Hunton Employment & Labor Perspectives

Late last week, the National Labor Relations Board (“Board” or “NLRB”) issued a decision in Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024), which overruled the nearly 40-year-old decision in Tri-Cast, Inc., 274 NLRB 377 (1985).

On May 31, 2024, the United States Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) partially overturned a decision issued by the National Labor Relations Board (the “Board”) in Absolute Healthcare d/b/a Curaleaf Arizona v. National Labor Relations Board.

On January 31, 2024, an Administrative Law Judge (“ALJ”) for the National Labor Relations Board (the “NLRB” or the “Board”) found that Starbucks Corporation (“Starbucks”) violated federal labor law when certain of its managers asked employees whether they would be working their scheduled shifts or otherwise wanted to be scheduled for shifts during a planned strike that was communicated to management. Employers should take notice of the roadmap this decision provides to avoid similar pitfalls.

Please join Hunton Andrews Kurth LLP for a complimentary webinar:

Union Organizing and the Potential for Disruption to the Financial Industry

Monday, December 18, 2023
11:00 am–12:00 pm ET
10:00–11:00 am CT
8:00–9:00 am PT

This fall, the National Labor Relations Board (NLRB) published its case processing data for Fiscal Year 2023 (FY2023) – revealing a significant uptick in Unfair Labor Practice (ULP) Charge filings and union petitions since FY2022. Specifically, the NLRB saw a 10% increase in ULP Charges filed since FY2022. This year over year increase is significant, as there was a 19% increase in ULP Charges in FY2022 itself. The agency received just 15,082 ULP Charges in FY2021 while in FY2023, employees filed nearly 20,000 ULP Charges. This surge in ULP Charges during the last few years illustrates the increased scrutiny on employers’ compliance with the National Labor Relations Act (NLRA).

The Court of Appeals for the D.C. Circuit has recently revived a portion of an election rule promulgated by the NLRB during the Trump administration.  In 2019, the NLRB promulgated an election rule which modified several “quickie” election procedures established by the NLRB during the Obama administration in 2014.  The 2014 Rule sped up the union election timeframe, and the 2019 Rule aimed to address criticisms that the timeframe was too short a time in which to meet the various new obligations triggered by the filing of a union representation petition while also adequately preparing for the representation hearing. The AFL-CIO sued in 2020 to block the 2019 Rule.

On December 16, 2022, a National Labor Relations Board (Board) majority (Members Kaplan and Ring) issued a Decision and Order holding that an employer’s conduct did not warrant setting aside a union election where the employer failed to strictly adhere to regulations requiring employers to provide unions a voter list comprised of employee names and contact information (commonly known as an Excelsior list).

On November 4, 2022, the NLRB published a Notice of Proposed Rulemaking (“NPRM”) inviting public comment on a proposal that would rescind and replace the current “Fair Choice and Employee Voice” rule which was adopted by the prior Board-majority on April 1, 2020.  Three distinct policies regarding election-blocking charges, voluntary recognition, and construction industry bargaining relationships are under consideration.  The Board’s stated intent is to return the law in each of these three areas to that which existed prior to the April 1, 2020 rule. 

Yesterday, a California State Assembly Committee killed a bill that would have extended collective bargaining rights to a larger group of state employees – namely, legislative staffers. Existing state law excludes certain state employees from collective bargaining. The Legislature Employer-Employee Relations Act would “provide employees of the Legislature the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.” If passed, the bill would extend collective bargaining rights to nearly 2,000 California legislative employees. California’s Public Employment and Retirement Committee rejected the bill in a 2-3 vote this Wednesday, due to unresolved “procedural, legal, and administrative problems,” according to the Committee Chair.