clear that this longstanding bedrock of Board law remains unchanged.” Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan dissented.

Robert N. Oddis Appointed as Assistant General Counsel of the Injunction Litigation Branch

Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Robert N. Oddis as Assistant General Counsel of the Injunction Litigation Branch. In this position, Mr. Oddis will manage the Injunction Litigation Branch, which coordinates the initiation and litigation of injunction proceedings under Section 10(j) and 10(l) of the National Labor Relations Act. Mr. Oddis began his career at the NLRB as law clerk in Region 6-Pittsburgh in 1997. In 1999, he began serving as an attorney in the Division of Advice. He was promoted to supervisory attorney in the Regional Advice Branch in 2014. A native of Pittsburgh, Pennsylvania, Mr. Oddis graduated from the University of Pittsburgh and the University of Pittsburgh School of Law. “Rob is committed to strongly enforcing the Act and is an exceptionally talented attorney,” said General Counsel Jennifer Abruzzo. “Throughout the entirety of his career, he has dedicated his talents to vigorously enforcing the National Labor Relations Act in various roles at the Agency and I am confident he will continue to do so as he assumes his new role.”

Dawn L. Goldstein Appointed as Deputy Associate General Counsel of the Division of Legal Counsel

August 04, 2023 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Dawn L. Goldstein as Deputy Associate General Counsel of the Division of Legal Counsel. In this position, Ms. Goldstein will assist the Associate General Counsel in overseeing the NLRB’s Contempt, Compliance, and Special Litigation Branch (CCSLB), Freedom of Information Act (FOIA) Branch, the E-Litigation Branch, and Privacy Counsel. Ms. Goldstein has spent most of her career employed at the Board, beginning in 2000. For the previous two years, she has served as the CCSLB Branch Chief, after serving for five years as the CCSLB Deputy Branch Chief, and before that, was a supervisor and attorney in CCSLB and Special Litigation. Ms. Goldstein also spent five years at the Department of Energy’s Office of Hearings and Appeals. A native of North Miami, Florida, Ms. Goldstein graduated from the University of Florida in Gainesville with a B.A. in Political Science. She is a graduate cum laude of Boston University School of Law and is admitted to the Massachusetts Bar. “Dawn is an exceptionally talented attorney, who is committed to strong enforcement of the Act,” said General Counsel Jennifer Abruzzo. “Throughout her over twenty-year tenure, she has worked tirelessly in various roles at the Agency and will continue to serve us exceedingly well as she assumes her new role, helping to oversee the Division of Legal Counsel.”

Board Adopts New Standard for Assessing Lawfulness of Work Rules

August 02, 2023 Today, the NLRB issued a decision in Stericycle Inc., adopting a new legal standard for evaluating employer work rules challenged as facially unlawful under Section 8(a)(1) of the National Labor Relations Act. Today’s decision overrules Boeing Co. (2017), which was later refined in LA Specialty Produce Co. (2019). The new standard builds on and revises the Lutheran Heritage Village-Livonia (2004) standard. The Board had previously invited parties and amici to submit briefs addressing whether the Board should reconsider the Boeing standard. In Stericycle, Board explained that the primary problem with the Boeing and LA Specialty Produce standard was that it permitted employers to adopt overbroad work rules that chill employees’ exercise of their rights under Section 7 of the Act. Under that standard, an employer was not required to narrowly tailor its rules to promote its legitimate and substantial business interests without unnecessarily burdening employee rights. The Board also rejected Boeing’s categorical approach to work rules, under which certain types of rules were held to be always lawful, regardless of how they were drafted or what interests a particular employer cited in defense of the rule. Under the new standard adopted in Stericycle, the General Counsel must prove that a challenged rule has a reasonable tendency to chill employees from exercising their rights. If the General Counsel does so, then the rule is presumptively unlawful. However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. If the employer proves its defense, then the work rule will be found lawful to maintain. In line with this framework, the Board rejected the categorical approach of Boeing in favor of case-specific consideration of work rules. “Boeing gave too little consideration to the chilling effect that work rules can have on workers’ Section 7 rights. Under the new standard, the Board will carefully consider both the potential impact of work rules on employees and the interests that employers articulate in support of their rules. By requiring employers to narrowly tailor their rules to serve those interests, the Board will better support the policies of the National Labor Relations Act,” said Chairman Lauren McFerran. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan dissented.

Daily eBriefs - July 25, 2023

Employment An employer’s failure to comply with the pre-election disclosure requirement renders an alternative workweek schedule election null and void only if the employer omits material information about the proposed AWS’s effects. Trial courts may not strike or dismiss a Private Attorneys General Act claim for lack of manageability. Woodworth v. Loma Linda University Medical Center - filed July 24, 2023, Fourth District, Div. Two Cite as 2023 S.O.S. 2653 Full text click here http://sos.metnews.com/sos.cgi?0723//E072704.

Region 6-Pittsburgh Secures Interim Settlement Agreement Requiring Starbucks to Reinstate Fired Workers and Cease and Desist from Further Firings at Two Pittsburgh Stores

