National Labor Relations Board Research Articles

Appeals Court Admonition of NLRB Highlights Risks to Employers

In the recent case of Stern Produce Co. v. NLRB, Case No. 23‐1100 (2024), the U.S. Court of Appeals for the District of Columbia has highlighted just how far the National Labor Relations Board (NLRB) will go to reach certain conclusions and has underscored the ongoing risks to employers that appear before the agency.

A new labor movement? Assessing the worker upsurge in the contemporary U.S.

ABSTRACT This article explores the labor upsurge of the early 2020s and places it in an historical context. In the early 2020s, workers across the U.S. protested, organized, and walked out, part of an upsurge that produced remarkable results. There were union victories at some of the country’s best-known corporations, including Starbucks, Amazon, Google, Apple, and Trader Joe’s. Between 2021 and 2023, more than 360 Starbucks stores unionized, most through independent worker action. Over 8,000 workers also organized an Amazon warehouse in Staten Island, doing so with a grassroots union and a budget of just $120,000. Across the country, the number of strikes surged, petitions for National Labor Relations Board (NLRB) elections rose sharply, and union density increased for the first time in decades. Opinion polls also showed record levels of public support for unions. Rather than seeing the upsurge as new – as media accounts stressed – the article links it to longer-term trends, particularly many decades of bargaining givebacks, increasing income inequality, and long-term union decline. Across the U.S., workers reached their breaking point, and hit back. Short-term conditions – particularly the labor shortage produced by the pandemic – were important, but the upsurge also reflected longer-term grievances that built up over decades.

From Labor Sit-Downs to Civil Rights Sit-Ins: A Genealogy of Liberal Civil Disobedience

Abstract Liberal views of civil disobedience that emerged in the 1960s and ’70s can only be properly interpreted with recourse to the complicated history of the early civil rights movement's selective appropriation of the labor sit-downs of the 1930s. This essay addresses the messy but basically successful effort by civil rights sit-inners and the lawyers who defended them to circumvent the repressive state and legal response—especially the US Supreme Court ruling in National Labor Relations Board v. Fansteel Metallurgical Corporation (1939)—that the 1930s sit-downers garnered. My reexamination of the sit-ins places influential liberal ideas about civil disobedience in a fresh light. In his influential theory of civil disobedience, John Rawls mirrored key features of the politically and legally savvy strategy of delinking the lunch counter sit-ins from the workplace sit-downs. The result was a somewhat restrictive view of civil disobedience that sidelined matters of economic justice.

NLRB's decision about Dartmouth could impact other student‐athletes

The National Labor Relations Board recently concluded that the members of the Dartmouth University men's basketball team are considered to be employees of the university for the purposes of federal labor law. That conclusion was based on the members of the team performing “work,” that the university “controlled the work,” and that the work was done in exchange for “compensation.” As a result of that decision, the NLRB determined that the team members are eligible to vote in an election to decide if they want a union to represent them. If the majority of the team votes in favor of union representation, the union could then negotiate with the university on all terms and conditions of employment, including compensation and benefits.

Exploring How House Staff Unions Impact the Program Director-Resident Educational Alliance.

In 1999, the National Labor Relations Board determined that residents function as employees, thereby allowing them to freely unionize. From 2020 to 2023, house staff (i.e., resident physicians and fellows) unions have significantly increased, and 8 physician training centers, representing nearly 4,000 house staff, have unionized since March 2021. While unions provide residents with an important tool in effecting change in their workplace, their introduction into the educational milieu has the potential to alter the program director (PD)-resident relationship. In this article, the authors use the educational alliance framework to detail 3 factors required to support a quality educational relationship between a resident and their PD. They also elaborate on how the introduction of unions may impact the PD-resident relationship and explore the potential unintended consequences of unionization as it pertains to this relationship. The authors then use 2 social psychology theories, naïve realism and motivated reasoning, to describe common framing dynamics that lead to conflict during collective bargaining processes. They conclude by offering strategies that PDs may use to mitigate tensions that arise in contract negotiations, even without a direct seat at the table. Ultimately, PDs should anticipate continued growth of resident unions and prepare themselves and their programs for the tensions that may arise from this action. The PD role as a neutral third party ought to be preserved, which is possible if all parties set reasonable expectations for the changes in the PD's role and responsibilities under a union. PDs should understand the 3 core aspects of the educational alliance and the importance of establishing credibility with their residents early on to build a strong foundation.

Quickie Election Rules in Effect

The General Counsel for the National Labor Relations Board (NLRB) recently issued a memorandum outlining the details of the labor board's new “quickie election” rules, NLRB Memorandum GC 24‐02, Guidance Memorandum on 2023 Updated Representation Case Procedures (December 8, 2023). Employers who had failed to appreciate the need for pre‐petition union avoidance strategies now have more reason to appreciate their value.

Recent Positive Legal Developments at the National Labor Relations Board

Recent Positive Legal Developments at the National Labor Relations Board

The Effect of Right-to-Work on Unfair Labor Practice Charges: Synthetic Control Evidence From Indiana and Michigan

This study investigates the effect of adopting right-to-work on unfair labor practice charges filed at the National Labor Relations Board. Most charges accompany union elections, which are expected to decrease under right-to-work. However, this work's synthetic control method results show that unfair labor practice trends in rates and success are generally unaffected by right-to-work adoption. Underlying these stable rates of filing and success is a more resource-intensive strategy where federations collaborate on charges with their constituent members. Using the cases of Michigan and Indiana, which both adopted right-to-work in 2012 and a unique dataset of all charges filed from 2000 to 2019, I show that legal mobilization is one union activity that adjusts under right-to-work as unions and federations look to protect workers.

NLRB Regional Office Engaged in “Gross Mismanagement” of Election

When it comes to maintaining union‐free status, there is no singular element that is more important than the sanctity of the secret ballot. All the efforts by both union and management representatives boil down to a simple mark and whether it will be placed in the “Yes” or “No” box. The agency entrusted by Congress to oversee that process is the National Labor Relations Board (NLRB). If that agency fails to act in a manner with the trust afforded to it, the entire process is subject to scrutiny and suspicion. It is, therefore, monumental that NLRB's Office of the Inspector General (OIG) recently found that a regional office's handling of a recent election amounted to “gross mismanagement.”

Recognition Without Election: Urgent Update for Union‐free Employers

For decades, the start of the election process followed a routine sequence of events. An employer receives a visit, phone call, letter, or e‐mail from a random union declaring that it represents a majority of the employer's workers and is demanding recognition. Employers generally reject the assertion or fail to respond at all. A few days later, an election petition appears from the National Labor Relations Board (NLRB). From there, the formal process of an NLRB‐supervised election unfolds. Until now.

미국 노동분쟁의 ADR 절차와 시사점

In South Korea, specific work procedures have not been established to activate the alternative dispute resolution before and after labor disputes in the relief procedure. In particular, there is no special law that can uniformly and consistently apply the alternative solutions to labor disputes, and the subjects, procedures, and contents of the application are scattered in the Trade Union and Labor Relations Adjustment Act or the Labor Relations Commission Act. Nevertheless, the Labor Relations Commission actively participates from the collective bargaining stage, or the local labor commission leads the cooperation from the local governments to deploy the experts of alternative dispute resolution from the community. Therefore, in order for South Korea to actively introduce and revitalize the methods of alternative dispute resolution in labor cases, it is firstly necessary to establish the legal bases, procedures, and contents for the alternative dispute resolution.
 Therefore, this paper aims to derive implications after examining the ADR procedure in the case of unfair labor practices and employment discrimination in the United States. Firstly, the ADR procedure in the United States provides the legal basis in accordance with the Administrative Dispute Resolution Act of 1996, a federal law. Specifically, the ADR procedures and contents of unfair labor practices and employment discrimination cases can be found through the Federal Code of Regulations. Secondly, the agency conducts the ADR procedures according to the work in charge of each agency. In other words, it means that the division of labor by agency is possible depending on the task in charge. Thirdly, the timing of the commencement for the ADR procedure is possible even before applications for unfair labor practices and employment discrimination relief are received. In other words, the ADR procedure may proceed at any stage before and after the issuing for relief. Fourthly, the ADR procedures are based on spontaneity, neutrality, confidentiality, and enforceability. Therefore, either party may withdraw the ADR at any time, and is left at the sole discretion of the party, without incurring any charges or expenses. Fifthly, the National Labor Relations Board has signed the agreement with the Equal Employment Opportunity Commission to provide mediators, while the Equal Employment Opportunity Commission uses not only internal mediators but also external contract mediators. Sixthly, the Employment Equality Opportunity Commission enters into the universal mediation agreement with employers. In other words, the Employment Equality Opportunity Commission encourages employers to enter into the universal mediation agreement to utilize the mediation at the regional, local, or national level. Seventhly, the National Labor Relations Board's ADR reconciliation and withdrawal rate and the Equal Employment Opportunity Commission's adjustment resolution rate exceed 70%, so its effectiveness is excellent.

Court Injunctions Plague Union‐Free Efforts

The recent case of National Labor Relations Board v. HSA Cleaning, Inc., Civil Action No. 23‐2994 (D.N.J. July 6, 2023), demonstrates how legal compliance during union campaigns is an inexact science. In HSA, it was alleged that in March 2022, the cleaning contractor's employee, Luis Varela, spoke as a representative of coworkers to voice management concerns about, among other things, mistreatment by management and threats of termination. A few months later, union representatives met with Varela and others in an organizing effort. Thereafter, Varela became more involved in organizing activities, including discussion about circulating a petition to gather employee support for union representation.

