The National Labor Relations Board (NLRB) has released several union-friendly decisions in the past few weeks that may significantly alter the nation’s labor landscape in favor of unions. When taking office, NLRB General Counsel Jennifer Abruzzo outlined that she wanted to overturn roughly 50 board precedents. The majority Democratic Board has already adopted several of her desired changes to labor law, including protections for workers using profanity and limiting handbook provisions that could interfere with employees’ rights to organize.
In late August 2023, multiple decisions were announced. Perhaps the biggest departure from current standards is the NLRB’s August 25, 2023, decision in Cemex Construction Materials Pacific, LLC. The National Labor Relations Act (NLRA) generally requires employers to bargain with employees’ selected representatives following a representation election. However, in Cemex, the NLRB held that employers may be required to bargain with a union even if a majority of employees did not vote for representation.
Employers must recognize a union and bargain with that union if it has been designated as the bargaining representative by a majority of employees, unless the employer files a petition for an election with the NLRB. If, however, the employer commits an unfair labor practice that requires setting aside the petitioned-for election, the Board will dismiss the petition for the election. Under Cemex, instead of a new election, the NLRB will order the employer to bargain with the union. The Board explained that a new election would not be adequate. The unfair labor practice under such circumstances requires the Board to instead order the employer to bargain with the union. This Employers Council whitepaper describes actions considered unfair labor practices.
In a footnote, the NLRB explained that an unfair labor practice requires an election to be set aside when an employer engages in such a practice during the “critical period” between the filing of the election petition and the election. The Board will consider all relevant factors, such as the number of violations and their severity, in determining whether this standard is met and the election must be set aside.
Many believe this ruling will be subject to judicial scrutiny, creating a split between appeal courts and, therefore, will ultimately arrive before the U.S. Supreme Court.
Here are some additional late-August decisions:
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The Board issued a ruling in American Federation for Children that held the NLRA protects employees who advocate on behalf of independent contractors and other individuals who may not be employees as long as their advocacy also benefits their own interests. This will create an increase in protected activity for both unionized and non-unionized employers.
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The Board restored an expansive legal test for determining what is protected concerted activity when it returned to the standard from its 1986 decision in Meyers Industries Inc. It uses a fact-specific examination that looks at the totality of the circumstances instead of a Trump-era checklist of factors. This will increase the range of worker activities shielded by federal labor law. It also clarified that an individual’s protests can be protected if there is a connection to a group.
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We recently wrote about the new election rules that take effect December 26, 2023, which will make union elections easier.
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A pair of decisions by the Board restricted employer actions during the time between contracts or before a first contract. Tecnocap LLC clarified that an employer can’t make unilateral changes to working conditions during the period between an expired contract and a successor agreement. Wendt Corp. returned the standard to 1962’s Katz decision, which permits unilateral conduct only when it’s consistent with a long-standing practice, when it’s essentially based on preexisting standards and guidelines and is not a matter of choice. Further, an employer can’t defend unilateral changes by citing past practices in place before its workers were unionized.
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In Polymer Corp., the Board denied a request by Abruzzo to overturn Tschiggfrie Properties. The decision outlined how to determine if an employer retaliated against employees for their protected activity. The Board did not overturn Tschifffrie; it just declared it irrelevant. It clarified that animus and a causal connection between that animus and the employer’s action, both before and after Tschiggfrie, is determined by several factors. These factors include the timing of the action in relation to the protected conduct; contemporaneous unfair labor practices; shifting, false, or exaggerated reasons offered for the action; failure to conduct a meaningful investigation; departures from past practices; disparate treatment of the employee; and reliance on pretextual reasons for the action. This loosens the definition of retaliation yet gives a more concrete framework for employers than the other decisions by the Board.
The NLRB’s late-August decisions are probably just the beginning of changes to the status of U.S. labor law. Some more cases expected soon include the following:
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Parkside Cafe: The Board will decide if protesting over social justice causes is protected by federal labor law.
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Home Depot: The Board will decide if it should overturn gag orders for internal workplace investigations.
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Inland Waters Pollution Control: The NLRB could strike down the long-standing ruling that permits employers, for economic reasons, to permanently replace workers on strike.
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Ralph’s Grocery: The Board will consider whether to make confidentiality requirements in arbitration agreements unlawful.
Decisions by the NLRB impact both unionized and non-unionized employers. While remedies under the NLRA are limited, in recent years, the NLRB has begun expanding the definitions of the remedies allowed. With all of these decisions, the NLRB must look to the courts for enforcement. The court system can move slowly, but eventually, all of these decisions are liable for judicial review.
If you have any questions about what the recent decisions mean for your organization, please contact Employers Council.
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