Cases & Developments

Decision and Order Remanding.  The Charging Party in this case resigned her employment at the American Federation for Children, Inc. after an investigation found she created a “toxic atmosphere” by characterizing a new supervisor as a racist.  At the time, the organization was sponsoring a former employee whose immigration status had changed for a work permit and holding her former position open to rehire her.  The Charging Party had advocated for the rehire, but the new supervisor sought to fill the position with a different candidate.  The Administrative Law Judge, applying Amnesty International (N.L.R.B. 2019), found that because it was on behalf of someone who was not a current employee, the Charging Party’s activity was not for “mutual aid or protection” and not protected.  In reversing, the NLRB overruled Amnesty International and returned to its prior precedent, which held that concerted activity on behalf of non-employees is protected when its goal also serves the benefit employees.   

Decision and Order adopting a totality of the circumstances standard for determining concerted activity.  In March 2020, an employee of Miller Plastics Products, Inc. challenged his supervisor’s assertion that his employer was an essential, life-sustaining business and, days later, questioned the employer’s return-to-work procedures after another employee returned to the workplace two days after a suspected COVID exposure.  Shortly thereafter, his employer terminated him for poor performance and policy violations.  In affirming an Administrative Law Judge’s finding that the employee’s activity was both concerted and protected, the National Labor Relations Board overruled its decision in Alstate Maintenance, LLC (2019) and returned the standard in Meyers II (1986), which held that “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.”  In so doing, it held that “activity that at inception involves only a speaker and a listener can be concerted, ‘for such activity in an indispensable preliminary step to employee self-organization.’”  Here, it held that the employee’s complaints were also protected because they sought to bring group complaints to the attention of management.  

National Labor Relations Board Direct Final Rule on Representation-Case Procedures.  The direct final rule modifies the procedures by which the Board will administer cases concerning questions of representation.  “This rule substantially rescinds the amendments by a rule of the Board promulgated in 2019 … and thereby substantially returns the representation case procedures to those that existed following the Board’s promulgation of a rule concerning representation case procedures in 2014.”  In particular, the new rule will shorten the length of time required between an employee petition and an election to resolve a question of representation.  The new rule is effective December 26, 2023. 

Decision and Order from the National Labor Relations Board (NLRB) adopting a new standard for evaluating when workplace rules and policies may be unfair labor practices.  In its decision, the NLRB adopted a standard that holds that “overbroad workplace rules and policies may chill employees in the exercise of their Section 7 rights” under the National Labor Relations Act.  In evaluating specific employer rules or policies, the Board will “interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer.”  If the General Counsel can show that a rule would chill such an employee from exercising Section 7 rights, it is presumptively unlawful.  However, “the employer may rebut that 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.” 

National Labor Relations Board Decision and Direction of Election.  Petitioners, the Southern Region Workers United, affiliated with the Service Employees International Union (SEIU), sought to represent a unit of all Ph.D. students at Duke University at its Durham and Beaufort, N.C. campuses who are working toward Ph.D. degrees and who are employed to teach undergraduate or graduate courses or labs or to provide research services.  The N.L.R.B. Regional Director for Region 10 found that Ph.D. students in the proposed unit are employees within the meaning of Section 2(3) of the National Labor Relations Act.  The Regional Director further directed that since the election is to be conducted during the summer it should be a mail ballot election.