July 20, 2023 On Thursday, July 13, 2023, the Regional Director of Region 6-Pittsburgh approved an interim settlement agreement with Starbucks providing interim remedies based on multiple unfair labor practice allegations. Among the remedies obtained in the settlement, Starbucks has agreed to take the following steps: Offer interim reinstatement to four fired employees, pending Board adjudication; Rescind employee work-availability requirements the company had implemented; Cease and desist from future firings of workers for engaging in protected union activity at two Pittsburgh stores; and Post a notice to employees about employee rights under the National Labor Relations Act at the two stores. This interim settlement was reached under a new initiative from the General Counsel announced last October, under which Regions seek to settle the Section 10(j) aspect of cases warranting interim relief when efforts to settle the administrative case are unsuccessful. Respondents are given the opportunity to voluntarily agree to an interim agreement that includes remedies, such as reinstating alleged discriminatees or agreeing to bargain, pending final resolution of the administrative case by the Board. If Starbucks violates this settlement, the Regional Director will resume consideration of seeking Section 10(j) injunctive relief in district court. “It is unlawful for employers to retaliate against employees for exercising their right to form a union,” said Region 6 Regional Director Nancy Wilson. “I am very pleased with the interim settlement, which will provide much needed immediate relief to workers at these stores, and I greatly appreciate the hard work of all of the Region 6 staff who assisted in achieving it.” “Because of this settlement, Starbucks will now offer reinstatement to four fired employees, which is a crucial step in ensuring these workers can freely exercise their right to join together to improve their working conditions and organize a union,” said NLRB General Counsel Jennifer Abruzzo. “Starbucks should take note that the NLRB will continue to vigorously protect workers’ rights to organize and collectively bargain through representatives of their free choosing.”

Region 1-Boston Wins Administrative Law Judge Decision finding Dollar General Unlawfully Fired a Worker, Surveilled and Interrogated Employees, Solicited Grievances and Granted Benefits, and Threatened a Store Closure

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. Region 1-Boston Wins Administrative Law Judge Decision finding Dollar General Unlawfully Fired a Worker, Surveilled and Interrogated Employees, Solicited Grievances and Granted Benefits, and Threatened a Store Closure 07/20/2023 09:46 AM EDT July 20, 2023 On Monday, July 17, 2023, NLRB Administrative Law Judge Arthur Amchan held that Dolgen Corporation, LLC, d/b/a Dollar General (Dollar General) violated the National Labor Relations Act by firing a pro-union worker, illegally surveilling and interrogating employees, and threatening to close a store where a petition for union representation had recently been filed. The dispute began in September 2021 when United Food and Commercial Workers Local 371 filed a petition to represent the employees at Dollar General’s Barkhamsted, Connecticut store. The next day, two representatives from corporate headquarters’ “Rapid Response Team” arrived at the store, followed days later by a third. The corporate officials maintained a daily presence at the store for the entire period leading up to a scheduled election, over four weeks later — an unprecedented amount of time. During that month, these corporate officials surveilled employees’ union activity, solicited grievances and granted benefits, kept a running assessment of who they believed was likely to vote in favor of the union, impliedly threatened that if the Union was voted in the store would be closed, and two weeks before the election, fired the worker they believed was the lead supporter of the union. Region 1-Boston issued a complaint alleging the employer’s conduct violated the National Labor Relations Act based on interference with protected activity and by illegally firing a worker for engaging in protected activity. After reviewing testimony and evidence presented in a hearing, Judge Amchan agreed. Judge Amchan wrote in his decision that the evidence, “established a corporate-wide determination to interfere, coerce, and restrain Dollar General employees in the exercise of their Section 7 rights — of which its activities at Barkhamstead were only a part.” “The unfair labor practices herein involve individuals at the highest levels of Dolgen management. They were also committed pursuant to a corporate policy as to how to deal with organizing efforts by Dollar General employees. They also constitute blatant hallmark unfair labor practices,” said Judge Amchan. Judge Amchan ordered Dollar General to reinstate the fired worker, including compensating for all direct or foreseeable pecuniary harms and backpay, and distribute a nationwide electronic and physical notice posting of employees’ rights at all Dollar General facilities that were canvassed in connection with the representation petition at Barkhamsted. Further, due to Dollar General’s numerous and blatant unlawful actions, Judge Amchan also issued a broad cease and desist order requiring Dollar General to stop discharging or otherwise discriminating against employees for engaging in union or other protected concerted activity and from, in any manner, interfering with, restraining or coercing employees in the exercise of their Section 7 rights. “Workers have the right to advocate collectively for a more equitable workplace — and it is unlawful for employers to prohibit or retaliate against them for doing so” said NLRB Region 1 Regional Director Laura Sacks. Director Sacks added, “I’m proud of the staff of Region 1 for diligently pursuing this significant case and litigating for strong, meaningful remedies.”

