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I went to sleep with gum in my mouth and now there’s gum in my hair and when I got out of bed in the morning I tripped on the skateboard and by mistake I dropped my sweater in the sink while the water was running and I could tell it was going to be a terrible, horrible, no good, very bad day.[1]
It may not have been gum in the hair or a wet sweater, but thanks to a flurry of decisions issued by the National Labor Relations Board, the last week of August 2023 was indeed a very bad week for employers.
Before getting into the details, it’s worth mentioning why the National Labor Relations Board (NLRB or Board) packed so many significant decisions into one week at the end of the summer. As background, the NLRB is comprised of five members who are nominated by the President and confirmed with the advice and consent of the Senate. Because Board members are political appointees, it is long-standing practice that a majority of sitting NLRB members are politically aligned to the current Presidential administration.[2] But unlike federal judges, who are appointed for life, NLRB members are appointed for only five-year terms, and when a Board member’s appointment is about to expire, it is not uncommon for the Board to release a large number of decisions on significant legal issues.
That’s what happened here. Between August 24 and 26, 2023 – just days before Member Gwynne Wilcox’s term as a Board member was set to expire on August 27, 2023,[3] the NLRB announced new election rules and issued six significant union- and employee-favorable decisions that, among other things, make it significantly easier for unions to gain the right to represent employees, redefine the standard for what constitutes concerted activity subject to protection under the National Labor Relations Act (NLRA or Act), and substantially heighten employers’ collective bargaining obligations. Notably, most of the NLRB’s late August decisions address issues that NLRB General Counsel (GC) Jennifer Abruzzo highlighted in her 2021 memorandum outlining her litigation priorities, which by and large focus on overturning a number of perceived pro-employer NLRB precedents.
Usually, we try to keep our blog posts brief, but here, given the magnitude of the NLRB’s recent actions, by necessity we’re going to take a deeper dive, analyzing the following developments:
- New Election Rules
- Unions Without Elections: CEMEX Construction Materials Pacific, LLC
- NLRB Clarifies Wright Line Mixed-Motive Standard: Intertape Polymer Corp.
- NLRB Eases Test for Concerted Activity: Miller Plastic Products, Inc.
- NLRB Limits Past Practice as a Justification for Unilateral Changes: Wendt Corporation and Tecnocap LLC
- NLRB Says Employees Are Protected When Advocating for Nonemployees: American Federation for Children, Inc..
Unions Get Faster Elections: NLRB Majority Implements New Election Rules
On August 26, 2023, the NLRB issued a direct final rule – bypassing the notice and comment procedure usually followed when administrative agencies seek to implement new regulations – amending a set of earlier rules implemented by the NLRB in 2019. The net effect of the new rules will be to substantially shorten the period between the filing of a union election petition and the holding of an election.
- Expediting Pre-Election Hearings. When a petition is filed, a pre-election hearing is scheduled to address issues such as the appropriateness of the petitioned-for bargaining unit and employee eligibility. Under 2019 rules, these hearings were scheduled to be held 14 business days after the Notice of Hearing issues (it typically issues the same day on which a union election petition is filed). Under the new rules, hearings will now be scheduled to begin on the eighth calendar day after issuance after the hearing notice, thus up to ten days sooner than under the 2019 rules. The new rules also substantially limit the discretion that NLRB Regional Directors possess to postpone pre-election hearings.
- New Requirements for Statements of Position. Under current rules, an employer is required to provide a Statement of Position setting forth any disagreements with the bargaining unit proposed by the union, and raising any other issues relevant to the proceeding, eight business days after the petition is filed. The new rules will require that employers file their position statement by noon on the day immediately preceding the pre-election hearing. Although this sounds like employers will have more time to prepare, in fact, because of the expedited hearing timing discussed in the preceding bullet, this means that employers will have three fewer days to investigate and formulate positions with respect to a union petition than under the 2019 rules. The new rules also relieve the petitioning union, which currently is required to file its own Statement of Position in response to the employer’s position statement, from filing any position statement. Instead, the union only needs to provide an oral response to the employer’s Statement of Position at the pre-election hearing.
- Notice Posting Deadline Moved Up. Current rules require that an employer post in the workplace a “Notice of Filing of Petition” five business days after a petition is filed. The new rules knock off three business days, thus requiring posting on the second business day after the petition filing.
- Limiting the Scope of Pre-Election Hearing. Current rules permit an employer to litigate the appropriateness of the unit sought by a union’s petition as well as whether certain groups or individual employees are eligible to vote. Under the new rules, employers will not be permitted to raise these important questions prior to an election, and instead they will be deferred to post-election proceedings and even then only if they could affect the outcome of the election.
