Hunton Employment & Labor Perspectives

In an historic development for the financial services industry, a group of employees at a Wells Fargo branch bank in Albuquerque, New Mexico voted this week to join Wells Fargo Workers United, a grassroots labor union backed by the Communications Workers of America.  The successful vote marks the first time in memory that employees at a major U.S. bank have elected to unionize.  Workers at Wells Fargo branches in California and Florida have also filed for union elections in the past month alone. 

National Labor Relations Board General Counsel Jennifer Abruzzo recently asked the National Labor Relations Board (“Board”) to overrule its decision in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019) (“Rio All-Suites”). The Rio All-Suites Board overruled the Board’s prior decision in Purple Communications, Inc., 361 NLRB 1050 (2014) (“Purple Communications”), which in turn overruled the Board’s decision in Register Guard, 351 NLRB 1110 (2007). All three cases deal with whether the National Labor Relations Act (“Act”) gives employees the right to use an employer’s email systems to engage in union and other protected concerted activities.

On June 24, 2022, the NLRB sought an order forcing an employer who refused to negotiate with a certified union to pay back wages and benefits to employees that they allegedly could have earned absent the delay in bargaining during the time the employer appealed the NLRB’s certification of the union as the exclusive bargaining representative in federal court. In Pathway Vet Alliance, LLC, the General Counsel for the NLRB made the common allegation that the employer violated 8(a)(5) and (1) of the NLRA by refusing to recognize and bargain with a disputed but  certified union representative of its employees. What is noteworthy about this case is that Counsel for the General Counsel’s Motion for Summary Judgment urged the NLRB to “use this case as a vehicle to overrule its decision in Ex-Cell-O Corp.” and order the employer to “make the bargaining-unit employees whole for the lost opportunity to engage in collective bargaining.”

On April 11, 2022, the National Labor Relations Board’s General Counsel urged the Board to revive the long-abandoned Joy Silk doctrine, which has not been in effect in nearly 50 fifty years.

The National Labor Relations Board (“NLRB” or “Board”) recently indicated an openness to revisiting the independent contractor standard employed by the Board when assessing whether individuals are covered under the National Labor Relations Act (“Act”).

The National Labor Relations Board indicated in January that it may reconsider its legal standard for assessing whether employer work rules violate the National Labor Relations Act, and invited amicus briefs on the subject.  Several business groups, including the Chamber of Commerce of the United States of America, filed briefs on March 8, 2022 urging the Board to maintain its existing standard under The Boeing Co., 365 NLRB No. 154 (2017).

Scabby the Rat is a familiar sight in disputes between unions and employers. Scabby, a giant inflatable rat with red eyes, fangs, and claws, is often placed outside the places of business of employers with whom a union has a labor dispute (the “primary” employer).  Recently, the NLRB again addressed the issue of whether such union protests can be directed against a “secondary” neutral employer who does business with the primary employer but who is not party to the underlying labor dispute.

With the ushering in of a new administration, several changes have quickly taken place at the National Labor Relations Board (NLRB).

Within hours of taking office, the Biden administration removed Trump appointee NLRB General Counsel Peter Robb and replaced him with interim General Counsel Peter Ohr.  (Ohr may only serve as acting General Counsel for 40 days, per the National Labor Relations Act, unless the administration submits a nomination to the Senate.)  At least one employer has already sought the dismissal of an unfair labor practice charge arguing that Ohr lacks authority to prosecute the case because Robb was unlawfully removed prior to the expiration of his term.

On September 20, 2019, the NLRB issued a notice of proposed rulemaking to exclude undergraduate and graduate students who perform paid work for private colleges and universities in connection with their studies from the definition of employee under the National Labor Relations Act.  The proposed rule would prevent undergraduate and graduate teaching assistants from unionizing or collectively organizing.

The National Labor Relations Board has issued the first part of its planned series of revisions to labor union election procedures.  The revisions arrive five years after the Obama-era Board’s controversial 2014 changes that created the so-called “ambush election” procedures.

On August 12, a three-member majority, over a one-member dissent, issued a 113-page proposed rule that would modify three of the Board’s election processes: (1) its handling of “blocking charges,” (2) the restriction on elections after an employer’s voluntary recognition of a union, and (3) the standard for contractually-negotiated recognition of a union in the construction industry.