Quarterly NLRB Reports

Each quarterly report provides a comprehensive update of law and policy developments at the National Labor Relations Board, including significant decisions issued by the Board, cases to watch, Office of General Counsel initiatives, and rulemakings. These reports also feature analyses and insight on specific issues and topics from a rotation of subject matter experts.

Q1 2024
The Appellate Courts Strike Back

The Board’s ambitious policymaking agenda ran headlong into the firewall of the appellate courts. In the span of a few months, the Board saw an increasing number of its decisions overturned in federal court, and received strongly-worded criticisms from federal judges regarding the Board’s decision-making in the process.  Meanwhile, the Board’s controversial joint employer rule has similarly fizzled out in federal court while also facing opposition in Congress.

Q4 2023
Throw Out Your Employee Handbooks

HRPA details the Board’s broadside against employee handbooks, covers significant Board decisions, General Counsel initiatives, and more. Read it to stay on top of the more pressing NLRB developments. Meanwhile, HRPA filed amicus briefs in two cases targeting key labor law policy issues. The first targets the Board’s ability to force an employer to reinstate workers before the case is litigated and the second challenges forced union recognition by card check.

Q3 2023
A Precedent Erasing Bonanza

The Board continued its breakneck pace of erasing federal labor law precedent, including perhaps the most consequential batch of new decisions adverse to employers to date. In one decision, the Board upended decades of precedent and effectively codified union card check recognition in practice – perhaps the most radical departure from traditional federal labor law in recent memory. Eight of the ten Board decisions featured in this report involved changes in precedent, by far the most in any NLRB Report to date. Collectively, those eight decisions alone erased over 80 years of federal labor law precedent. The Board also issued new union election procedural rules that streamline the process for unions to obtain election dates and reduce the amount of time and the number of avenues employers have to counter a union’s campaign. In the span of a few short months, the labor relations legal landscape has been turned completely on its head with potentially severe consequences for employers.

Q2 2023
Employer Voice at Risk

The Board issued an unusually small number of decisions this quarter, particularly given the continued backlog of cases, including several pending cases that could drastically rewrite federal labor law. The Board moves at a snail’s pace in issuing significant decisions despite its announced intention to rewrite several decades of NLRB precedent. Two decisions on significant labor law policy matters were issued – independent contractor status and discipline of offensive speech in the workplace – and rewrote precedent in the process. Moreover, General Counsel Abruzzo extended her pro-labor, anti-employer crusade to a new front – non-compete agreements. Even in an unusually “light” quarter, the current Board continues to provide headaches for employers. 

Q1 2023
The NLRB Goes to Washington

The Board engaged in a long-expected series of precedent-erasing decision-making, including radically expanding traditional remedies for unfair labor practices and returning to rubber-stamping union petitioned-for units. While the first quarter of 2023 did not feature the same level of significant decisions, the Board did continue its precedent-reversal campaign with a decision that considerably restricts the lawful scope of severance agreements, both existing and future.

Q4 2022
The Avalanche Begins

The Board issued long-awaited decisions in two of five cases which each involve significant areas of federal labor law. In one decision, the Board radically expanded traditional remedies for unfair labor practices, potentially putting employers on the hook for new monetary damages. In another, the Board reverted to an Obama-era standard for determining bargaining size appropriateness, once again opening the door for micro units and fractured workplaces. A review shows continued strict scrutiny of employer conduct in general, creating an especially inhospitable legal environment. Also issued was another proposed rule that would once again allow unions to block decertification votes from proceeding through unfair labor practice charge, and eliminate certain requirements for voluntarily recognized unions and bar challenges to such unions for up to a year. General Counsel Abruzzo continued her aggressive pursuit of radical changes to federal labor law, urging the Board to adopt a new framework under which employer uses of technology in the workplace are presumptively unlawful if they could potentially in any way infringe upon an employee’s protected concerted activity. Abruzzo’s framework would also impose notice requirements on employers related to such uses of technology. Abruzzo also urged the Board to require employers to allow employees to use employer communication platforms for nonwork purposes, including union activity. 

Q3 2022
The Beginning of the End

The Democratic Board has been characterized by a surge in public interest in unions, union petitions, and unfair labor practice complaints, bold rhetoric and policy advocacy from the Board’s General Counsel who is seeking wholesale change to federal labor law. Very few significant policy and precedent changing decisions have been seen from the Board itself. The Board issued what could be considered its first significant, precedent changing decision, ruling that any employer uniform policies that in any way restrict employees from wearing union insignia are presumptively unlawful. Less than a week later, the Board issued a proposed rule that would drastically increase joint employer liability. Further, it is likely that the Board will issue decisions by the end of the year in five pending cases in which it invited amicus briefs earlier this year, each with the potential to significantly upend federal labor law. Beyond these five cases, several more are pending in which the General Counsel has argued for the Board to adopt radical changes to federal labor law, including card check elections and prohibitions on employer speech.

Q2 2022
The General Counsel on the March

Under previous Board precedent, Board officials could suspend employee efforts to rescind their union representation on the basis of pending unfair labor practice charges against the employer, until all such charges were fully resolved. As a result, unions faced with a decertification campaign would often file numerous unfair labor practice charges against the employer to prevent employees from voting them out. In 2020, the Trump Board issued a rule under which such votes could still move forward despite pending unfair labor practice charges—Board officials would instead impound vote results until such charges were resolved.

Q1 2022
Standing on the Precipice of Major Policy Change

The Board, with a newly minted Democratic majority, wasted no time in laying the groundwork for significant and comprehensive labor law and policy change. The decisions issued since the beginning of the year, though offering few significant changes by themselves, serve as markers of how the Board may view important labor law issues, including mandatory subjects of bargaining, bargaining units, employer communications during union campaigns, and mail ballot elections. Most importantly, the Board signaled a potential massive sea change of law and policy soon to come through invitations for amicus briefs in five different cases involving critical and wide-encompassing issues, such as independent contractor status, employer workplace rules and policies, and bargaining unit size appropriateness.