Hunton Employment & Labor Perspectives

On June 1, 2021, the U.S. Court of Appeals for the D.C. Circuit overturned a NLRB determination that a manager’s incorrect blaming of a union for discrepancies in an employee’s paid-leave time constituted an unfair labor practice. The pivotal issue was whether the manager’s statements had a reasonable tendency to interfere with employees’ labor rights. As discussed below, the D.C. Circuit rejected the NLRB’s determination that the manager’s statements had a reasonable tendency to interfere with employees’ labor rights, reasoning that the manager’s misstatements were lawful expressions of the employer’s opinions.

In Dover Energy, Inc., Blackmer Division v. National Labor Relations Board, the Board held that Blackmer violated section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it threatened Tom Kaanta, a Blackmer employee and United Auto Workers Union shop steward, with disciplinary action if he continued to make “frivolous” information requests to the company’s lead negotiator during collective bargaining agreement (“CBA”) negotiations. On March 22, 2016, the U.S. Court of Appeals for the D.C. Circuit reversed and held that the NLRB’s factual findings were not supported by substantial evidence.

Pundits in the labor arena have speculated for months that the Administration’s recent appointment of union-friendly Board candidates like former SEIU Assistant General Counsel Craig Becker could have a significant impact on the state of Board precedent in future cases.  If the Board’s highly anticipated recent decision in United Brotherhood of Carpenters and Joiners of America, 355 NLRB No. 159 (“UBC”), is any indication, the pundits may be right.

On December 24, 2009, the National Labor Relations Board ("NLRB") issued a revised version of its Case Handling Manual (Part One).  For those inside the NLRB, the Manual provides guidance on various internal policies and procedures for enforcement proceedings.  For those outside the NLRB, the Manual not only states how the agency is likely to deal with issues that arise during such proceedings, but also provides insight into the agency’s enforcement priorities.  Part One (the part recently revised) covers unfair labor practice (“ULP”) charges, but also includes sections that apply to representation elections and compliance proceedings as well.