Over the past month, the National Labor Relations Board (NLRB or Board) has issued several significant decisions, including expanded scrutiny of employer policies and handbooks, an expansion of what constitutes “protected concerted activity” and two new paths to unionization. The NLRB also issued a final rule that shortens the timeline for union elections. These decisions are significant departures from the Board’s existing case law, and SMACNA contractors should take note.
Assessing Lawfulness of Work Rules
In Stericycle, Inc., 372 NLRB No. 113 (2023), the Board adopted a stricter standard for assessing whether employer work rules infringe on employees’ rights under Section 7 of the National Labor Relations Act (NLRA or Act).
Under the new standard, if a reasonable employee could conceivably interpret a rule to infringe upon Section 7 rights, then the rule is presumptively unlawful.
Under the new rule, the Board will read the rule from the perspective of an “economically dependent employee who is contemplating engaging in Section 7 activity,” rather than merely a “reasonable employee.” An employer’s intent in drafting the rule is immaterial. The Board also will review each rule on a case-by-case basis.
More Protections for Concerted Activity
In Miller Plastic Products Inc., 372 NLRB No. 134 (2023), the Board returned to the “totality of the circumstances” test for determining whether an employee who intends to induce group action by fellow employees engages in protected concerted activity under Section 7 of the NLRA.
In American Federation for Children Inc., 372 NLRB No. 137 (2023), the Board held that concerted advocacy by employees on behalf of non-employees (e.g., former employees) is protected by Section 7 of the NLRA when the concerted action can benefit the statutory employees.
Unilateral Changes, Past-Practice Defense
In Tecnocap, 372 NLRB No. 136 (2023), the Board held that 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.
Two New Pathways to Unionization
In Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), the Board created a new framework for unions to seek representational status under the NLRA. The decision creates two new mechanisms for unions to represent workers via “card check” — and without conducting a secret-ballot election.
The first method is for the union to obtain “union authorization cards” from a majority of workers and demand recognition from the employer. If the employer fails to act within 14 days of the union’s demand, then the NLRB will consider the employer to have waived its right to a secret-ballot election and, if the union truly represents a majority, then the employer will have violated the NLRA by failing to bargain with the union.
The second method is if the employer commits “any” unfair labor practice (“ULP”) that “requires setting aside the election.” Under Cemex, the Board will order the employer to bargain with a union — even if the union lost the secret-ballot election. If the Board determines the employer committed “any” ULP, that invalidates the election.
“Quicky Election” Rules Return on Dec. 26
On Aug. 25, the Board published a Final Rule incorporating several changes to its procedures governing union representation elections that are designed to shrink the timeline for conducting union representation elections.
The amendments include scheduling pre-election hearings 10 days sooner, limiting the types of issues that can be litigated at a pre-election hearing and eliminating the requirement that parties be permitted to file briefs following a pre-election hearing.
The NLRB’s new election rules are effective Dec. 26.
Grant Collins is a specialist in labor and employment law at Felhaber Larson. Reach him at email@example.com.