An employee’s complaints about his pay to coworkers was protected concerted activity under the National Labor Relations Act (NLRA), even though the employee was unsuccessful in enlisting any other employees to support his complaints, the Advice Division of the National Labor Relations Board’s (NLRB) Office of the General Counsel has decided.

Therefore, the NLRB found the employee’s termination for his wage complaints violated the NLRA and instructed the Regional Director for Region 14 to issue an unfair labor practice complaint on the employee’s unfair labor practice charge. Gallup, Inc., 14-CA-234530 (July 24, 2019, released Oct. 18, 2019).


The employee was a quality assurance (QA) coordinator. When Gallup reclassified its QA employees from “exempt” to “non-exempt,” the employer reduced their base salary by $7,000 because the reclassified QA employees were newly entitled to overtime pay. The employer informed the employees that if they worked the same hours they had been working before, their overtime pay would make up for the lower base and equal the same amount they had earned as exempt employees.

Unhappy about the change, the employee raised the issue on several occasions with his QA coworkers and supervisors. Some employees agreed with the employee, but most responded that the new pay structure could be an improvement. Some who agreed with the employee later left the company or transferred to different teams.

Following a November companywide meeting, the employee raised the pay issue with the employer’s management. They informed the employee that a coworker had told them about the employee’s pay complaints to coworkers. They told the employee that he “need[ed] to be accepting of his pay and that he shouldn’t complain about not being paid enough.”

The employee asked employees in other departments about available jobs. The employee’s manager questioned why he was talking to employees on other teams. When the employee objected to the question, his manager emphasized that he wished the employee had come to him first, that the company was not for everyone, and that it would be okay if the employee went to work somewhere else if the employee was unhappy.

The employee subsequently was terminated and was told, “[W]e know you are not happy here. You’re disengaged. You’re not happy and you’ve been talking about your pay to other people. Today will be your last day.”

The employee filed an unfair labor practice charge with the NLRB’s Region 14 office alleging the termination and the supervisors’ statements violated the NLRA. The Region 14 Regional Director referred the allegations to the Advice Division for assistance in deciding whether the allegations set forth violations of the NLRA.

Advice Division Decision

The Advice Division decided the termination violated the NLRA. Citing the “test” under the Board’s Meyers Industries decisions for determining whether activity is concerted, the Advice Division explained, “In general, to find an employee’s activity to be ‘concerted,’ we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” It also explained that individual employees act concertedly where they “seek to initiate or to induce or to prepare for group action.” Meyers Industries, 268 NLRB 493 (1984); Meyers Industries, 281 NLRB 882 (1986).

The Advice Division distinguished the facts in the case from those in Alstate Maintenance, 367 NLRB No. 68 (Jan. 11, 2019). The Alstate employee’s complaints about a customer’s tip practices was not protected activity and, therefore, his termination for making those complaints did not violate the NLRA. There, the NLRB held that a single statement about one customer’s tip history, although said in the presence of other employees (in a meeting), was a mere gripe not intended to induce group action about a workplace concern. The tip comment also was not for the purpose of “mutual aid or protection” (a necessary element for a finding of protected concerted activity), because the employer had no control over the customer’s tip practice (and, therefore, could not remedy the employee’s complaint).

Unlike in Alstate, the employee’s conduct in the present case was for mutual aid or protection because it concerned the pay structure, pay amount, and hours of work requirements maintained by the employer and over which it had full control.

The Advice Division wrote:

Although the Charging Party was met with at most only passive agreement from coworkers rather than willingness to join him in seeking concrete action, the lack of “fruition” in his campaign to solicit employees’ support for his complaints against a new system d[id] not nullify the concertedness of the conduct.

Finally, the Advice Division found that it was clear the employee’s protected concerted discussions about pay and hours contributed to the termination decision; the employer specifically listed “talking about his pay to other people” as a reason for discharge.

The Advice Division concluded, “[N]otwithstanding the lack of success, the employee’s ongoing complaints to fellow employees about their pay was protected concerted activity and thus the employee’s discharge for that conduct violated Section 8(a)(1) of the Act.”

Regarding the statements, the directive to the employee to stop discussing his pay also was a violation of the NLRA, the Advice Division found. The statement that the employee should leave the company if he was not happy was not a violation, however, because that statement was made in response to the employee’s complaints about his own pay. Even assuming that statement may be taken as a veiled threat, the Advice Division explained, it was not unlawful because it was not in response to protected concerted activity and did not direct the employee to stop engaging in protected concerted activity.

