On September 28, 2014, the Franklin County Court of Common Pleas dismissed GDRTA’s appeal for lack of subject matter jurisdiction, finding that “transacts business” was ambiguous under R.C. 4117.13(D) because it failed to specify whether it meant any business, the majority of its business, business related to its main purpose, or business related only to the alleged unfair labor practice.Because R.C. 4117.13(D) is based on 29 U.S.C. 160(f), the trial court relied on federal court cases, concluding that it did not have jurisdiction because GDRTA had no physical facilities or employees located in Franklin County. Merely purchasing goods, making telephone calls, having sales representatives and employees who traveled there was insufficient.

STRENGTHENING ENFORCEMENT.(a) Injunctions Against Unfair Labor Practices During Organizing Drives-(1) IN GENERAL- Section 10(l) of the National Labor Relations Act (29 U.S.C. 160(l)) is amended–(A) in the second sentence, by striking `If, after such’ and inserting the following:(2) If, after such’; and(B) by striking the first sentence and inserting the following:(1) Whenever it is charged–(A) that any employer–(i) discharged or otherwise discriminated against an employee in violation of subsection (a)(3) of section 8;(ii) threatened to discharge or to otherwise discriminate against an employee in violation of subsection (a)(1) of section 8; or(iii) engaged in any other unfair labor practice within the meaning of subsection (a)(1) that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed in section 7;while employees of that employer were seeking representation by a labor organization or during the period after a labor organization was recognized as a representative defined in section 9(a) until the first collective bargaining contract is entered into between the employer and the representative; or(B) that any per

The court agreed based on the legal analysis in NLRB v. Enterprise Leasing Co. Southeast, LLCand NLRB v. New Vista Nursing and Rehabilitation, and thus concluded that there was no valid NLRB complaint:As applied to the facts of this case, Hooks [the Regional Director] was without power to file the complaints against Kitsap in the underlying administrative matter. A petition for injunctive relief brought under Section 10(j) may be brought only "upon issuance of a complaint as provided in 29 U.S.C. § 160(b)." 29 U.S.C. § 160(j).

Gissel, 395 U.S. at 614).7 See Gissel, 395 U.S. at 607.8 See Stericycle, Inc. and Teamsters Loc. 628, 372 NLRB No. 113 (Aug. 2, 2023) (work-rules); Lion Elastomers, 372 NLRB No. 83 (May 1, 2023) (employee abusive conduct); The Atlanta Opera, Inc., 372 N.L.R.B. No. 95 (June 13, 2023) (independent-contractor test); McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023) (severance agreements).9 See Gissel, 395 U.S. at 607.10 See, e.g., Cumberland Shoe Corp., 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (6th Cir. 1965).11 See Robert Iafolla, Trader Joe’s Union Seeks Bargaining Order Under New NLRB Ruling, Bloomberg Law (Aug. 28, 2023) https://news.bloomberglaw.com/product/blaw/bloomberglawnews/exp/eyJpZCI6IjAwMDAwMThhLTNlMzctZGFlZC1hOThmLTdmZmZhMTU5MDAwMSIsImN0eHQiOiJMQk5XIiwidXVpZCI6IklzZjl1eDYzQ0NabDZMWDRrS3JqbGc9PTVYNFBBeVJ0SVVvZzhwSmwzNStoRlE9PSIsInRpbWUiOiIxNjkzMzEwODA1NDAxIiwic2lnIjoiOTlOUExDU2IwbzY5Y05CRFQ3Zk5zVitNSkpJPSIsInYiOiIxIn0=?source=newsletter&item=read-text®ion=digest ; see also 29 U.S.C.A. § 160 (West) (NLRA’s six-month statute of limitation).12 Michael A. Pavlick & Taylor J. Arluck, NLRB Imposes Strict New Limits On Employer Work-Rules, K&L GATES HUB (August 9, 2023), https://www.klgates.com/NLRB-Imposes-Strict-New-Limits-on-Employer-Work-Rules-8-9-2023.

ch as the non-disparagement provision in McLaren’s agreement, unlawfully “purport to create an enforceable legal obligation to forfeit [Section 7] rights.” The Board further held that prior tests meant to distinguish between enforceable and non-enforceable non-disclosure agreements, such as those set forth by the Board in its International Game Technology decision, failed to recognize the chilling effect any non-disparagement clause has on a member’s exercise of Section 7 rights and, as such, were insufficient. The Board’s McLaren decision effectively overrules the Board’s position set forth in its Trump-era opinions in the matters of BaylorUniversity Medical Center and International Game Technology, which found non-disparagement clauses lawful unless the provision had a “reasonable tendency” to restrain a worker’s exercise of their rights under Section 7 of the NLRA.Pursuant to federal law, the NLRB may apply to the appropriate federal appellate court to enforce any of its decisions. 29 U.S.C. § 160(e). McLaren Macomb is headquartered in Mt. Clemens, Michigan, necessitating filing the McLaren enforcement application with the United States Court of Appeals for the Sixth Circuit. While the filing of an application for enforcement is not required, statements made by Shela Khan Monroe, Vice President of Labor and Employment Relations at McLaren Health Care, give some indication the application is non-controversial and perhaps expected in this matter, explaining the application “is a typical step taken by the [NLRB] as it lacks the power to enforce its own decisions.” There is no indication that McLaren Macomb has sought to appeal the NLRB’s determination, or that the Board’s determination is otherwise stayed pending an order from the Sixth Circuit.Employers should review their separation agreement templates to determine whether they comport with the latest ruling and guidance from the Board. Ballard Spahr’s Labor and Employment Group regularly advises clients on matters concerning the N