NLRB Appoints Six New Administrative Law Judges

July 17, 2023 The National Labor Relations Board today announced the appointment of six new Administrative Law Judges (ALJs): Lisa Friedheim-Weis, Sarah Karpinen, Susannah Merritt, Renée McKinney, Gladys Rebekah Ramirez, and Michael Silverstein. The new judges were chosen after a rigorous vetting process that saw over 200 applicants. Judge Lisa Friedheim-Weis is currently a field attorney for Region 13-Chicago, where she has worked for the majority of the past 26 years, leaving briefly to work at a law firm before returning to the Board. Judge Friedheim-Weis received her bachelor's degree in Industrial and Labor Relations from Cornell University and her Juris Doctor degree from the University of Illinois, where she graduated cum laude. Judge Sarah Karpinen returns to the Board after most recently being an Associate General Counsel for the United Auto Workers in Detroit. Previously, she worked as a Trial Attorney in Region 7-Detroit for 13 years. In the interim, Judge Karpinen served as an Assistant U.S. Attorney in the Eastern District of Michigan and as an attorney in the U.S. Office of Special Counsel in its Midwest Field Office. Judge Karpinen received her bachelor's degree from Hampshire College, her master's degree in labor studies from the University of Massachusetts Amherst, and her Juris Doctor from Wayne State University Law School, where she was the editor-in-chief of the Wayne Law Review. Judge Susannah Merritt returns to the Board after spending the last eight years as an Administrative Law Judge for the Social Security Administration in Philadelphia. Previously she worked for the Board, first in its Office of Representation Appeals, and then as a Trial Attorney in Region 19-Seattle. Judge Merritt received her bachelor's degree from Vassar College, her master's degree from the University of Virginia, and her Juris Doctor degree from Georgetown University. Judge Renée McKinney is currently the Regional Attorney in Region 6-Pittsburgh. She has worked at the Board for the past 15 years, working in various Agency departments since she was first hired as an Honors Attorney in the Office of the General Counsel. She has also served as a Trial Attorney in Region 13-Chicago and Region 7-Detroit, and was promoted to Supervisory Attorney in Region 6 before her current appointment. Judge McKinney received her bachelor's and master's degrees from the University of Michigan and her Juris Doctor degree from Chicago-Kent College of Law. Judge Gladys Rebekah Ramirez returns to the Board after working in the private sector for five years, most recently as a senior labor and employment counsel for a Fortune 100 corporation in Chicago, and before that, practicing labor and employment law with an AM Law 100 law firm in Indianapolis. Previously, Judge Ramirez spent 17 years as trial counsel for the Board in Region 25-Indianapolis. Judge Ramirez received her bachelor’s degree magna cum laude from the University of Puerto Rico, her Juris Doctor degree from the University of Puerto Rico law school and her L.L.M. from Indiana University Maurer School of Law. Judge Michael Silverstein is currently a Field Attorney for Region 22-Newark. Judge Silverstein has worked for the Board for 20 years after starting as a Field Attorney in Region 7-Detroit and then transferring to Region 22-Newark where he has served for the past 14 years. Judge Silverstein received his bachelor's degree from Cornell University and his Juris Doctor degree from Boston University. These hires will bring the total number of Agency ALJs to 36. As the Agency has experienced a significant increase in the number of unfair labor practice cases in the last year, it has seen a corresponding increase in the number of cases waiting for trial before an ALJ. The addition of new judges to the Division of Judges will help alleviate backlog and expedite consideration of unfair labor practice cases. “We are thrilled to welcome these much needed and highly qualified new judges to the Division of Judges,” said Board Chairman Lauren McFerran. “As unfair labor practice charges continue to increase, we are thankful for the ability to hire additional judges this year and are grateful for their service to the Agency and this country.” “Administrative Law Judges serve a crucial role at the Agency, and their importance has only been underscored as we see a sharp increase in cases going to hearing,” said Chief Administrative Law Judge Robert A. Giannasi. “We’re looking forward to having the new judges join the Division of Judges, as they have shown a dedication to effectuating the National Labor Relations Act and will continue to uphold the mission the Act in their new roles.”

Daily eBriefs - July 13, 2023

Employment Where a theme park operator and a city entered into an agreement providing the theme park operator would make up the shortfall if there was any year in which the city’s incremental tax revenues failed to meet its bond obligations, and the city agreed the theme park would be reimbursed for its shortfall payments in those years when the city’s incremental tax revenues rebounded and were sufficient to meet its bond obligations, the agreement gave the theme park operator the right to receive a rebate, which constituted a city subsidiary for purposes of the city’s living wage ordinance, requiring the theme park to pay its employees at the designated minimum wages. Grace v. Walt Disney - filed July 13, 2023, Fourth District, Div. Three Cite as 2023 S.O.S. 2481 Full text click here >http://sos.metnews.com/sos.cgi?0723//G061004

Daily eBriefs - July 11, 2023

Labor Law The plain language of Labor Code §2802(a) flatly requires the employer to reimburse an employee for all expenses that are a direct consequence of the discharge of [the employee’s] duties; under the statutory language, the obligation does not turn on whether the employer’s order was the proximate cause of the expenses; it turns on whether the expenses were actually due to performance of the employee’s duties. Thai v. International Business Machines - filed July 11, 2023, First District, Div. Five Cite as 2023 S.O.S. 2415 Full text click here >http://sos.metnews.com/sos.cgi?0723//A165390

NLRB Region-22 Wins Injunction Requiring HSA Cleaning to Rehire Two Unlawfully Fired Workers, Read and Post the Court’s Order, and Cease and Desist from Unlawful Activities

On July 6, 2023, U.S. District Judge Kevin McNulty of the District Court of New Jersey issued an injunction requiring HSA Cleaning, Inc. to reinstate two unlawfully fired workers, read and post the Court’s Order in English and Spanish, expunge the employees’ records, and cease and desist from unlawful activities. The injunction was issued based on a petition for temporary injunctive relief filed by Region 22 Regional Director Suzanne Sullivan in June 2023. Section 10(j) of the National Labor Relations Act authorizes the National Labor Relations Board to seek injunctions against employers and unions in federal district courts to stop unfair labor practices and ensure that employees' rights will be adequately protected from remedial failure due to the passage of time. The Region’s petition explained that HSA Cleaning illegally fired two workers after they spoke to their colleagues about their wages and working conditions, assisted in union organizing efforts with the Service Employees International Union Local 32BU, and engaged in protected concerted activities. In his decision, Judge McNulty stated that the Board has satisfied its burden of establishing that there is reasonable cause to believe that HSA engaged in unfair labor practices and that the Board has also put forward evidence of the chilling effect that these alleged actions appear to have had on other employees’ support for the union. Judge McNulty also noted that the Board’s application for an injunction was “made in the public interest to remove an employer-created impediment to organization.” “This injunction ordering HSA Cleaning to reinstate the two unlawfully fired workers in New Jersey is a crucial step in ensuring these workers can freely exercise their right to join together to improve their working conditions,” said NLRB General Counsel Jennifer Abruzzo. “HSA Cleaning, and other employers should take note that the NLRB will continue to vigorously protect workers’ rights to organize.” “I’m extremely proud of our Regional employees for their hard work on this case,” said Region 22-Newark Regional Director Suzanne Sullivan. “Region 22’s staff is dedicated to effectuating the National Labor Relations Act so that all workers can fully and freely exercise their Section 7 rights.”

