The National Labor Relations Board (“Board”) isn’t giving up on pandemic related mail ballots in representation elections any time soon. On September 29, 2022, in a decision concerning an election at a Seattle area Starbucks, the Board passed on an opportunity to cast aside its COVID-Era six-factor test articulated in Aspirus Keweenaw, 370 NLRB No. 45 (2020), which has been used for the past two years to determine if a Board-conducted representation election should be conducted by mail or in person (called a “manual” election in Board parlance). Instead of jettisoning the Aspirus test entirely, the Board replaced just one of the tests factors, now relying on the CDC Community Level Tracker rather than test positivity trends or rates in this analysis.

Continue Reading NLRB Offers New Guidance on When It Will Hold an In-Person Election – Replaces Positivity Metric with CDC Tracker

On August 29, 2022, the National Labor Relations Board (“NLRB” or the “Board”) issued a decision in Tesla, Inc. regarding dress code policies that further the Biden Board’s efforts to remake NLRB policy. This decision has big implications for employers that maintain appearance, dress code, and uniform policies. The Board’s decision now firmly establishes that any employer’s uniform or dress code policy is inherently unlawful if it can be read “in any way” to prohibit employees from wearing union insignia unless an employer can prove that its policy is justified by special circumstances. It is irrelevant whether the employer’s policy has ever been applied to prohibit union t-shirts or the employer actively permits union buttons or other insignia. Further, and critical to a broader understanding of the implications of this decision, it is also irrelevant whether the workplace is unionized or even being actively unionized.

Continue Reading Tesla Gets a Dressing Down by the NLRB

Last week, as widely reported, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) to Protect Workers from the COVID-19 (see full details in our Insight). Currently the subject of much pending litigation including a Temporary Restraining Order (TRO) and thus, for the time