Hunton Retail Law Resource

Across the country, it seems there is a renewed interest in organized labor and workers’ wages, both from the public generally and the federal government.  As it always has been, the retail space remains a likely proving ground for union activity and agency enforcement.

On June 1, 2021, the U.S. Court of Appeals for the D.C. Circuit overturned a NLRB determination that a manager’s incorrect blaming of a union for discrepancies in an employee’s paid-leave time constituted an unfair labor practice. The pivotal issue was whether the manager’s statements had a reasonable tendency to interfere with employees’ labor rights. As discussed below, the D.C. Circuit rejected the NLRB’s determination that the manager’s statements had a reasonable tendency to interfere with employees’ labor rights, reasoning that the manager’s misstatements were lawful expressions of the employer’s opinions.

The COVID-19 pandemic continues to cause uncertainty for employers across the country, but, as the National Labor Relations Board reiterated on September 18, it does not excuse labor law violations.

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The NLRB Continues Its Trend of Employer-Friendly Decisions

This summer, the National Labor Relations Board (“NLRB” or “Board”) issued several decisions that could have important effects for retailers. This article summarizes two of those decisions and explains how they could impact employers.

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As reported on the Hunton Employment & Labor Perspectives blog, the NLRB’s Office of the General Counsel ("the General Counsel") recently issued an internal directive regarding the manner in which NLRB Regions prosecute duty of fair representation charges against unions. Under the National Labor Relations Act, unions have a duty of fair representation to the members of the bargaining unit it represents by engaging in conduct that is not arbitrary, discriminatory or in bad faith, particularly with regard to the processing of worker grievances. Board law has established (and unions typically offer as a defense) that “mere negligence” alone does not amount to arbitrary conduct that would serve to breach the duty of fair representation.

As posted on the Hunton Employment & Labor Perspectives blog, many in the labor community are familiar with the Machinists Union’s (“Union”) long running effort to unionize Boeing’s South Carolina-based 787 Dreamliner manufacturing facility. After failing in two previous attempts to organize the entire facility, the Union recently won a bid to organize a “micro-unit” limited to a group of flight line technicians and inspectors. The Regional Director’s decision to approve the Union’s proposed bargaining unit took most labor practitioners by surprise, given the NLRB’s recent decision in PCC Structurals overturning the controversial Specialty Healthcare standard that facilitated the formation of micro-units. In PCC Structurals, the NLRB rejected the Specialty Healthcare test and reaffirmed that in reviewing representation petitions, the NLRB cannot limit its analysis to the interests of employees in the proposed bargaining group and instead must make a “meaningful” evaluation of the interests of those excluded from the group.

In a major win for employers, the U.S. Supreme Court held that arbitration agreements with class action waivers do not violate the National Labor Relations Act (“NLRA”). As reported on the Hunton Employment & Labor Perspectives Blog, the Supreme Court’s narrow 5-4 decision paves the way for employers to include such waivers in arbitration agreements to avoid class and collective actions.

On January 18, 2018, Hunton & Williams LLP’s retail industry lawyers, composed of more than 100 lawyers across practices, released their annual Retail Year in Review publication. The Retail Year in Review includes many topics of interest to retailers including blockchain, antitrust enforcement in the Trump Administration, ransomware's impact on the retail industry, SEC and M&A activity in 2017, cyber insurance, vulnerability to class actions, and the reduced tax rate.

On August 2, 2017, the U.S. Senate confirmed one of President Trump’s two management-side appointees, Marvin Kaplan, to the National Labor Relations Board (“NLRB”) in a contentious vote along party lines. Kaplan was sworn in on August 10, 2017, for a term ending on August 27, 2020. 

As reported on Hunton's Employment and Labor Law Perspectives blog, over the past eight years, the NLRB has been unusually aggressive with its policymaking. Hunton & Williams' Labor and Employment partners Ryan A. Glasgow and Kurt G. Larkin discuss the current state of labor law, the NLRB and how it might change under the current administration.

If you are a retailer, you may have policies and procedures in place regarding who can speak on behalf of your company. Such policies may generally instruct employees not to speak to the press as a representative of the company, and to direct all media inquiries to a particular person or department. Similarly, if you are a retailer, you may have a policy in place that instructs employees to forward any reference requests to your human resources department. These commonplace policies allow retailers to control their public image and protect employee privacy, among other benefits. But, according to a recent decision by a National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”), such policies may violate the National Labor Relations Act (“NLRA”) by interfering with, restraining or coercing employees in their right to engage in concerted activity.