- No Right to File Post-Hearing Briefs. Parties currently have a right to file a post-hearing brief summarizing the evidence and making arguments in support of their respective positions. The new rules only allow for oral argument at the pre-election hearing and provide that parties may only file post-hearing briefs with “special permission” of the NLRB Regional Director.
- No 20-Day Waiting Period. Under the 2019 rules, elections were not to be held earlier than 20 business days after an NLRB Regional Director’s decision and direction of election. This aspect of the 2019 rules had been enjoined by judicial order and thus was not enforced by the NLRB, but the new rules entirely eliminate this 20-business day waiting period and mandate that NLRB Regional Directors schedule elections on “the earliest date practicable.”
The impact of these rule changes is that elections will be held more quickly than under the 2019 NLRB election rules. Since unions typically file election petitions when they are at the peak of employee support for unionizing, amended rules providing for more rapid elections – thereby shortening the already-brief period in which employers can provide important information to their employees concerning the realities of unions and collective bargaining and provide their perspective to employees on unionization – heavily favor unions.
These rule changes will go into effect and will apply to union election petitions filed on or after December 26, 2023.
Unions Without Elections: NLRB Dumps 50+ Years of Precedent
Unions historically have had two paths by which they could represent private sector employees: either (1) unions could request voluntary recognition from an employer upon presentment of proof that a majority of that employer’s employees desire to be union-represented, or (2) they could file a petition for a secret ballot election with the NLRB and try to win a majority of valid employee votes cast in that election.
For the past 50+ years, employers receiving a request from a union for voluntary recognition have been permitted to decline to do so, even if they lacked any doubt as to the union’s majority status claim, and instead require the union to follow the NLRB-administered election process. And, by and large, that is precisely what most employers have done, thereby permitting employees to make their choice on representation through a secret ballot election to ensure that they make that decision in an atmosphere free from interference or coercion. Under this process, if a petitioning union secured a majority of votes cast in that election, it was certified as the employees’ representative. (In rare circumstances, if less than a majority of employees voted in favor of union representation but the employer committed egregious unfair labor practices that would frustrate a free and fair rerun election, the NLRB could order the employer to recognize the union even though a majority of employees did not vote in favor of representation. This is called a Gissel bargaining order.)
In its August 25, 2023 decision in CEMEX Construction Materials Pacific LLC, the Democrat members of the NLRB overruled the cases that for decades had permitted employers to decline a request for voluntary recognition and instead require that a union seeking to represent employees secure that right through a secret ballot election. Under the framework announced in CEMEX, now, if a union presents what it contends is proof that an uncoerced majority of an employer’s employees wish to be represented, the employer must either voluntarily recognize the union or, within two weeks, file a petition for an election (what is referred to as an “RM” petition). Thus, unions have been relieved of the requirement to seek an election, and the burden of contesting union representation has been shifted to the employer.
Were that change not enough, the NLRB also concluded in CEMEX that if an employer files an election petition but thereafter engages in any conduct that could be deemed serious enough to require that the election results be set aside (which, prior to CEMEX, would mean the election would be rerun), then the employer’s petition will be dismissed and the employer will be forced to recognize and bargain with the union, with no election ever taking place.
How would this play out in the real world? Imagine the following hypothetical.
- A union decides to attempt to organize 80 production and maintenance employees of an employer – we’ll call it “Acme, Inc.”
- Union organizers contact Acme’s employees and ask them to sign union authorization cards. Employees ask questions about those cards, and as frequently happens in labor law-land, union organizers mispresent the legal effect of signing a card, misleading employees into believing that their signing a card is only an expression of interest in learning more about the union, and that they will still have the opportunity to decide whether they truly want union representation in a secret ballot NLRB election.
- Out of Acme’s 80 employees, 50 – a majority – sign authorization cards.
- The union sends a letter to the Human Resources director of Acme, indicating that a majority of its production and maintenance employees have signed authorization cards expressing that they wish to be represented by the union, and requesting that Acme voluntarily recognize the union.
- Under pre-CEMEX NLRB precedent, Acme could have lawfully declined to recognize the union, in which case the union would have had to file a petition with the NLRB for an election. Under the CEMEX framework, however, Acme will have to file its own petition with the NLRB within two weeks of the union’s request for voluntary recognition if Acme does not want to voluntarily recognize the union. If it doesn’t, then under the new CEMEX framework, Acme, by its inaction, will be required to voluntarily recognize the union as the employees’ representative.
But wait! There’s more!
- Let’s assume Acme knows about the CEMEX decision, so it files a petition with the NLRB.
- Before an election is held, the union files unfair labor practice charges against Acme, claiming that Acme unlawfully threatened employees with adverse consequences if they voted in favor of the union and made promises of unspecified benefits to employees if they voted against the union.