Prepare for potential impact of NLRB case alleging student‐athletes must be classified as employees

Although the National Labor Relations Board's general counsel has long made it clear that she believes student‐athletes at colleges and universities should qualify as employees under the NLRA, a recent complaint has become the first case that will test that position before the NLRB and federal courts.

Labor complaint could impact your school

Although the National Labor Relations Board's general counsel has long made it clear that she believes student‐athletes at colleges and universities should qualify as employees under the NLRA, a recent complaint has become the first case that will test that position before the NLRB and federal courts. On May 18, 2023, Region 31 of the NLRB issued an unfair labor practice complaint against the University of Southern California, the Pac‐12 Conference, and the NCAA. The complaint alleges that USC, the Pac‐12, and the NCAA are joint employers and have misclassified football and basketball players at USC as “non‐employees” in order to deprive them of their rights under Section 7 of the National Labor Relations Act.

Do bureaucratic appointees change their minds? Preference stability at the NLRB

ObjectivesQuestions of attitude stability for appointed decisionmakers are vital to our understanding of democracy. I test the assumption of bureaucratic preference stability that is widespread in formal and empirical analyses of the U.S. executive branch.MethodsThe study presents a qualitative analysis of quantitative voting data for members of the National Labor Relations Board from 1948 to 1988ResultsAnalysis reveals a few clear cases of permanent and important preference change and some evidence of change at the very beginning or very end of a few board members' careers. But overall there is remarkable stability in the relative levels of support for labor exhibited by board members as their careers unfold.ConclusionsWith some notable exceptions, an independent regulatory board member's revealed preferences tend to remain stable and consistent with the expectations that any observer would have had at the time of their initial appointment.

Joint Employer Update

In a recent union election, an affiliate of the Communication Workers of America (CWA) unanimously won the right to represent certain technology employees of Cognizant Technology Solutions Corp. The names of the parties may not immediately resonate, but the CWA affiliate is Alphabet Workers Union. In turn, Cognizant Technology Solutions is a staffing agency for Alphabet Inc., which is the parent company for Google, and which was ruled by a National Labor Relations Board (NLRB) Regional Director to be a joint employer with Cognizant. The union win is a step forward to a new joint employer standard that holds putative joint employers liable for bargaining obligations and unfair labor practices.

NLRB Expanding Efforts to Promote Unionization?

Management Report for Nonunion OrganizationsVolume 46, Issue 6 p. 2-8 News NLRB Expanding Efforts to Promote Unionization? First published: 10 May 2023 https://doi.org/10.1002/mare.30966Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Abstract The National Labor Relations Board (NLRB) recently announced a “Know Your Rights” card series, to be published in both English and Spanish, to advise workers of their rights under the National Labor Relations Act (NLRA). According to NLRB General Counsel Jennifer Abruzzo, “This card series is one of many steps we're taking to ensure that all workers know their workplace rights and understand that there is a federal agency, the NLRB, that they may seek help from if they feel that their rights have been violated. The cards will advance the NLRB's efforts to remove barriers for workers in underserved communities through education, outreach, and process so that all workers can safely access the NLRB.” Volume46, Issue6June 2023Pages 2-8 RelatedInformation

Federal Court Changes NLRB Election Rules

In implementing any strategy, it is vital to know the rules. This is true in a variety of contexts, including union organizing. An employer must understand the rules in play between the time a petition is filed and an election is held. A recent decision of the U.S. Court of Appeals for the District of Columbia Circuit, in American Federation of Labor and Congress of Industrial Organizations v. National Labor Relations Board, Docket No. 20‐5223 (January 17, 2023), changed the rules again.

On the Tenuous Track: Unionization Efforts among Contingent Faculty at Private Colleges and Universities

This study examines unionization efforts among contingent faculty members, who now account for the majority of the academic workforce. Drawing on data from the National Labor Relations Board (NLRB) and other sources, this article uses an event history analysis to identify factors associated with efforts to establish a contingent faculty union at private, 4-year institutions. Even after accounting for other state and institution characteristics, this study finds increased odds of contingent faculty unionization at institutions located in states where the legislature is more liberal and where more contingent faculty union certification elections have been held previously.

Errors and Omissions: Applying Lessons from History to Decide the Future of Administrative Deference with Respect to the National Labor Relations Board

Errors and Omissions: Applying Lessons from History to Decide the Future of Administrative Deference with Respect to the National Labor Relations Board