On March 6, 2017, an NLRB administrative law judge (“ALJ”) issued a ruling finding that a nonunion automotive manufacturing facility in Alabama violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it terminated three employees who walked off the job over a holiday-season scheduling dispute. The ALJ found that the employees were engaged in protected concerted activity despite the fact that they denied discussing the decision to leave work before their shifts had ended.

As reported on the Hunton Employment & Labor Law Perspectives blog, the United States Supreme Court has granted consolidated review of three cases to determine whether arbitration agreements that waive employees’ rights to participate in a class action lawsuit against their employer are unlawful. The Court’s decision to address the uncertainty surrounding class action waivers of employment claims follows a circuit split last year in which the Fifth and Eighth circuits upheld such waivers and the Seventh and Ninth circuits found that such waivers violate the National Labor Relations Act (“NLRA”). Given the increasingly widespread use of class action waivers by employers to stem costly class and collective actions, the high court’s ruling is likely to have a significant nationwide impact.

Last year, we reported on Hunton’s Employment & Labor Law Perspectives blog that a confederation of trade associations filed an amicus brief supporting Volkswagen Group’s challenge to a National Labor Relations Board (“NLRB”) Regional Director’s decision allowing a union election in a “micro-unit” of maintenance workers at the company’s Chattanooga, Tennessee, auto manufacturing plant. At the time, the case was on review before the full NLRB. Unsurprisingly, the NLRB upheld the Regional Director’s decision on review. Now, Volkswagen is seeking review of that decision in the U.S. Court of Appeals for the D.C. Circuit. 

Join us for a complimentary webinar on Tuesday, March 7, 2017, 1:00 p.m. – 2:00 p.m. EDT.

While proactive retail employers are responding to, and preparing for, union organizing efforts at their retail stores, many supply chain workforces remain vulnerable to targeted union campaigns. In this webinar, we will address the special circumstances and vulnerabilities of workforces at warehouses, distribution centers, transport and other supply chain operations. We will review some of the new dynamics in supply chain operations that attract union interest, and offer suggestions ...

On January 13, 2017, the United States Supreme Court agreed to resolve the question of whether class action waivers in the employment context violate the National Labor Relations Act (“NLRA”). The decision will have far-reaching consequences for retailers who include such waivers in employee arbitration agreements in an effort to limit class action exposure. 

Recently, President-elect Donald Trump tapped Andrew Puzder as his pick for Secretary of Labor. Puzder—the CEO of Hardee’s and Carl’s Jr.—has been an outspoken critic of government regulations, including efforts to increase the minimum wage and recent changes to the white-collar overtime exemption. If the Senate confirms Puzder, he will oversee the agencies responsible for these policies and his confirmation could signal a slowdown of anti-business federal regulations from the Department of Labor under President Obama’s Secretary of Labor, Thomas Perez.

On June 3, 2016, Hunton & Williams LLP published a video discussing a 2015 ruling by the National Labor Relations Board (“NLRB”) as it relates to the real estate industry, which fundamentally alters the joint-employer standard. The ruling has already been making waves in the retail industry as the NLRB seeks to apply the new standards to hold certain franchisors liable for the employment violations of its franchisees. The decision comes in an era of increased reliance on third party contractors and staffing agencies to fulfill companies’ staffing requirements and, with recent NLRB action, is being expanded to hold franchisors liable as joint-employers. Under the new standards, an entity can be held liable, as a joint-employer, for the violations of another if the entity retains to itself the ability to effect the terms and conditions of the other’s employees.

As reported on the Hunton Employment and Labor Law Blog, the implementation of the NLRB’s ambush election rules in April 2015 has considerably shortened the average time between the date of a petition being filed by a union and the date of election. This change substantially impacts the employer’s ability to conduct an effective campaign in the event of a union petition.

As reported in the Hunton Employment & Labor Perspectives blog, the National Labor Relations Board (“NLRB”) held that rules in Whole Foods’ General Information Guide prohibiting unapproved tape and video recording in the workplace violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”).