In a footnote, the Advice Division urged the NLRB to overturn a line of cases arguably conflicted with the Meyers standard and in which the Board deemed statements about certain subjects “inherently” concerted. The NLRB previously has indicated its interest in revisiting this concept, but it has not yet been presented with a case in which the inherently concerted issue is raised. Citing Alstate, the General Counsel advised the Regional Director not to follow this “inherently concerted” theory of a violation of the NLRA.


This Advice Memorandum illustrates that proper identification of protected concerted activity requires a detailed and fact-specific analysis. Employers are well-advised to weigh employment decisions that may involve more than one employee and protected topics carefully and to consult experienced labor counsel when necessary.

Please contact a Jackson Lewis attorney with any questions about this Advice Memorandum or the NLRB.

An arbitration agreement requiring that all “claims or controversies in any way relating to or associated with … employment or the termination of … employment … will be resolved exclusively by binding arbitration,” including “all statutory… claims” violated the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has ruled.

The Board, applying Boeing Co., 365 NLRB No. 154 (2017), found that the agreement made arbitration the exclusive forum for the resolution of statutory claims under the NLRA, which violates the NLRA. Cedars-Sinai Medical Center, 368 NLRB No. 83 (Sept. 30, 2019). The Board categorized the agreement as a Category 3 policy under Boeing. (For more on Boeing and its category approach to employer rules, see our articles Labor Board Sets New Standard for Determining Lawfulness of Facially Neutral Workplace Rules and Labor Board Clarifies Boeing Work Rules Decision, Finds Confidentiality, Media Contact Rules Lawful).

The Board rejected the employer’s defense that the agreement’s “savings clause,” which provided that the agreement “does not apply to . . . claims . . . that are preempted by federal labor laws,” was sufficient to communicate to employees that claims under the NLRA were not covered. Citing Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), where the Board also held an arbitration agreement unlawfully prohibited the filing of claims with the NLRB, the Board noted that:

[v] ague savings clauses that would require employees to “meticulously determine the state of the law” themselves are likely to interfere with the exercise of NLRA rights. Such clauses include, for example, those stating that “nothing in this agreement shall be construed to require any claim to be arbitrated if an agreement to arbitrate such claim is prohibited by law,” that exclusively require arbitration limits that requirement to circumstances where a claim “may lawfully be resolved by arbitration.”

The Board held that the phrase “preempted by federal labor laws” was vague and that an “objectively reasonable employee … reading this vague language would not divine an implicit intent to exclude claims arising under the Act.”

The Board contrasted that savings clause with the one in the arbitration agreement under review in Briad Wenco, 368 NLRB No. 72 (2019). The savings clause there stated: “Nothing in this Agreement shall be construed to prohibit any current or former employee from filing any charge or complaint or participating in any investigation or proceeding conducted by an administrative agency, including but not limited to … the National Labor Relations Board ….”

In addition to its determinations regarding the lawfulness of the arbitration agreement, the Board also held that the company’s action for declaratory judgment in state court did not violate the NLRA. In light of the U.S. Supreme Court’s decision in Epic Systems, 138 S.Ct. 1612 (2018), the Board held that the company could lawfully seek to compel individual, rather than class, arbitration through a complaint in state court.


Employers should evaluate whether their arbitration agreements clearly inform employees of their right to file charges with the NLRB. Employers should not rely on a vague savings clause to communicate to employees that employees still can file unfair labor practice charges at the NLRB.

Please contact a Jackson Lewis attorney for questions about this case, the NLRB, or assistance in implementing or reviewing an employee dispute resolution program.

The National Labor Relations Board (NLRB) has held that an employer did not violate the National Labor Relations Act (NLRA) when it unilaterally changed retirees’ medical benefits without first negotiating with the unions that represented its employees. E.I. Du Pont De Nemours and Co., 368 NLRB No. 48 (Sept. 4, 2019).

The NLRB found the unions waived their right to bargain over those changes. Chairman John Ring and Member Marvin Kaplan were in the majority, while Member Lauren McFerran dissented.


E.I. Du Pont De Nemours and Company manufactures synthetic fibers and related products at facilities throughout the United States. DuPont maintained company-wide employee benefit plans for all its employees and retirees. Although DuPont informed the unions it would negotiate separate plans for union-represented employees, the unions consistently agreed to participate in the company-wide plans.

