Crosscurrents in Federal labor law create challenges and opportunities

In one of the most significant labor law cases in recent memory, Glacier Northwest, Inc. v. Int'l Bhd. of Teamsters Loc. Union No. 174, 143 S.Ct. 1404 (2023), the Supreme Court narrowed the scope of the Garmon preemption doctrine. This doctrine has protected employees and unions for many decades from the misuse of the courts by employers to gain tactical advantage during labor disputes and otherwise. Specifically, the Garmon preemption doctrine has prevented employers from suing for the conduct of employees and/or unions that is at least arguably protected by the National Labor Relations Act (“NLRA”) or at least arguably prohibited by the NLRA. The policy underlying this doctrine seeks uniformity in the application of Federal labor law across the country and, relatedly, precludes the abusive use of injunctions and other improper litigation by employers. Although the Supreme Court limited application of the Garmon preemption doctrine, the Supreme Court did not limit it by much. In short, this doctrine now will allow litigation if a union fails to take reasonable precautions to prevent damage to an employer’s property during a strike.

In contrast, rulings by the National Labor Relations Board (“NLRB”) and initiatives by the NLRB General Counsel have expanded rather than contracted employee protections. Examples of recent decisions by the NLRB include the following:

• The Atlanta Opera, 372 NLRB No. 95 (2023) (liberally defining who is an employee with accompanying rights as opposed to an independent contractor with no such rights);
• Lion Elastomers LLC, 372 NLRB No. 83 (2023) (broadening the definition of protected concerted activity and, consequently, making it more difficult for employers to discipline or discharge an employee who protests working conditions in “uncivil” ways or who engages in disruptive behavior during labor disputes);
• Noah’s Ark Processors II, 372 NLRB No. 80 (2023) (enhancing remedies available against employers that have engaged in egregious, widespread, or repeat misconduct);
• Thryv, Inc., 372 NLRB No. 22 (2022) (related to Noah’s Ark, expanding the scope of make-whole relief that employers may be ordered to provide employees and unions, including compensation for all damages that were foreseeable and directly caused by an employer’s unfair labor practice; such damages may include search-for-work and interim employment expenses as well as medical expenses, credit card debt, and other costs incurred to maintain one’s livelihood);
• Bexar County II, 372 NLRB No. 28 (2022) (allowing employees to access worksites owned by a third party to engage in protected concerted activity while the employees are off duty unless such activity will significantly interfere with the use of the third party’s property);
• American Steel Construction, Inc., 372 NLRB No. 23 (2022) (barring an employer from changing the bargaining unit seeking union representation unless the employer proves that excluded employees share an “overwhelming community of interest” with included employees); and
• McLaren Macomb, 372 NLRB No. 58 (2023) (prohibiting non-disparagement and non-disclosure terms in severance and other settlement agreements with employers).

In addition, the NLRB General Counsel has spearheaded an array of important developments in the enforcement of existing rights and protections while seeking to expand those rights and protections. She has done so by issuing a series of memoranda and facilitating cross-agency collaboration and enforcement, as summarized below:

• GC 23-08, “Non-Compete Agreements that Violate the National Labor Relations Act” (announcing the intent to challenge employee non-compete agreements because they infringe on employees’ rights to protest their working conditions by resigning and seeking other employment);
• GC 23-02, “Electronic Monitoring and Algorithmic Management of Employees” (announcing the intent to protect employees from intrusive electronic surveillance and automated management practices by litigating against employers who use new surveillance technologies, algorithms, and/or artificial intelligence that interferes with employees’ rights to unionize and engage in other protected concerted activity);
• GC 22-04, “The Right to Refrain from Captive Audience and other Mandatory Meetings” (announcing the intent to challenge the lawfulness of mandatory meetings in which employers discourage employees from exercising their rights to join a union and otherwise organize);
• GC 22-01, “Ensuring Rights and Remedies for Immigrant Workers Under the NLRA” (emphasizing the NLRB will always make clear to all witnesses that immigration status is not relevant to whether there has been a violation of the NLRA, that information obtained during NLRB investigations is protected, and that a charging party and other witnesses can ask the NLRB to secure immigration relief for employees at a worksite if it is necessary to protect employees who are participating in NLRB processes or otherwise exercising their rights under the NLRA);
• GC 22-02, “Seeking 10(j) Injunctions in Response to Unlawful Threats or Other Coercion During Union Organizing Campaigns” (announcing the intent to expand the use of injunction actions to stop unlawful employer practices during an employee organizing campaign, including unfulfilled threats to discipline or discharge employees in retaliation for their exercise of rights); and
• Coordinating investigation and enforcement efforts with the Federal Trade Commission, the Consumer Financial Protection Bureau, and the United States Department of Justice as well as engaging in important rulemaking to broaden the scope of joint employment to expand employee rights and employer responsibilities: 87 Fed. Reg. 54641 (proposed Sept. 7, 2022) (to be codified at 29 C.F.R. pt. 103).