National Labor Relations Board (NLRB) updates

Representation procedures

The NLRB has implemented new representation procedures. The change provides:

  • more time between the filing of a petition and an election, and
  • a requirement in election cases to have a written statement of position from both parties explaining their position on the appropriate bargaining unit.

Access rules

In American Automotive Centers and UPMC, the NLRB has ruled that the employer is not required to permit union representatives in employer public areas but the employer did violate the National Labor Relations Act by requiring employees on a break to show identification.

In Walmart Stores, the NLRB found that a dress code requiring outside logos to be “small” and “non-distracting” violated § 8(a)(1) as it applied to employees not on the shop floor.

Jurisdictional cases

The NLRB has ruled on several jurisdictional cases in which it chose not to assert jurisdiction; or rather, the NLRB chose not to apply the protections of the National Labor Relations Act (NLRA). Most notably, in ABM Onsite Services, bag jammer technicians were found to be covered by the Railway Labor Act and not the NLRA. The standard to determine whether workers are independent contractors or employees was changed, leaving airport shuttle drivers to be considered contractors excluded by the NLRA.

Scabby the Rat

The NLRB has invited interested parties to file amicus briefs on the issue of whether an inflatable rat and banners constitute picketing and thus the union’s use of them constitutes unlawful secondary activity, and whether a NLRB decision concerning this could violate the First Amendment. Briefs are due December 28, 2020. More information is available at