DuPont’s company-wide benefit plans contained “reservation-of-rights” provisions, which allowed the company to retain the right to suspend, modify, or terminate the benefit plan at its discretion. The unions accepted DuPont’s plans with the reservation-of-right provisions. The collective bargaining agreements (CBAs) with each union also contained similar reservation-of-rights provisions, which recognized DuPont’s right to make unilateral changes to the benefit plans, subject to certain restrictions in the CBAs and the benefit plan documents.

In 2013, DuPont made unilateral changes to its company-wide Dental Assistance Program and Medical Care Assistance Program retirement benefit plans that affected coverage for some of DuPont’s retirees and their covered dependents. One of the conditions on which the company had offered, and the unions had accepted, the unit employees’ participation in dental and medical care assistance programs was that DuPont reserved the right to make changes to the plans or to terminate the programs entirely. Exercising that right, DuPont had made numerous unilateral changes to the programs, without objection by the unions. This time, however, the unions objected and filed unfair labor practice charges with the NLRB alleging the changes were unlawful. DuPont defended against the charges, arguing that the union had “clearly and unmistakably” waived its right to bargain over the changes. An unfair labor practice complaint was issued and sent to trial before an NLRB Administrative Law Judge (ALJ).

Administrative Law Judge Decision

After a trial, ALJ Michael A. Rosas held the unions did not clearly and unmistakably waive their bargaining rights because nothing in the CBAs shows they gave up their rights to bargain over benefit changes. He also noted that the CBAs did not reference the plans.

Board Decision

The Board found that, while retiree healthcare benefits for active bargaining-unit employees is a mandatory subject of bargaining under the NLRA, the unions waived their right to bargain over these changes. Contrary to the ALJ, the Board found the contract language and the parties’ bargaining history and past practice, taken together, demonstrated the unions clearly and unmistakably waived their right to bargain over the changes.

Regarding contract language, the Board found that contractual references to a benefit plan that contains reservation-of-rights language, like those here, can support a finding of waiver, even if the reference would be insufficient, standing alone, to establish waiver.

The Board also found that bargaining history supported a finding that the unions waived their right to bargain over the changes. The unions had agreed to participate in the various plans without bargaining after opposing the plans during collective bargaining and, therefore, “consciously yielded” its position that bargaining should occur. Finally, past practice — numerous unilateral changes made to the old plans without bargaining and without objection from the unions — supported the waiver finding.

Based on these factors, the Board found that the unions had clearly and unmistakably waived their right to bargain over the changes. Accordingly, the Board dismissed the unfair labor practice charges.


Since this case was decided, in MV Transportation, Inc., 368 NLRB No. 66 (Sept. 10, 2019), the NLRB adopted a new contract coverage standard as the primary standard for determining whether an employer had an obligation to bargain before implementing a change (see our article, Labor Board Adopts ‘Contract Coverage’ Standard in Unilateral Change Cases, Overturns Precedent). Nevertheless, if appropriate, employers should still argue that an obligation to bargain over a change did not exist because the union clearly and unmistakably waived its right to bargain over the change. Under MV Transportation, the clear and unmistakable waiver test applies if the Board does not find the unilateral changes are allowed under its new contract coverage standard.

Please contact a Jackson Lewis attorney with any questions about this case or the NLRB.

A wildcat strike was not protected by the National Labor Relations Act (NLRA) once the striking employees became aware that their union disapproved of and disavowed the strike, the National Labor Relations Board (NLRB) has ruled. CC1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers, 368 NLRB No. 84 (Sept. 30, 2019).

The employees’ continued striking, despite their union’s opposition, undermined the union’s exclusive bargaining authority and resulted in a loss of the NLRA’s protections, the NLRB explained.

Chairman John Ring, and Members Marvin Kaplan and William Emanuel participated in the decision.


A Teamsters Local represented warehouse employee at the company’s bottling plant. In September 2008, during negotiations for a successor collective-bargaining agreement, the union’s main representative at the plant and several shop stewards led employees in a two-hour work stoppage. The company suspended and then terminated the shop stewards.

On October 20, the first day of a strike led by the terminated stewards, the company’s counsel warned the union’s Secretary Treasurer, that it would take action against “the Union and its representatives” unless the illegal strike stopped. The union replied on the same day, making it “abundantly clear that [it] did not send or authorize the presence of Officers or Union members to take part in the strike.” The union stated in its letter that the strikers “were in violation of the statutes of the Union” and engaged in “clearly illegal activity.” The union assured the company that it would “be taking legal and union action” against the “false [union] leaders” who were “threatening … the welfare of the great majority of these workers in order to promote their own ignoble interests.”