- If the NLRB determines that such conduct occurred – which, if an election had been held, would be sufficient to set the election aside and require a rerun election – the NLRB now would determine that no election should be held at all, and it will instead dismiss the employer’s petition for an election and order that Acme recognize and bargain with the union.
All of this, based on authorization cards employees may have signed without a clear understanding of what they were signing and based on allegations against which an employer may be substantially limited defending.
So, in this hypothetical but entirely plausible fact pattern, all 80 of Acme’s production and maintenance employees – including the 30 employees that did not sign authorization cards and all of the employees who did sign cards with the understanding that they were only intended to express interest in learning more about unionization and to facilitate an election – would be represented by the union even though no election was ever held.
One aspect of the CEMEX decision that doesn’t seem to be getting much attention is how much it incentivizes a union to file unfair labor practice charges once an employer files a petition for an election. It is easy to envision a union claiming that, after a demand for recognition, an employer made unlawful threats or promises, or interrogated employees about their union activities, to forestall an election, which in turn would allow the NLRB to conclude that no election should be conducted at all, that the employer’s petition should be dismissed, and the employer should be required to recognize and bargain with the union as the employees’ representative – even though employees never had the opportunity to determine in a secret ballot election, free from the pressures and sales pitches that unions often make when soliciting authorization cards, whether they indeed wish to give their individual voice away. (Indeed, one union has already made a request for a CEMEX bargaining order.)
If there is a silver lining to CEMEX, it is that the NLRB did not go as far as the NLRB General Counsel urged. GC Abruzzo had asked the Board in CEMEX to reinstitute the long-ago discarded Joy Silk standard, under which an employer presented with a request for voluntary recognition could not refuse to recognize a union unless the employer possessed an evidence-based “good faith doubt” as to the union’s claim of majority status.
CEMEX fundamentally changes the union representation election paradigm in a way that enormously favors unions. Employers must familiarize themselves with the new approach under CEMEX and be prepared to respond accordingly.
NLRB Clarifies That The Wright Line Mixed-Motive Standard Remains Unchainged
For decades, the NLRB has applied the standard from a case called Wright Line to cases in which an employer has taken adverse action against an employee allegedly for engaging in protected Section 7 activity and the case-dispositive issue is whether the employer’s action was motivated by legitimate, business-related reasons or was instead motivated by the employee’s Section 7 activities (and therefore unlawful). Under the Wright Line standard, when the GC alleges that an employer took unlawful action against an employee, the GC initially bears the burden of showing that: (1) the employee engaged in union or other protected concerted activity; (2) the employer knew of that activity; and (3) the employer harbored animus towards that activity. If the GC makes this showing, the burden shifts to the employer to show that it would have taken the same action even if the employee had not engaged in the protected activity.
Over the years, some post-Wright Line decisions suggested that the GC’s initial burden included a causation element. That is, in order to carry its initial burden, not only did the GC need to allege protected concerted activity, employer knowledge of that activity, and employer hostility to it, but the GC also had to show that it was the employer’s hostility that caused it to take the action that it did. In addition, and adding more confusion to the application of the Wright Line standard, other NLRB decisions suggested that evidence of employer animus did not have to relate to the employee’s specific protected activity, and, therefore, any evidence – even circumstantial evidence of generalized hostility to unions or protected concerted activity – was sufficient to satisfy the GC’s burden.
In 2019, the NLRB decided a case called Tschiggfrie Properties, Ltd. In that case, the Board tried to clarify the Wright Line standard, explaining that, even though causation was not a required element, the GC nonetheless must present evidence that establishes some connection between the employee’s Section 7 activity and the employer’s adverse action. Tschiggfrie also clarified that, even though evidence of employer animus can be direct or circumstantial, the record of the case as a whole must support a finding of specific animus; evidence of general animus alone is insufficient.
In Intertape Polymer Corp., the GC argued that Tschiggfrie had improperly imposed a more stringent test in mixed-motive cases than is required under Wright Line. However, the Board rejected the GC’s interpretation of Tschiggfrie, confirming that the application of the Wright Line standard in that case was indeed correct. Nonetheless, to resolve any ambiguity, in Intertape Polymer, the NLRB clarified that in mixed-motive cases, the Board will look to whether the overall case record supports a reasonable inference that the adverse action taken by the employer was motivated by the employee’s Section 7 activity and not by the legitimate explanation proffered by the employer. More specifically, the Board explained that evidence of improper motive still may be shown by either direct or circumstantial evidence, and that the Wright Line standard does not require that the circumstantial evidence of employer animus be specifically directed at the employee’s own protected activity, or even against the specific employee as to whom the employer took adverse action. In other words, the Board clarified that the GC need not demonstrate a direct causal link between the protected activity and the challenged employer action. The Board did note, however, that, in some cases, more particularized evidence of intentional discrimination may be necessary, whereas in other cases, more general evidence of animus may suffice. The Board’s Intertape Polymer decision thus resolved that Tschiggfrie did not change Wright Line, but also clarified that the GC can carry the initial Wright Line burden by using generalized evidence of employer hostility to union or other protected concerted activity.