Board Modifies Independent Contractor Standard under National Labor Relations Act

06/13/2023 01:04 PM EDT June 13, 2023 In a decision issued today in The Atlanta Opera, Inc., the Board returned to the 2014 FedEx Home Delivery (FedEx II) standard for determining independent contractor status under the National Labor Relations Act (the Act), and overruled SuperShuttle (2019). In applying the FedEx II standard, the Board found that the makeup artists, wig artists, and hairstylists who work at the Atlanta Opera—had filed an election petition with the Board seeking union representation—are not independent contractors, excluded from the Act, but rather are covered employees. In its decision, the Board reaffirmed longstanding principles—consistent with the instructions of the Supreme Court—and explained that its independent-contractor analysis will be guided by a list of common-law factors. The Board expressly rejected the holding of the SuperShuttle Board that entrepreneurial opportunity for gain or loss should be the “animating principle” of the independent-contractor test. The Board further explained that entrepreneurial opportunity would be taken into account, along with the traditional common-law factors, by asking whether the evidence tends to show that a supposed independent contractor is, in fact, rendering services as part of an independent business. In reviewing the facts of this case and applying the FedEx II standard in Atlanta Opera, the Board determined that the majority of the traditional common-law factors point toward employee status. The Board also determined that the evidence did not show that the stylists rendered services as part of their own independent businesses. “In today’s decision, the Board returns to the independent contractor test articulated in FedEx II, and reaffirms the Board’s commitment to the core common-law principles that the Supreme Court has determined should guide the Board’s consideration of questions involving employee status,” said Chairman Lauren McFerran. “Applying this clear standard will ensure that workers who seek to organize or exercise their rights under the National Labor Relations Act are not improperly excluded from its protections.” In December 2021, the Board invited parties and amici to submit briefs addressing whether the Board should reconsider its standard for determining the independent contractor status of workers. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan dissented from the overruling of SuperShuttle, but concurred in finding that the stylists were employees, not independent contractors.

Daily eBriefs - June 7, 2023

Employment Music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex; harassment, whether aural or visual, need not be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim; the challenged conduct’s offensiveness to multiple genders is not a certain bar to stating a Title VII claim. Sharp v. S&S ACTIVEWEAR - filed June 7, 2023 Cite as 2023 S.O.S. 21-17138 Full text click here >

Matthew S. Lomax Named Regional Director for Region 27-Denver

June 08, 2023 Today, General Counsel Jennifer A. Abruzzo announced the appointment of Matthew S. Lomax as the Regional Director of the NLRB Region 27-Denver office. With a Regional Office in Denver, Colorado, Region 27 is responsible for conducting elections, investigating unfair labor practice charges, and protecting the right of workers to act collectively to improve their wages and working conditions throughout Colorado, Utah, and Wyoming, as well as parts of Idaho, Montana, and Nebraska. “Matt is an exemplary public servant with a strong commitment to the National Labor Relations Act,” said General Counsel Jennifer Abruzzo. “I am certain that he will use his considerable skills and talents in this new leadership role and will work every day to fully effectuate the Act and faithfully serve the public.” A native of Saint Louis, Missouri, Matthew Lomax earned a Bachelor of Science in Justice Systems from Truman State University in Kirksville, Missouri and a Master of Business Administration from Webster University in Saint Louis, Missouri. He began his career with the Agency in 1997 in St. Louis as a Labor-Management Relations Examiner and was promoted to Supervisory Field Examiner in Denver in 2011.

Daily eBriefs - June 1, 2023

Employment California Labor Code §2810.3(a)’s requirement that work take place on the premises of the client employer requires that a client employer exercise some element of control over the place where the laborers work. Morales-Garcia v. Better Produce - filed June 1, 2023 Cite as 2023 S.O.S. 22-55119 Full text click here >http://sos.metnews.com/sos.cgi?0623//22-55119 Employment The National Labor Relations Act did not preempt a plaintiff’s tort claims alleging that a union intentionally destroyed its company property during a labor dispute. Glacier Northwest v. International Brotherhood of Teamsters Local Union No. 174 - filed June 1, 2023 Cite as 2023 S.O.S. 21-1449 Full text click here >http://sos.metnews.com/sos.cgi?0623//21-1449_d9eh

Arguments over the legality of DACA will be heard in a federal court in Texas

A MARTÍNEZ, HOST: In Houston today, a federal judge is again hearing arguments about the legality of DACA. The Deferred Action for Childhood Arrivals program provides temporary legal status to immigrants brought to the U.S. as children. Texas is among the states challenging DACA, first started by the Obama administration more than a decade ago. We spoke earlier with immigration reporter Stella Chavez of member station KERA in Dallas. Stella, what can we expect in court today? What are the attorneys going to be arguing? STELLA CHAVEZ, BYLINE: So basically, the attorneys for the civil rights group MALDEF, and that's the Mexican American Legal Defense and Educational Fund, they're going to focus on two main issues. The first is that neither Texas nor the other states in this multi-state lawsuit have standing to sue. And so what that means is that the states haven't shown that DACA has caused their state any injury, for example, that DACA recipients aren't a financial burden. And the second issue they'll argue is that DACA is, in fact, lawful. So in other words, the federal government has the right to allow DACA recipients to stay in the country, receive work permits, attend college, basically live here lawfully. MARTÍNEZ: Yeah. And this isn't the first legal challenge for the program. I know that Judge Andrew Hanen ruled nearly two years ago that DACA was unlawful. CHAVEZ: Yes, that's right. But it's complicated. It's been a very long legal battle going back several years. And after Hanen's ruling, it was appealed to the fifth court, which agreed with Hanen. The Biden administration then fortified some DACA protections by finalizing a rule, and then the case was kicked back to his court. So here we are again, basically with Texas and the other states still challenging the legality of the program. MARTÍNEZ: Yeah. Now for the 600,000 active DACA recipients, what does this all mean or what it - could it all mean for them? CHAVEZ: Well, a lot of them were kids when they were brought to this country. I mean, the oldest recipients are now in their early 40s. Some are married with families. They have jobs. They're actually teachers, health workers. They're in social services. And many of them have lived in the U.S. longer than in their home countries, and they actually feel more connected to this country. So some may not even speak their parents' language or speak it well, and it's been really stressful. A lot of people I've talked to have said that they are constantly worried about their future. MARTÍNEZ: All right. So when might there be a ruling in this case? CHAVEZ: So observers say they don't expect the judge to rule right away. And when he does, it won't necessarily mean the end of DACA. So if he rules against it, it'll likely be challenged. We can expect more court dates. And, in fact, most people expect the case to end up back at the U.S. Supreme Court. And so while all of this is happening, current DACA recipients would likely get to keep their status, but new applicants would still be denied. So there's still a lot of uncertainty. MARTÍNEZ: Yeah, until Congress decides to act. That's Stella Chavez of member station KERA. Stella, thanks. CHAVEZ: Yeah. Thank you, A. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.