The company had its security guards distribute copies of the union’s letter to the striking employees. However, most employees continued to strike for two more days, through October 22. The company ultimately suspended or discharged 86 of the strikers.

2015 Board Decision

The dispute first reached the Board in 2015. The Board decided the strike was protected by Section 7 of the NLRA and that the company unlawfully suspended and discharged the striking employees. CC1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers, 362 NLRB No. 125 (June 18, 2015).

The NLRB applied Silver State Disposal Service, 326 NLRB 84 (1998). In that case, the Board developed a two-part test to determine whether a wildcat strike is protected: (1) whether the employees attempted to bypass their union and bargain directly with the employer; and (2) whether the employees’ position was inconsistent with the union’s position.

In ruling the company violated the law, the NLRB assigned little significance to the union’s October 20 strike disavowal letter, because it was the company that had distributed it to the striking employees.

D.C. Circuit Remand

The company appealed the decision to the U.S. Court of Appeals for the District of Columbia. CC1 Ltd. P’ship v. NLRB, 898 F.3d 26 (D.C. Cir. 2018). The Court remanded the case to the NLRB for further explanation of its conclusion that the wildcat strike was protected activity, focusing on the October 20 letter.

2019 Board Decision

Regarding the October 20 letter, the Board found that “[t]he mere distribution of the letter by the security guards cannot negate employees’ knowledge of the Union’s disavowal of the strike and legitimate their conduct in derogation of the Union’s position.” This was especially true, the Board said, because there was no evidence that the notification to the strikers was the result of manipulation or fraud, or that the third-party messengers engaged in misconduct, intimidation, or other coercion in distributing the flyers.

The Board noted that the letter was “facially bona fide” and, “under the circumstances surrounding the strike[,] amply sufficed to establish to the strikers that their Union opposed the strike.” (The Board also found significant the conspicuous absence of union leadership who supported or participated in the strike or conducted or attended the meeting at which the strike vote took place.)

The employees’ continued striking after the letter’s distribution was not protected by the NLRA, the Board ruled. The Board did not apply Silver State. Instead, it applied Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975), where the U.S. Supreme Court held that a strike is not protected if it is an attempt to engage in separate bargaining from the striking employees’ union and interferes with the union’s exclusive bargaining representative status. the NLRB dismissed the challenges to the strikers’ suspensions and discharges. (In a footnote, the NLRB “question[ed] whether the standard set forth in Silver State Disposal for determining whether an unauthorized strike is protected is consistent with the principles of Emporium Capwell Co.”)


This decision is an example of the Trump Board’s efforts to clarify the standards with which employers must comply in protecting their businesses from overreaching activity by employees, non-employees and union representatives. (For another example, see our article, NLRB Strengthens Property Rights, Employers May Limit Off-Duty Access by Contractors’ Employees.)

If you have any questions about this decision or the NLRB, please contact a Jackson Lewis attorney.

National Labor Relations Board Chairman John Ring has again informed Democratic leaders of the U.S. House of Representatives Committee on Education and Labor that the Agency will not release documents they requested related to NLRB members’ recusals from Board cases.

On August 15, 2019, Bobby Scott, D-Va., Chairman of the House Committee on Education and Labor, and Frederica Wilson, D-Fla., Chairwoman of the House Subcommittee on Health, Education, Labor and Pensions, again requested documents related to Board members’ conflicts of interest. The document requests originally were made on May 6, 2019, and were responded to on May 23, June 5 and 21. Ring did not give the Committee all of the requested documents, however.

In their August 15, 2019, request, the Committee again asked for: memoranda from the NLRB’s ethics official (who makes determinations on members’ recusals from certain cases); updated lists of cases in which Board members could not participate; documents relating to the “appropriateness” of members’ participation in a certain matter; and an update on the ethics review announced by the Board following its withdrawal of the ­Hy-Brand decision.

Scott’s and Wilson’s requests for NLRB ethics documents is part of House Democrats’ inquiry into the Board’s ethics standards following the NLRB’s withdrawal of its Hy-Brand decision after the Board’s inspector general determined that Member William Emanuel should have recused himself from the case due to his former firm’s representation of a party in a related case. The decision sought to overturn the Board’s Obama-era decision in Browning-Ferris, which substantially expanded the Board’s standard for determining joint-employer status.

