01/21/2025: NLRB Chair Switches to Republican Control
A brand new outline of law and procedure in representation cases.
Trump named Republican Marvin Kaplan the Chair of the NLRB. This is the first item on my Timeline of Notable NLRB Events During Trump's Second Term, a post that I will constantly update over the next four years.
Outline of Law and Procedure in Representation Cases (January 2025)
The NLRB GC released a new 536-page outline of law and procedure for representation cases, i.e. for cases involving the certification of unions. The last comprehensive outline of this sort was released in 2017. So this is a big deal for NLRB practitioners and others involved in union organizing.
Guidance Memorandum on Representation Case Procedure Changes, OM 25-04, (OM Memo)
This memo outlines recent changes to Part II of the NLRB Casehandling Manual, the part that deals with representation case procedures.
Under the "Fair Choice-Employee Voice" section, three major policy changes are outlined. First, the blocking charge policy has been restored to its pre-2020 form, allowing Regional Directors to delay elections when unfair labor practice charges are filed that could affect employee free choice. Second, the Board's voluntary recognition bar has been reinstated, removing the 45-day window during which employees could challenge an employer's voluntary recognition of a union. Third, the rules for construction industry bargaining relationships have been modified to help unions establish more stable Section 9(a) relationships instead of temporary Section 8(f) pre-hire agreements.
The memo provides detailed guidance on voter lists in representation cases, stating that legal names are not required - instead, workplace names should be used, though both legal and workplace names can be listed if needed. For mail ballot elections, new procedures allow voters to pick up voting kits in person at Regional offices if they're concerned about mail timing. Voters can complete ballots in private spaces at Regional offices and drop them in secure receptacles during business hours.
Regarding RM petitions (filed by employers following union recognition demands), the memo specifies that these must reference the union's claimed unit and include evidence of the recognition demand. If both RC and RM petitions are filed close together, they should be consolidated, but later petitions may be held in abeyance.
The memo concludes with guidance on jurisdiction between the NLRB and National Mediation Board, particularly noting the Swissport Cargo Services case which found that non-airline entities serving air carriers are not subject to the Railway Labor Act. The NLRB will only refer very close jurisdictional cases to the NMB for advisory opinions.
Salem Village Nursing & Rehabilitation Center, LLC, 374 NLRB No. 18, 13-CA-336228 (Published Board Decision)
Salem Village Nursing & Rehabilitation Center operated a nursing and rehabilitation facility in Joliet, Illinois. On January 11, 2024, the company informed United Food and Commercial Workers International Union, Local 1546 that it would permanently close its facility and lay off all employees by April 10, 2024.
The union had represented a bargaining unit of nurses aides, orderlies, housekeeping employees, laundry employees, dietary employees, maintenance employees, and other non-professional staff since 2002. When the closure was announced, the union requested effects bargaining and asked for information about employees' wages, benefits, and contact details.
The company proceeded with laying off all unit employees around March 15, 2024. It did not engage in effects bargaining with the union or provide the requested information. After charges were filed, the NLRB's General Counsel issued a complaint alleging violations of Section 8(a)(5) and (1) of the National Labor Relations Act. The company failed to file an answer to the complaint.
On January 17, 2025, the NLRB issued a default judgment finding the company had violated federal labor law by refusing to bargain over the effects of the closure and failing to provide relevant information to the union. The Board ordered the company to engage in effects bargaining if requested and to provide backpay to employees based on the Transmarine formula - which requires wages to be paid from 5 days after the Board's order until bargaining obligations are met. The company was also ordered to provide the union with the previously requested employee information and to mail notices about the violations to former employees since the facility had closed.
The Board's order included additional remedies requiring the company to compensate employees for any adverse tax consequences from receiving lump-sum backpay and to file reports properly allocating the backpay across tax years.
Significant Cases Cited
Transmarine Navigation Corp., 170 NLRB 389 (1968) - Established the framework for effects bargaining backpay remedies when an employer fails to bargain over effects of a facility closure
Melody Toyota, 325 NLRB 846 (1998) - Clarified application of Transmarine remedy
Kentucky River Medical Center, 356 NLRB 6 (2010) - Established that interest on backpay should be compounded daily
AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016) - Required employers to compensate employees for adverse tax consequences of lump-sum backpay awards
Siena Farms, LLC, 01-RC-332190 (Regional Election Decision)
Siena United Farm Workers (the Union), sought to represent a unit of approximately eleven employees, including apprentices, field crew, assistant harvest managers, assistant production managers, assistant mushroom managers, assistant distribution managers, mushroom managers, flower managers, distribution managers, and greenhouse managers.
The Union initially sought certification through the Commonwealth of Massachusetts Department of Labor Relations, which on December 5, 2023, issued a letter stating that it will take no further action with respect to the petition unless and until the Board specifically declines jurisdiction over all or part of the unit described above.
The key question in the case is whether the workers in question are agricultural workers and therefore exempt from NLRB jurisdiction under Section 2(3) of the NLRA. If they are, then the Union can proceed to be certified under MA state law. If they aren’t, then the Union must be certified according to the NLRB process.
After analyzing each job category, the Regional Director found:
Most positions (apprentices, field crew, and most managers) primarily performed agricultural labor through direct farming activities. These workers were deemed agricultural laborers exempt from NLRB jurisdiction.
Distribution managers split their time between agricultural and non-agricultural work. They were found to be covered by the NLRA only for their non-agricultural duties.
Since the Union declined to represent any unit other than exactly what it petitioned for, and most workers were found to be agricultural laborers, the Regional Director dismissed the petition.
The Regional Director's decision focused strictly on whether each position's duties qualified as agricultural labor under the law, examining factors like:
Time spent on farming versus non-farming tasks
Whether work was performed on the farm
Whether workers handled outside products
Whether products were significantly altered from their natural state
Significant Cases Cited
Farmers Reservoir Co. v. McComb, 337 U.S. 755 (1949): Defined agriculture as including both primary and secondary farming activities.
Pictsweet Mushroom Farm, 329 NLRB 852 (1999): Held that mushroom cultivation activities are agricultural under the FLSA.
Light’s Tree Co., 194 NLRB 229 (1971): Determined minor non-agricultural tasks do not remove employees from the agricultural laborer exemption.
Holly Farms Corp. v. NLRB, 517 U.S. 392 (1996): Distinguished agricultural work from industrial processing activities.