Key Points Direct evidence of a plan to engage in repeated strikes to achieve a common goal establishes that such strikes are unprotected, intermittent strikes. Only in the absence of direct evidence will the Board consider extenuating circumstances to evaluate whether multiple strikes constitute protected activity. On July 25, 2019, a majority of the NLRB (Board) decided in Walmart Stores, Inc, and The Organization United for Respect at Walmart (Our Walmart), that direct evidence…

In a notice of proposed rulemaking and request for comments published on August 12, 2019, the NLRB exercised its discretionary rulemaking authority to propose changes to three discretionary election bar policies: The blocking charge policy, The voluntary election bar policy, and For the construction industry only, the contract bar policy. These policies currently bar, for a period of time, the filing or processing of representation election petitions by employers, employees, or rival unions to challenge…

Memorandum 19-05, issued by the NLRB Division of Operations Management of the Office of the General Counsel in March 2019, gives Regional Directors a new tool to expedite cases when a charged party fails to cooperate with an unfair labor practice (ULP) investigation. Instead of relying on investigative subpoenas to acquire additional information, Regional Directors may issue complaints based on “evidence available.”  The new authorization is designed to reduce case processing time consistent with…

On April 2, 2019, in a 3-1 decision split along party lines, the Trump administration’s National Labor Relations Board (Board) appointees significantly narrowed the circumstances under which a successor employer will be construed as a perfectly clear successor and forced to forfeit its right to set initial employment terms. The decision, Ridgewood Health Care Center Inc., and Ridgewood Health Services, Inc., overrules precedent which had established that a successor employer which uses discriminatory hiring…

Unions commonly utilize clarification petitions to invoke accretion principles and try to bypass election procedures. However, the National Labor Relations Board’s recent decision in Recology Hay Road and Teamsters Local 315 illustrates how employers can avoid employee accretion into existing bargaining units by emphasizing the lack of interchange between bargaining unit employees and the non-bargaining unit employees at issue. Interchange occurs when employees alternate or transfer between positions.…

Although the National Labor Relations Act was initially established to assist unions in organizing employees, its scope is much broader as it also protects employees’ rights to engage in “protected concerted activity.” The NLRB’s interpretation of what constitutes protected concerted activity has fluctuated over the years and, in particular, under the Obama administration it expanded significantly beyond its original scope.  In the Board’s recent decision of Alstate Maintenance, LLC the Board acknowledged a need to…