On Wednesday, the Eleventh Circuit significantly restored the NLRB’s power to stop unlawful litigation by vacating a Trump-era Board ruling. Prior to 2019, the NLRB enjoyed wide authority to block litigation if the result sought by the litigant would violate federal labor law. In 2019, however, when Anheuser-Busch filed a motion to compel arbitration in a former union employee’s racial discrimination lawsuit even when the company’s arbitration program didn’t apply to union workers, the Board allowed the employer’s filing to go forward. Finding that the motion did not have illegal aims, the Board advanced a novel theory that there must be an additional illegal underlying act, beyond the filing in question, before the Board can halt the employer’s litigation. The Eleventh Circuit vacated this problematic ruling on Wednesday, criticizing it as “eviscerat[ing]” the NLRB’s ability to stop litigation without giving a “hint” of what kind of action would qualify under its novel rule. The result, the Court said, was essentially to allow all litigation, even those with unlawful objectives, to go forward. The case has been sent back to the Board to determine whether Anheuser-Busch’s motion to compel arbitration can now be blocked.
An NLRB ALJ ruled on Wednesday that Fred Meyer had engaged in unlawful discrimination on the basis of political beliefs when they sent home certain employees wearing “Black Lives Matter” apparel and instructed the rest of the employees that such apparel was prohibited. Administrative Law Judge Mara-Louise Anzalone concluded that the Fred Meyer employees had acted in a concerted manner by organizing “listening sessions” on the topic of racism following the killing of George Floyd in 2020 and sharing apparel with one another. The employer was ordered by the Board to stop enforcing its dress code policy related to Black Lives Matter apparel.
Workers at the first unionized Apple store in suburban Baltimore are negotiating to demand higher pay, better benefits, and other business practices that have the potential to impact the company’s historically tightly-controlled retail experience. Represented by the International Association of Machinists & Aerospace Workers, these employees are set to attend bargaining sessions with Apple on May 3 and 4, 2023. Among the proposals are 10% wage increases, changes to overtime and vacation policy, and a tipping system that would let customers offer gratuities to employees.
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