In his September 4, 2019, response, Ring again declined to release the requested documents for several reasons. For example, he noted that the documents were “pre-decisional” and their production would violate Board norms that promote candor when evaluating potential conflicts of interest. Ring also maintained the Board’s “longstanding position” that the requested documents contained “pre-decisional” and “privileged” communications among Board members and NLRB staff that cannot be released outside the NLRB. Ring further noted that disclosure of recusal lists could “reasonably be expected to interfere with the Board’s law enforcement function” because parties may be able to claim, as a result, a denial of due process when members recuse themselves from the affected party’s case.

Although the lawmakers argued that memoranda drafted by the NLRB’s ethics official reflect his final “decisions,” Ring clarified that many “decisions” are made during the processing of a case before the members make their decision on the merits of the case. These “decisions” include the Board’s executive secretary’s determinations as to Board members’ case assignments, members’ assignments of cases to their staff attorneys, and recusal decisions. Ring reaffirmed to the Committee leaders his commitment “to transparency and to cooperating with [the Committee] regarding . . . [its] oversight responsibilities.”

As to the lawmakers’ request for an update on the Agency’s internal ethics review, Ring stated that the Agency plans to complete it this fall.

How the NLRB analyzes defenses to unilateral change unfair labor practice charges may be in for a substantial revision.

National Labor Relations Board (NLRB) Chairman John Ring and Member Marvin Kaplan have signaled their interest in reviewing the law in this area. E.I. du Pont de Nemours & Co., 368 NLRB No. 48 (Sept. 4, 2019). In footnote 13 of the decision, they expressed their intention to revisit the applicability of the “contract coverage” defense in a future appropriate unilateral change case.

Under the National Labor Relations Act (NLRA), employers have a duty to bargain in good faith with the union that represents its employees about mandatory subjects of bargaining (e.g., wages, hours, and other terms and conditions of employment). An employer’s unilateral change to a mandatory subject of bargaining without first offering to bargain with the union is a violation of the NLRA, unless the employer has a valid defense, such as the union’s waiver of the right to bargain.

An employer has a difficult burden to establish a waiver defense; it must prove the union clearly and unmistakably waived its right to bargain over the topic. This can be shown through contract language, bargaining history, and/or past practice. An employer must show the parties “unequivocally and specifically express[ed] their mutual intention to permit unilateral employer action with respect to a particular employment term, notwithstanding the statutory duty to bargain that would otherwise apply.” Provena St. Joseph Med. Ctr., 350 NLRB 808, 811 (2011). Under this standard, the Board narrowly construes waivers and has been hesitant to imply waivers not expressly mentioned in the collective bargaining agreement (CBA).

The Board in Provena applied the “clear and unmistakable waiver” standard in analyzing the employer’s defense. Then-Chairman Robert Battista dissented, writing that he would have applied a less restrictive “contract coverage” standard to the case. He explained:

Under this [contract coverage] test where there is a contract clause that is relevant to the dispute, it can reasonably be said that the parties have bargained about the subject and have reached some accord. Thus, there has been no refusal to bargain. In sum, the issue is not whether the union has waived its right to bargain. The issue is whether the union and the employer have bargained concerning the relevant subject matter. If so, the Board and the courts should honor the fruit of that bargaining.

Where the contract coverage defense is asserted in response to a unilateral change allegation, the employer would claim the change was allowed by a clause or clauses in the CBA. If the union disagreed, it would be expected to file a grievance alleging the clause or clauses did not permit the unilateral change and that the employer’s actions violated the CBA. Through the grievance process, an arbitrator would apply normal principles of contract interpretation to decide whether the contract clause or clauses were relevant to the dispute. If they are found relevant, the arbitrator would determine if the employer’s change violated the CBA.

The contract coverage defense has been adopted by some U.S. Courts of Appeal, including the D.C., First, and Seventh Circuits. If the defense is adopted by the NLRB, employers will have an easier burden to defend against unilateral change allegations.

We will report any further developments. Please contact a Jackson Lewis attorney if you have any questions about this issue or the NLRB.

According to a recent Gallup poll, almost two-thirds of Americans approve of labor unions.

