Business law

Atkinson, Andelson, Loya, Rudd, and Romo


The political tide of labor law is moving quickly. President Biden has declared himself the most pro-union president ever. Those appointed by the president to the National Labor Relations Board (NLRB) have incrementally announced policies and provisions that promote changes and expand employee rights, while curtailing employers’ rights from rulings in the previous administration.

We find ourselves in a “labour hot summer” of strikes at levels not seen in decades. And labor activity in industries historically did not care or participate in labor activity. These labor actions inspire employees and unions in more places to pursue their goals in ways employers might view as confrontational, but with the protection of labor laws.

On August 24, the NLRB reached the final stage with changes to the “status of representation” rules that will affect the electoral process in which employees vote for union representation. After the Obama administration accelerated the electoral process and took steps to limit the ability of employers to challenge election petitions or communicate with employees about where they stand on labor issues, the Trump administration has reinstated standards similar to the way the NLRB previously did business, including labor rights. Pre-election hearings and time periods that were not an emergency rush to vote, but rather an opportunity for all parties to clarify their position and prepare for the vote.

The revised election rules that went into effect last August 24 will go into effect in late December 2023. In short, they will revert to expedited mode under the Obama NLRB rules. Those rules established a set of procedures, which some have dubbed “ambush elections.” The ability of employers to prepare themselves for workplace elections or to communicate with the workforce about what is happening has been compromised. Meanwhile, the rules compromised employee privacy by requiring that a wide range of employees’ personal contact information be disclosed to the organizing union.

The day after the revised final rules for election cases were announced, on August 25, the NLRB announced its ruling on the election case. Cemex Pacific Building Materials, LLC issue. This case involved a mixture of allegations of unfair labor practices and an election petition. Numerous allegations that the employer engaged in acts of interference with protected rights and anti-union discrimination were made against employees. The NLRB also sued claiming that the employer’s conduct amounted to an unlawful refusal to bargain with the organizing union. The basis for that argument was a judgment made decades ago, Joey Silk, indicating that the employer must be required to recognize and negotiate with the union that established majority support through license cards, even in the absence of an NLRB election, where the employer has not complied with labor laws. To be sure, the NLRB has in some limited cases sought “compromising orders” based on authorization cards where the employer’s unfair labor practices arguably prevented a fair election (based on a US Supreme Court ruling known as Jessel packing).

with the cemex The verdict, the NLRB has flipped the organizing process. Use Joey Silk As a platform, the claim fails Jessel packing Negotiation efforts for, the Board Committee majority established a new framework. Essentially, the unions will be able to rely on mandate ticket majorities to demand recognition and bargain without holding elections. The onus will shift to the employer to either recognize and negotiate with the union or to file an election petition with the NLRB. Any misconduct on the part of the employer may lead to the invalidation of the electoral process and cause the electoral process to be concluded. In this case, the employer must negotiate with the union based on the majority signature on the authorization cards. The union will enjoy the full protection of the negotiating relationship and related duties under the National Labor Relations Act.

This new cemex The standard ultimately eliminates the need for unions to file election petitions. If an election petition is filed, the electoral process will move quickly and with less sensitivity to issues that may arise in response to the petition.

Employers should expect unions to collect cards and present them to employers when unions feel ready to apply for recognition. Often, unions view employers as vulnerable, such as during a period of change or challenge and when it is easy to pressure the employer into accepting the arrangement. Whereas in recent decades demands for recognition were a precursor to the union filing an election petition, employers must expect that this will likely not be the case any longer. If the NLRB blesses ticket-based claims in this way, campaign time and effort will be seen as slowing down and detrimental to organizational efforts. In short, why do unions want or need to vote?

Unions are likely to feel encouraged to challenge any potential issue with their employer’s communications and procedures as unfair labor practice by filing a claim with the NLRB. It has always been easy to file a complaint, as it is a one page form that can be pulled from www.nlrb.govfilled out and submitted electronically to initiate a government investigation of the accused employer.

Employers facing recognition demands may feel compelled to seek secret ballot elections, but if unions can thwart this by presenting an indictment and evidence of an alleged illegal statement or action, the NLRB will likely not be inclined to proceed with the election. As such, the NLRB’s rule changes cemex The provision together provides unions with a clear path to the negotiating table to pursue agreement on wages, hours, working conditions, and other provisions normally found in a collective bargaining agreement on behalf of a newly organized unit of employees.

As the NLRB continues to challenge employer communications, procedures, and workplace policies, employers need to take steps to train management and remain law-abiding. Equally important for recognizing problems in the workplace is staying in touch with employees. With the NLRB vacillating on applicable legal standards, the existence of the rule of law but also stating that they want it to be something else, on many issues this is a volatile time for business law and one that will be difficult to navigate in the foreseeable future. future.

Existing NLRB policies and rulings will apply in future cases against a wide range of employers nationwide. The right to seek review in the courts, and the resources of affected employers to seek review of NLRB policies and procedures, will of course vary from case to case. They will depend on the specifics of each case.

With decades of experience working with employers on employment law and NLRB issues, our Employment Relations team is uniquely positioned to assist employers with these and other employment matters. If you have any questions, you are welcome to contact us.

This AALRR publication is for informational purposes only and should not be relied upon to reach a conclusion in a particular area of ​​law. The application of the legal principles discussed may vary greatly in individual situations. Receipt of this or any other posting from AALRR does not create an attorney-client relationship. AALRR is not responsible for inadvertent errors that may occur during the publishing process.

© 2023 Atkinson, Andelson, Loya, Rudd & Romo


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