Management Memo

After a flurry of pro-employee National Labor Relations Board (“NLRB”) decisions, the Fifth Circuit gave employers a glimmer of hope, rejecting the Board’s recent rule issued in Tesla, Inc., 371 NLRB No. 131 (2022) that effectively put every employer’s appearance, dress code and uniform policy in jeopardy of violating Board law if it could be read to limit employees’ ability to wear union apparel or insignia in any way unless the employer is able to meet the high burden of demonstrating that “special circumstances” existed to justify the policy.

The Tesla, Inc ...

Shocking few NLRB observers, the National Labor Relations Board (NLRB), in The Atlanta Opera, Inc., Case 10-RC-276292, a 3-1 decision issued June 13, 2023, announced its modified standard for analyzing whether  workers are employees or independent contractors of an employer, returning to the test last articulated by the Obama era Board in FedEx II, 362 NLRB 610 (2014), and overruling the Trump era SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019). The new standard is likely to result in findings that more workers unions are seeking to organize and represent are employees and not independent contractors which they would have been found to be under SuperShuttle.

On January 17, 2023, the U.S. Court of Appeals for the D.C. Circuit partially reversed and partially upheld a District Court decision that enjoined five rules promulgated by the National Labor Relations Board (“NLRB” or “Board”) in 2019 by the Trump-era Board (“2019 Rule”) to modify the Board’s representation election procedures.  The 2019 Rule attempted to ease some of the “quickie election” rules established in 2014 by the Obama-era Board (“2014 Rule”).  For a further discussion of the 2019 Rule, see “NLRB Issues Proposed Rule to Scale Back 2014 Expedited Election Rules.”

The D.C. Circuit held that because the Trump-era Board did not seek public notice and comment as required under the Administrative Procedure Act (“APA”) when issuing the 2019 Rule, “substantive” rule changes could not take effect, but “procedural” rule changes were valid under the procedural exception to the APA’s requirement for notice and comment.