After reaching an all-time low of 48% in 2009, approval of labor unions has increased steadily to 64%. This increase crosses political party lines. According to the Gallup poll, 82% of Democrats approve of unions. Although only 45% of Republicans approve of unions, this represents a significant increase from only 29% in 2009. Approval among Independents also has grown 17% since 2009, to 61%.

According to Gallup, unions have enjoyed higher approval ratings only twice since 1970: in 1999 and 2003. Union leaders partially credit highly publicized strikes and walkouts for the rise in support, and they have pledged to organize more aggressively to capitalize on the growing popularity.

As public support for unions grows, it is more important than ever for employers to educate supervisors about how to recognize early warning signs and lawfully respond to organizing by explaining what union representation may mean for employees and their families. Jackson Lewis attorneys are available to work with employers to provide legal advice on these issues, and on how employers can create an environment where employees feel well-treated and see no need for union representation.


Two of the four members of the National Labor Relations Board (NLRB) have indicated they are willing to rethink a key element of the Board’s more-than-40-year-old precedent regarding employers’ off-duty employee access rules under the National Labor Relations Act (NLRA). Southern Bakeries, 368 NLRB No. 59 (Aug. 28, 2019).

Members William Emanuel and Marvin Kaplan, both nominated by President Donald Trump, wrote in a footnote in Southern Bakeries that they were prepared to “reconsider … in a future appropriate case” the “third prong” of the test in Tri-County Medical Center, 222 NLRB 1089 (1976), for determining the validity of employer off-duty employees access rules.


Under Tri-County, an employer’s rule prohibiting access by off-duty employees is valid only if three conditions are met: “it (1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity.” . The third prong of the test has proven to be vexing for employers because it does not even permit an employer to maintain a rule that allows an employee to return to the workplace for innocuous reasons, such as to pick up a paycheck.

NLRB General Counsel Memo

Among other responsibilities, the NLRB hears appeals of decisions made by administrative law judges in unfair labor practices cases. In connection with their desire to review the Tri-County test, Members Emanuel and Kaplan will find a willing ally in NLRB General Counsel Peter Robb. The General Counsel decides which unfair labor practice charges to prosecute and, therefore, to shepherd through the NLRB processes to the Board. In a memorandum issued on December 1, 2017, Robb listed the types of cases he would like to present to the Board with the goal of convincing the NLRB to reverse or modify current law (“to present [to the Board] an alternative analysis” to the existing one). NLRB Memorandum GC 18-02 (“Mandatory Submissions to Advice”). Among them were cases arising under Tri-County.

If you have any questions about Southern Bakeries or the NLRB, please contact a Jackson Lewis attorney.

UNITE HERE hopes to increase its membership by one-third, to 400,000 members, by 2024, according to Bloomberg Law.

UNITE HERE represents employees in the hotel, gaming, food service, airport, textile, manufacturing, distribution, laundry, transport, and other industries. With approximately 300,000 members and a well-publicized history of strikes and demonstrations, it is widely recognized as one of the most aggressive and combative unions in the country.

Although such an increase in membership is ambitious, UNITE HERE has met similar goals in the past. It announced at the union’s 2014 constitutional convention that it would add 50,000 employees by its 2019 convention. UNITE HERE added 62,000 employees during that five-year period.

UNITE HERE stated it would increase focus on southern states with traditionally lower unionization rates in order to reach its 100,000-member goal. It also pledged to support more members in elections for political office.

As UNITE HERE and other unions continue to gain political strength and organize aggressively throughout the country, it is increasingly important for employers to educate supervisors about their rights and responsibilities in response to organizing. Jackson Lewis attorneys are available to advise employers in such legal matters, and on how employers can create an environment where employees feel well-treated and see no need for union representation.



The National Labor Relations Board has issued a proposed rule to modify three aspects of its election procedures.  According to the board’s announcement, the Notice of Proposed Rulemaking (NPRM), which will be published in the Federal Register on Monday and be subject to a comment period, would affect the Board’s blocking charge rule, voluntary recognition bar and collective-bargaining relationships in the construction industry:

  • Blocking Charge Policy: The NPRM proposes replacing the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.
  • Voluntary Recognition Bar: The NPRM proposes returning to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and a 45-day open period within which to file an election petition.
  • Section 9(a) Recognition in the Construction Industry: The NPRM proposes that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001).

For more information, see our article, Representation-Case Procedures, Students as Employees, Access to Private Property on NLRB Rulemaking Agenda. Jackson Lewis is preparing a more extensive analysis of the proposed rule, which will appear on our website shortly.