Board to attach an award of “consequential damages” to any findings against an employer. This case was decided along party lines, with a 3-2 majority in favor of the union and finding that expanded remedies were proper. In Thryv, Inc. 372 NLRB 22 (2022), the Board expressly held that:the employer had improperly terminated the employment of six employees in violation of the National Labor Relations Act;the traditional make whole remedy of back pay and reinstatement was insufficient; andthe NLRB had the authority to order the employer to go beyond these damages and require the employer to compensate affected employees “for all direct or foreseeable pecuniary harms” that these employees suffered as a result of the termination/unfair labor practice (“ULP”).Historically, the Board restricted its remedies to back pay and reinstatement when it came to ULP charges related to improper hiring/demotion/termination. In Thryv, the Board found that section 10(c) of the National Labor Relations Act [29 U.S.C. § 160(c)] gave the Board broader discretion to issue awards that included compensation for all foreseeable harms that affected employees suffered as a result of the actions the employer engaged in that caused the ULP. The Thryv decision identified a number of examples of the type of expansive remedies that the Board can award, such as (a) expenses incurred by terminated employees in looking for new jobs, (b) compound interest, (c) late fees on credit cards caused by the inability to pay due to loss of wages, (d) penalties incurred by employees who had to undertake early retirement withdrawals to cover living expenses, and (e) costs to recover or replace repossessed property. These are only examples. Under Thryv, the Board is free to award any type of consequential damages that it determines are necessary to make employees completely whole for damages/injuries incurred as a result of an employer's unfair labor practice.The consequences of an NLRB decision upholding a ULP charge just got materia

four charges with the NLRB alleging that Constellium committed unfair labor practices. The union requested information from Constellium that it believed would be relevant to collective bargaining. The union alleged that Constellium refused to provide the requested information, and “[b]elieving the allegations had merit,” the NLRB issued an agency complaint against Constellium. Rather than proceed through agency adjudication, the union and Constellium entered into a formal settlement stipulation, which provided that the stipulation was not effective until the NLRB had approved it and that upon entry of an NLRB order, Constellium would immediately comply with the terms of the order. Constellium also agreed in the stipulation that when the NLRB sought a judgment in federal court to enforce the order, “Constellium would waive all defenses and consent to the entry of that judgment.”The NLRB approved the stipulation, issued an order reflecting the terms, and then petitioned the court under 29 U.S.C. §160(e) to enter a consent judgment against Constellium reflecting the terms of the order. The Fourth Circuit dismissed the petition holding that “[b]ecause this suit lacks adverseness, we lack jurisdiction.” In considering the jurisdictional issue, the Fourth Circuit noted the Supreme Court’s decision in United States v. Windsor, 570 U.S. 744 (2013), which reaffirmed that Article III requires “sufficient adverseness” to confer an adequate basis for jurisdiction. The court further noted that “[a]dverse interests — that minimum adverseness threshold required by Windsor — exist only when judicial action would have ‘real-world consequences’ and ‘real meaning’ for the parties.” The court noted that the NLRB “agrees that Constellium has complied with the order and continues to do so” and found that while there was adverseness between the NLRB and Constellium at some point when the matter was before the board, “that adverseness was extinguished before the case got to federal court” and dismissed th

Accordingly, the Board ordered the employer to reimburse the union for the bargaining expenses it had incurred.Recognizing that under the Act (Labor Management Relations Act, see 29 U.S.C. Sec. 160 et seq.) the NLRB has “exceedingly broad” discretioninselecting remedies for unfair labor practices,the Court rejected the employer’s defense that the NLRB lacked authority to award the union reimbursement for its bargaining expenses. The Court noted that while the NLRB does not have the authority to require reimbursement of litigationcosts, as such remedy would be punitive in nature and “thus beyond the Board’s remedial power,”the reimbursement award here was not for litigation expenses.

The Court noted that this protection was limited by Section 10(c) of the Act which states, “No order of the Board shall require the reinstatement of any individual as an employee . . .if such individual or employee was discharged for cause.” 29 U.S.C. § 160(c). The Court then evaluated the Supreme Court’s decision in NLRB v. Local Union No. 1229, IBEW, 346 U.S. 464 (1953) (known in the labor world as “Jefferson Standard” after the employer).

The National Labor Relations Board concluded that the regional director had validly exercised authority over the representation proceedings and ordered the hospitals to bargain with the Union. The Board now brings an application for enforcement pursuant to 29 U.S.C. § 160(e).The hospitals raised several arguments in opposition to the application for enforcement. First, the hospitals argued that the regional director lacked authority to act during the period when the Board did not have a quorum thereby rendering his decisions on the elections invalid.