Daily eBriefs - May 31, 2023

Contracts An arbitration agreement unambiguously excluded Private Attorneys General Act claims where it stated that “claims under PAGA…are not arbitrable”; it is not objectively reasonable to interpret the phrase “claims under PAGA” to include some PAGA claims while excluding others. Duran v. EmployBridge Holding - filed April 27, 2023, publication ordered May 30, 2023, Fifth District Cite as 2023 S.O.S. 1802 Full text click here >http://sos.metnews.com/sos.cgi?0623//F084167

NLRB General Counsel Issues Memo on Non-competes Violating the National Labor Relations Act

Today, NLRB General Counsel Jennifer Abruzzo sent a memo to all Regional Directors, Officers-in-Charge, and Resident Officers, setting forth her view that the proffer, maintenance, and enforcement non-compete provisions in employment contracts and severance agreements violate the National Labor Relations Act except in limited circumstances. The memo explains that overbroad non-compete agreements are unlawful because they chill employees from exercising their rights under Section 7 of the National Labor Relations Act, which protects employees’ rights to take collective action to improve their working conditions. Specifically, these agreements interfere with employees ability to: 1. concertedly threaten to resign to secure better working conditions; 2. carry out concerted threats to resign or otherwise concertedly resign to secure improved working conditions; 3. concertedly seek or accept employment with a local competitor to obtain better working conditions; 4. solicit their co-workers to go work for a local competitor as part of a broader course of protected concerted activity; 5. seek employment, at least in part, to specifically engage in protected activity, including union organizing, with other workers at an employer’s workplace. “Non-compete provisions reasonably tend to chill employees in the exercise of Section 7 rights when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work,” said General Counsel Abruzzo. “This denial of access to employment opportunities interferes with workers engaging in Section 7 activity in a number of ways—for example, workers know that they will have greater difficulty replacing their lost income if they are discharged for exercising their statutory rights to organize and act together to improve working conditions; their bargaining power is undermined in the context of lockouts, strikes and other labor disputes; and their social ties and solidarity leading to improvements in working conditions at workplaces are lost as they scatter to the four winds.” General Counsel Abruzzo explains that in some cases, noncompete agreements could be lawful if the provisions clearly restrict only individuals’ managerial or ownership interests in a competing business, or true independent-contractor relationships. Moreover, there may be circumstances in which a narrowly tailored non-compete agreement’s infringement on employee rights may be justified by special circumstances. The memo also notes that the General Counsel is committed to an interagency approach to restrictions on the exercise of employee rights, including limits to workers’ job mobility, including information sharing and referrals to other agencies. Last year, the NLRB entered into memoranda of understanding with the Federal Trade Commission and the Department of Justice’s Antitrust Division, both of which have addressed the anticompetitive effects of non-compete agreements.

Daily eBriefs - May 25, 2023

Employment A trial court erred in admitting evidence about activities that occurred before an employee filed his claim that his employer retaliated against him for filing an internal complaint with its Equal Opportunity Office; the court abused its discretion in admitting the internal complaints and supplements into evidence as they were hearsay. Kourounian v. California Department of Tax and Fee Administration - filed May 24, 2023, Second District, Div. Eight Cite as 2023 S.O.S. 1680 Full text click here >http://sos.metnews.com/sos.cgi?0523//B309007.

Daily eBriefs - May 24, 2023

A trial court erred in admitting evidence about activities that occurred before an employee filed his claim that his employer retaliated against him for filing an internal complaint with its Equal Opportunity Office; the court abused its discretion in admitting the internal complaints and supplements into evidence as they were hearsay. Kourounian v. California Department of Tax and Fee Administration - filed May 24, 2023, Second District, Div. Eight Cite as 2023 S.O.S. 1680 Full text click here >http://sos.metnews.com/sos.cgi?0523//B309007.

Daily eBriefs - May 22, 2023

Employment A report of unlawful activities made to an employer or agency that already knew about the violation is a protected “disclosure” within the meaning of Labor Code §1102.5(b). People ex rel. Garcia-Brower v. Kolla’s - filed May 22, 2023 Cite as 2023 S.O.S. 1629 Full text click here >http://sos.metnews.com/sos.cgi?0523//S269456

Region 31-Los Angeles Secures Settlement Agreement Requiring Star Garden to Reinstate and Bargain with Unlawfully Fired Dancers

