More NLRB Decisions Change the Employer Landscape
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APPLIES TO All Employers Subject to the NLRA |
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Quick Look
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Discussion
The National Labor Relations Board (NLRB) has been very active recently. There have been a number of recent rulings impacting union elections, bargaining, and the overall determination of concerted activity. Even where employers may not currently have a union presence, the changes make it easier for a union to be elected. In a time where unions are seeing a significant resurgence, employers should be aware of recent changes.
“Quickie” Union Elections. As of December 26, 2023, “quickie” union elections will return to their 2014 status. Pre-election hearings will generally be scheduled to open approximately 10 days sooner than under the current 2019 rule. The new rule eliminates the existing 20-day period between the direction of an election and the election itself in favor of elections being held on the “earliest date practicable.” Pre-election hearings will be limited to issues regarding whether the election should take place. Litigation of any eligibility and inclusion issues will be delayed post-election unless those issues must be resolved to determine whether an election should even be held. The employer’s Statement of Position responding to the representation petition will generally be due approximately three days sooner under the new rule, and unions may respond verbally at the start of the pre-election hearing rather than filing a written response.
Representation Election Proceedings. On August 25, 2023, in Cemex Construction Materials Pacific, LLC, the NLRB announced a new framework for determining when employers are required to bargain with unions without a representation election. When a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election. However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and—rather than re-running the election—the Board will order the employer to recognize and bargain with the union.
Employer’s Duty to Bargain. On August 26, 2023, in Wendt Corporation, the NLRB overruled Raytheon Network Centric Systems (2017) in part saying that allowing employers to justify discretionary unilateral changes as a “past practice” during a contractual hiatus or during negotiations for a first contract was inconsistent with Supreme Court precedent and the National Labor Relations Act (NLRA). That same day, in Tecnocap, LLC, the NLRB overruled another part of Raytheon saying an employer’s past practice of unilateral changes that was developed under a management-rights clause in a collective-bargaining agreement cannot authorize unilateral changes made after the agreement expires and while bargaining for a new agreement is under way.
Protections Advocating for Nonemployees. On August 26, 2023, in American Federation for Children, Inc., the NLRB reversed its 2019 decision in Amnesty International, returning to longstanding precedent that concerted advocacy by statutory employees on behalf of nonemployees is protected by the NLRA when it can benefit the statutory employees. “Standing in solidarity can be a protected act regardless of the employment status of those you stand with—the question is simply whether, in helping others, employees might help themselves and get help in return.”
Concerted Activity Test. On August 25, 2023, in Miller Plastic Products, Inc., the NLRB returned to the “totality of the circumstances” test for determining whether employees intending to induce group action by fellow employees are engaged in protected concerted activity under Section 7 of the NLRA. Section 7 establishes the right “to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” “To be protected under Section 7 of the Act, employee conduct must be both ‘concerted’ and engaged in for the purpose of ‘mutual aid or protection.’” The Board overruled Alstate Maintenance, LLC, (2019), which the Board said had narrowed the test for determining concerted activity.
Action Items
- Review the Quickie Union Election final rule and fact sheet.
- Review policies and procedures for compliance.
- Have appropriate personnel trained on the definition of “concerted activity” as it impacts potential discipline related to employer policies.
- Review changes with legal counsel for compliance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase