- The U.S. Supreme Court raised the standard a U.S. district
court must apply when analyzing the propriety of a 10(j)
injunction. No. 23-367 (June 13, 2024). The decision requires
courts to use a four-part test when evaluating whether to grant a
preliminary injunction at the request of the National Labor
Relations Board's regional offices pending litigation of a
complaint under the National Labor Relations Act. Courts have been
split on which test should apply: the four-part test used in
traditional litigation settings, a more lenient two-part test, or a
hybrid of the two. The Court ruled the traditional litigation
standard should apply. A party seeking injunctive relief must
"make a clear showing" that: (1) it is likely to succeed
on the merits; (2) it is likely to suffer irreparable harm in the
absence of preliminary relief; (3) the balance of equities tips in
his favor; and (4) an injunction is in the public interest. This
will raise the Board's burden of proof and create more
consistency across district courts at a time employers increasingly
face injunction requests initiated by the Board's general
counsel.
- The U.S. Supreme Court overturned the Chevron
doctrine of judicial deference to a federal agency's
interpretation of an ambiguous statute. Loper Bright Enters. v.
Raimondo, and Relentless, Inc. v. Department of Commerce, Nos.
21-5166/22-1219 (June 28, 2024). While Chevron deference
provided that federal courts will defer to all federal agencies,
deference to Board action predates this doctrine. Thus, the
Court's decision does not directly address deference to Board
decisions and rulemaking. However, given the Court's clear
pronouncement that administrative agencies are not due special
deference, it would appear that Board cases will be subject to
increased scrutiny. As a result, labor law may have to reorient
around the best reading of the Act's language and Supreme Court
precedent. The immediate impact on the Board may be clear shortly
as the Board defends some of its latest rulemaking, including its
2023 joint-employer standard and its new precedent outlining when
bargaining orders may be issued to circumvent a union election.
Long-term, the Court's decision may have additional effects,
including stabilizing the administration of federal labor law,
increasing diligence in developing new regulations, and promoting
adherence to statutory text rather than new rules and modified
precedent depending on the makeup of the Board that make legal
compliance more difficult.
- The Board ordered a Las Vegas casino operator to bargain
with a UNITE HERE affiliate despite the union's election loss.
NP Red Rock LLC d/b/a Red Rock Casino Resort Spa, No.
28-CA-244484 (June 17, 2024). The Board found NP Red Rock LLC
committed numerous acts of unlawful coercive conduct during the
union's organizing campaign (including threatening employees
with job loss) that likely impacted the election. The Board
therefore issued a first bargaining order under the longstanding
Gissel standard because of the company's
"pervasive and egregious misconduct." However, it also
issued a second, alternative bargaining order under a
precedent-shifting 2023 decision that provided a new framework for
when employers must recognize a union following unfair labor
practices that warrant setting aside an election. The decision
marks the first time the Board has issued such an order. NP Red
Rock will have to recognize the union and engage in collective
bargaining negotiations.
- Former Board Chairman John F. Ring testified before a U.S.
House of Representatives committee criticizing the current
Board's modification of precedent contrary to the intent of the
Act. In his testimony before the Subcommittee on Health,
Employment, Labor, and Pensions, within the Committee on Education
and the Workforce, Ring asserted that the current Board has
"lost its way," attempting to "rewrite the Act to
facilitate unionization at the expense of individual employee
rights and employer interests." Referencing the Obama-era
Board, which overturned years of precedent in order to tip the
balance in favor of unions, he argued that the Board majority and
general counsel are pursuing an even more aggressive agenda. Ring
discussed recent court decisions that have rejected the Board's
decisions, as well as the Board's "extreme" policy
agenda, which includes changes to union organizing, bargaining
orders, and protection of offensive speech in the workplace. He
also highlighted recent Board decisions that overturned cases from
his tenure as chairman, which he argued allow unacceptable
workplace conduct and create conflicts with other federal
agencies.
- The Board announced the closure of the Division of Judge's New York City office, effective July 15, 2024. The Board cited the retirement of the New York City office's Associate Chief Administrative Law Judge Kenneth W. Chu, as well as the staff's decreased need for physical office space. The administrative law judges and staff assigned to the office will continue processing cases from Regional Offices 2 (Manhattan), 22 (Newark), and 29 (Brooklyn), but they will be administratively reassigned to the Board's Washington, D.C. office. The D.C. office will begin docketing and processing cases from those regions following the New York City office's closure.
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