May 18, 2023 Today, the NLRB’s Region 31-Los Angeles office conducted a ballot count for Dancers/Entertainers and DJs at 21st Century Valet Parking, LLC d/b/a Star Garden Enterprise (“Star Garden”), an adult entertainment venue in Los Angeles, California. The workers voted to be represented by Actors Equity Association 17-0. Star Garden must now begin bargaining in good faith with the union. On Tuesday, May 16, 2023, the Regional Director of Region 31 approved a settlement agreement between the parties resolving multiple unfair labor practice allegations, which were set for trial. Among other remedies obtained in the settlement, Star Garden agreed to take the following steps upon the anticipated granting of a motion to dismiss its bankruptcy proceedings: Reopen its business, and reinstate certain employees, placing others on a preferential hiring list; Pay backpay to employees; Immediately recognize the union and abide by a bargaining schedule with the union; And not refile for bankruptcy for one year (or Chapter 11 bankruptcy for 18 months). In addition, Star Garden agreed to post, distribute, and read a notice to employees about employee rights under the National Labor Relations Act and agreed to permit a Board agent to train its managers and supervisors about the National Labor Relations Act and unfair labor practices. “Workers have the right to take collective action for a safe and equitable work environment. I admire the dancers who had the courage to protest their unsafe working conditions,” said Region 31 Regional Director Mori Rubin. “I am also very pleased with the settlement and greatly appreciate the hard work of the Region 31 attorneys who investigated the case, handled bankruptcy matters, prepared for the trial, and pursued a settlement that would remedy the unfair labor practices.”

NLRB Division of Judges Releases 2023 Bench Book

May 12, 2023 Washington, D.C - The Judges Division of the National Labor Relations Board (NLRB) has issued an updated Bench Book, which replaces the last update issued in January 2022. The Bench Book serves as an NLRB trial manual and is designed to provide NLRB administrative law judges (ALJs) with a reference guide during hearings. It is also a useful tool for practitioners before the Board because it sets forth Board precedent and other rulings and authorities on certain recurring procedural and evidentiary issues that may arise during hearings. This year’s edition includes citations to numerous additional Board and court decisions. It also includes additional citations to helpful treatises on federal evidence and procedure that are available on either Westlaw or LEXIS. Finally, it includes several new sections, including a section on using special masters to address subpoena production disputes and a section on including non-disparagement and confidentiality provisions in settlement agreements. The 2023 edition was edited by ALJ Jeffrey Wedekind, who has served as editor since 2010, and ALJs Sharon Steckler and Mara-Louise Anzalone, as associate editors. It also includes a foreword by Chief ALJ Robert Giannasi describing the Bench Book’s history and purpose.

Daily eBriefs - May 1, 2023

Employment Triable issues of fact exist as to whether the ministerial exception applies to a discrimination claim by a Catholic school’s former art teacher and office administrator. Atkins v. St. Cecelia Catholic School - filed April 28, 2023, Second District, Div. Eight Cite as 2023 S.O.S. 1273 Full text click here >http://sos.metnews.com/sos.cgi?0523//B314220.

Board Returns to Traditional Standards for Evaluating Employee Misconduct During Protected Concerted Activity

Today, the National Labor Relations Board issued a decision in Lion Elastomers LLC II, overruling the prior Board’s decision in General Motors LLC 369 NLRB No. 127 (2020), and returning to the long-established “setting-specific” standards applicable to cases where employees are disciplined or discharged for misconduct that occurs during activity otherwise protected by the National Labor Relations Act. The General Motors Board had rejected those traditional standards, which focus on the severity of the employee’s misconduct and the context in which it took place. Instead, the prior Board adopted the Wright Line standard, which makes it easier for employers to sanction misconduct that takes place as part of protected activity. In overruling General Motors, the Board noted that labor disputes are often heated, as the Supreme Court has recognized. The Board reaffirmed the principle that employees must be given some leeway for their behavior while engaging in protected concerted activity, in order to safeguard their statutory rights. No federal court has ever rejected any of the three setting-specific standards. They are: (1) the Atlantic Steel test, which governs employees’ conduct towards management in the workplace; (2) the totality-of-the-circumstances test, which governs social media posts and most cases involving conversations among employees in the workplace; and (3) the Clear Pine Mouldings standard, which governs picket-line conduct. In its original decision, Lion Elastomers LLC, 369 NLRB No. 88 (2020), the Board had applied the Atlantic Steel test to find that the employer had violated the Act. After General Motors issued, the Board asked the United States Court of Appeals for the Fifth Circuit to remand the case so that the Board could determine the effect of its intervening decision. Today, consistent with its overruling of General Motors, the Board reaffirmed its original Decision and Order. “The General Motors decision broke sharply with judicially approved precedent and did not give adequate consideration to the importance of workers’ rights under the National Labor Relations Act,” said Chairman Lauren McFerran. “To fully protect employee rights, conduct during protected concerted activity must be evaluated in the context of that important activity—not as if it occurred in the ordinary workplace context.” Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan dissented.

Daily eBriefs - April 25, 2023

Civil Procedure An order denying a renewed motion, including a renewed motion to compel arbitration, is not appealable. A sister district’s decision in Western Bagel Co. v. Superior Court is not new law under Code of Civil Procedure §1008 that justifies a different decision on an employer’s renewed motion to compel arbitration of an employee’s claims under the Labor Code and California Private Attorneys General Act. Westmoreland v. Kindercare Education - filed April 24, 2023, First District, Div. Two Cite as 2023 S.O.S. 1653 Full text click here >http://sos.metnews.com/sos.cgi?0423//A164090.

Daily eBriefs - April 25, 2023

Civil Procedure An order denying a renewed motion, including a renewed motion to compel arbitration, is not appealable. A sister district’s decision in Western Bagel Co. v. Superior Court is not new law under Code of Civil Procedure §1008 that justifies a different decision on an employer’s renewed motion to compel arbitration of an employee’s claims under the Labor Code and California Private Attorneys General Act. Westmoreland v. Kindercare Education - filed April 24, 2023, First District, Div. Two Cite as 2023 S.O.S. 1653 Full text click here >http://sos.metnews.com/sos.cgi?0423//A164090.

Daily eBriefs - April 24, 2023

Contracts Even when there is a very high degree of procedural unconscionability in a contract, substantive unconscionability is still required to invalidate the contract. Basith v. Lithia Motors - filed April 21, 2023, Second District, Div. Eight Cite as 2023 S.O.S. 1626 Full text click here > http://sos.metnews.com/sos.cgi?0423//B316098.

Daily eBriefs - April 19, 2023

Allegations that an employer essentially spied on employees when they were not working did not depend on any terms of the employees’ contracts with the employer, so the allegations were not arbitrable pursuant to an agreement that required the arbitration of contract disputes. Jackson v. Amazon - filed April 19, 2023 Cite as 2023 S.O.S. 21-56107 Full text click here >http://sos.metnews.com/sos.cgi?0423//21-56107.

Unfair Labor Practices Charge Filings Up 16%, Union Petitions Remain Up in Fiscal Year 2023

April 07, 2023 During the first six months of Fiscal Year 2023 (October 1–March 31), unfair labor practice (ULP) charges filed across the NLRB’s 48 field offices have increased 16%—from 8,275 to 9,592. After a substantial increase last Fiscal Year, union representation petitions filed at the NLRB for the first six months of Fiscal Year 2023 continue to increase—up to 1,200 from 1,174. In total, 10,792 cases have been filed with the NLRB’s 48 field offices across the country, up 14% over the same period in Fiscal Year 2022. This increase in filings continues last year’s surge in NLRB caseload. In Fiscal Year 2022, 2,510 union representation petitions were filed—a 53% increase from the 1,638 petitions field in Fiscal Year 2021. This was the highest number of union representation petitions filed since Fiscal Year 2016. Unfair labor practice charges filed with NLRB Field Offices also increased 19% in Fiscal Year 2022, from 15,082 charges in Fiscal Year 2021 to 17,988 charges in Fiscal Year 2022. Accounting for both ULP and representation petitions, total case intake at the Field Offices increased 23% in Fiscal Year 2022—from 16,720 cases in Fiscal Year 2021 to 20,498 cases in Fiscal Year 2022. This increase of 3,778 cases is the largest single-year increase since Fiscal Year 1976 and the largest percentage increase since Fiscal Year 1959. If the pace continues, Fiscal Year 2023 would have the second-largest percentage increase in NLRB filings since Fiscal Year 1959. The increased case intake at Field Offices occurs as the Agency struggles with funding and staffing shortages. In December, Congress gave the NLRB a $25 million increase for Fiscal Year 2023, ending a hiring freeze, preventing furloughs, and allowing the NLRB to backfill some critical staff vacancies. However, the Agency remains understaffed after almost a decade of flat funding. In the past two decades, staffing in Field Offices has shrunk by 50%. “I’m proud of NLRB Field and Headquarters staff for processing cases with professionalism and care, even as our caseload increases,” said NLRB General Counsel Jennifer Abruzzo. “The President’s Budget requests $376 million, which is much needed by the NLRB to effectively and efficiently comply with our Congressional mandate when providing quality service to the public in conducting hearings and elections, investigating charges, settling and litigating meritorious cases, and obtaining full and prompt remedies for workers whose rights are violated.”

Daily eBriefs - April 3, 2023

Employment A devout Jehovah’s Witness who had a state job offer rescinded after she objected to California’s loyalty oath because she believed it would violate her religious beliefs alleged an injury that was redressable only through a claim for damages; the plaintiff could seek damages from the state agency on her claims under Title VII and California Fair Employment and Housing Act but not under 42 U.S.C. §1983, which does not provide a cause of action to sue state entities or state officials in their official capacities. Bolden-Hardage v. California State Controller - filed April 3, 2023 Cite as 2023 S.O.S. 21-15660 Full text click here >http://sos.metnews.com/sos.cgi?0423//21-15660.

Seventh Circuit Court of Appeals Imposes $192,000 in Penalties and Other Remedies Based on Contempt Finding

On March 10, 2023, the Seventh Circuit Court of Appeals issued an opinion finding that Neises Construction Corporation (“Neises”) of Crown Point, Indiana, it is required to bargain with the Indiana/Kentucky/Ohio Regional Council of Carpenters (“the Carpenters”) and pay $192,400 in fines, among other remedies, based on a finding of contempt of prior court orders. In 2018, the Seventh Circuit enforced a National Labor Relations Board decision ordering Neises to bargain in good faith with the Carpenters. Despite the order, Neises began what would become a years-long pattern of delay, legal maneuvering, and bad-faith negotiations with no sincere intent to reach agreement. Twice, in 2019 and 2020, Neises promised to bargain with the union to settle allegations that it was in violation of the Court’s order. Nearly as soon as the last settlement was reached in 2020, however, Neises took bargaining positions that were tantamount to retracting prior tentative agreements, including a provision that would bar the Union from taking any part in decision making about the hours and working conditions of its membership, as well as a grievance procedure that was essentially illusory. Accordingly, the Court adjudged Neises in contempt. The Court noted: “Parties must make reasonable efforts to comply with our orders, not engage in crafty feints designed to avoid court-imposed obligations. … Neises significantly violated our unambiguous command to bargain in good faith with the Union and failed to make reasonable and diligent efforts to comply with that command.” To remedy Nieses’s misconduct, the Court imposed $192,400 in contempt fines, awarded compensatory damages to the Union, awarded costs and attorney’s fees to the Board, extended the six-month decertification bar protecting the current Union as the exclusive bargaining representative, and ordered Neises to post a notice to its employees explaining the Court’s judgment and describing the steps it will take to remedy its misconduct, in addition to other remedies. “The Seventh Circuit’s decision in Neises sends a clear message to employers—when workers vote for union representation, an employer must bargain in good faith,” said General Counsel Jennifer Abruzzo. “The NLRB will not permit workers’ choices to be undermined and their voices to be silenced through bad faith bargaining by this or any other employer.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.

National Labor Relations Board Launches “Know Your Rights” Card Series

March 28, 2023 Today, National Labor Relations Board General Counsel Jennifer Abruzzo launched a “Know Your Rights” card series to educate workers on their rights under the National Labor Relations Act. The series is commencing with two new “Know Your Rights” tri-fold cards, which the Agency is making available in English and Spanish. One card provides information on protections for immigrant workers, while the other card talks about Weingarten rights. The cards are designed to be printed, folded, and used by workers in the workplace. Additional cards in the series will be rolled out this year. “This card series is one of many steps we’re taking to ensure that all workers know their workplace rights and understand that there is a federal agency, the NLRB, that they may seek help from if they feel that their rights have been violated,” said General Counsel Jennifer Abruzzo. “The cards will advance the NLRB’s efforts to remove barriers for workers in underserved communities through education, outreach, and processes so that all workers can safely access the NLRB.” Workers, labor organizations, employers, and others in the general public should feel free to call the NLRB’s Regional Offices (1-844-762-NLRB) to ask questions and receive assistance in filing an unfair labor practice charge in English and other languages. They may also make a request that an NLRB representative participate in an educational event through the NLRB’s Regional Offices or on the NLRB’s website. The NLRB also has many additional resources on workers’ rights and union/employer obligations on its website.

Daily eBriefs - March 27, 2023

An arbitration agreement requiring a worker to waive his right to invoke representative standing to recover penalties on a Private Attorneys General Act claim is invalid. A PAGA lawsuit can be split into arbitrable and non-arbitrable components, and it need not be treated as an indivisible unit for purposes of arbitration. Gregg v. Uber Technologies - filed March 24, 2023, Second District, Div. Four Cite as 2023 S.O.S. 1159 Full text click here >http://sos.metnews.com/sos.cgi?0323//B302925.

NLRB General Counsel Issues Memo with Guidance to Regions on Severance Agreements

Today, NLRB General Counsel Jennifer Abruzzo issued a memo to all Field Offices with guidance on the Board’s recent decision in McLaren Macomb, in which the Board returned to longstanding precedent holding that employers violate the National Labor Relations Act when they offer employees severance agreements that require employees to broadly waive their rights under the Act. The guidance will assist Regions in responding to inquiries from workers, employers, labor organizations, and the public about implications stemming from the case. The memo offers guidance on the decision’s scope and effect, such as the retroactive effect of the decision and the application of the decision to supervisors. The memo also provides guidance on the kinds of severance agreement provisions that could violate the Act if proffered, maintained, or enforced, including confidentiality, non-disclosure, and non-disparagement, among others. “Lawful severance agreements may continue to be proffered, maintained, and enforced if they do not have overly broad provisions that affect the rights of employees to engage with one another to improve their lot as employees” said General Counsel Abruzzo. “[However], the future rights of employees as well as the rights of the public may not be waived in a way that precludes future exercise of Section 7 rights, including engaging in protected concerted activities and accessing the Agency.” If workers believe their rights have been violated by the proffer, maintenance, or enforcement of unlawful severance agreements, or have questions, they can call the NLRB at 1-844-762-6572 and speak with an information officer. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

NLRB General Counsel Jennifer Abruzzo Issues Memo to Field Offices with Update on Submissions to Advice

Today, General Counsel Abruzzo sent a memo to all Regional Directors, Officers-in-Charge, and Resident Officers with an update to her August 2021 memo on her prosecutorial priorities. The new memo provides an updated list of mandatory submissions to the Division of Advice, as well as 46 issue areas that no longer need to be submitted because Regional Offices are diligently utilizing Advice guidance including, where appropriate, filing exceptions to place these issues before the Board. While 17 cases raising many of these issues are currently pending before the Board, Regional Offices are advised to continue to present them to ALJs and the Board at every opportunity. Following tradition, General Counsel Abruzzo released GC 21-04, Mandatory Submissions to Advice, as her first memo, which identified Board decisions that she believed were contrary to the Agency’s Congressional mandate, as they improperly compromised the statutory rights of workers that the NLRB is required to protect. Many of these decisions overruled prior precedent that had already struck an appropriate balance between the rights of workers and the obligations of unions and employers. “By including these issues on the mandatory submission list, my goal was to provide transparency to the public,” said General Counsel Abruzzo. “Additionally, placing these issues before the Board for reconsideration is one of my most important objectives as General Counsel. Without doing so, Board law that undermines workers’ statutory rights remains unchallenged, which will continue to detrimentally impact millions of employees throughout the country.” Since the issuance of the August 2021 memo, the Division of Advice has issued guidance, either in the form of Significant Advice Memoranda or inserts to be used in briefs to Administrative Law Judges and/or the Board, for 46 Board decisions identified in the initial mandatory submission memo and in later General Counsel memos. Regional Offices have processed hundreds of cases involving these issues and have been ensuring that all guidance is properly followed, including, where appropriate, filing exceptions to place these issues before the Board. The Board has addressed these issues in a few cases and seventeen cases raising many these issues are currently pending before them. Because of the developments in these issue areas, Regional Offices will now be required to submit only 15 of these original issues for guidance—in addition to the other types of cases traditionally submitted to Advice, mandatory Injunction Litigation Branch submissions, and cases involving electronic surveillance or algorithmic management that interferes with the exercise of Section 7 of the National Labor Relations Act. The memo notes that it does not contain an exhaustive list of issues and that other questions may arise, particularly with respect to the application and interpretation of new Board decisions. It advises Regional Offices to continue to seek guidance from the Division of Advice, as appropriate, to ensure an approach which properly applies the law to maximize protection and enforcement of employee rights under the Act.