NLRB Makes It Easier To Show That Individual Employee Comments Or Actions Constitute “Concerted” Activity
The NLRB’s August 25, 2023 decision in Miller Plastic Products, Inc. held that an employer violated the NLRA by discharging an employee who had expressed concerns at a work meeting about the employer’s decision to remain open during the early months of the COVID-19 pandemic. The Board found that his termination violated Section 8(a)(1) of the Act, which makes it an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of” their right to engage in protected concerted activity with others for purposes of “mutual aid and protection.” Miller Plastic dealt with the scope of “concerted” activity.
Generally, whether an employee’s activity is “concerted” depends on whether the employee’s actions can be linked to his or her coworkers. Under longstanding NLRB precedent, “concerted” activity means activity “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” This includes situations in which individual employees attempt to initiate, induce, or prepare for group action, or to bring group complaints to management’s attention, but it generally excludes situations in which an employee lodges a personal grievance, even if he or she does so in a group setting.
In 2019, the then-Republican majority NLRB issued its decision in Alstate Maintenance LLC. Overruling an Obama-era Board decision that had held that an employee who makes a complaint in a group setting is per se engaged in concerted activity, the Board in Alstate held that an individual employee’s statement in a group setting is concerted activity only if, under the totality of the circumstances, it can reasonably be inferred that the employee was seeking to initiate, induce, or prepare for group action by making the statement, taking into account five factors that it said “would tend to support drawing such an inference:”
- The statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment;
- The decision affects multiple employees attending the meeting;
- The employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely to ask questions about how the decision has been or will be implemented;
- The speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker; and
- The meeting presented the first opportunity employees had to address the decision.
The Democrat-majority Board in Miller Plastic rejected Alstate’s five-factor test, which it called “unduly cramped” and “likely to exclude concerted activity from protection,” and it instead restored the fundamental principle that “whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.”
Although imperfect, the Alstate factors were at least clear, relatively easy to apply, and a benchmark by which employers could evaluate whether individual employee statements made in a group setting met, or fell outside of, the statutory definition of concerted activity. Miller Plastics’ retreat to amore nebulous definition of concerted activity makes it easier for the GC to argue that individual complaints raised by employees constitute concerted activity protected by the Act.
NLRB Limits Past Practice As A Justification For Unilateral Changes
On August 26, 2023, the Board decided Wendt Corporation and Tecnocap LLC, two precedent-reversing decisions that effectively dismantle the holding in Raytheon Network Centric Systems, a case decided by a Trump-era Board.
As background, under the NLRA, after employees select union representation, employers must engage in good faith collective bargaining with their employees’ chosen representative (i.e., the union) with respect to mandatory subjects of collective bargaining, e.g., wages, hours, and other terms and conditions of employment. To ensure that obligation is honored, the NLRA generally prohibits employers from making changes to mandatory bargaining subjects without first providing a union with notice and an opportunity to bargain (except in exigent circumstances). These principles still left unresolved the question of whether there are any actions employers can take unilaterally when a collective bargaining agreement (CBA) has expired or is still being negotiated? The Trump-era NLRB sought to address that question when it issued its Raytheon decision.
In Raytheon, the Board held that employers could implement unilateral changes to employment terms after a CBA expires or during negotiations for a first CBA – even if the change involved some degree of managerial discretion – as long as the change was: (1) similar in kind and degree with an established past practice of the employer, or (2) developed under or pursuant to a management-rights[4] or other similar clause in a CBA authorizing discretionary unilateral changes.
The Board’s August 2023 decisions in Wendt and Tecnocap overturned Raytheon, and held instead that employer unilateral action during bargaining is prohibited unless it is both consistent with a longstanding past practice and nondiscretionary (or essentially “automatic”). In Wendt, the employer decided to lay off a number of production and maintenance employees during a business downturn while it was engaged in contract negotiations for a first CBA with the union representing those employees. Relying on Raytheon’s “past practice” defense, the employer argued that it was entitled to conduct the layoffs because they were consistent with its established practice of laying off employees during business downturns. The Board rejected this argument even under the Raytheon framework, but then went further and completely overruled Raytheon’s “kind and degree test,” holding that it was incompatible with U.S. Supreme Court precedent “insofar as it held that an employer may lawfully make a unilateral change in terms and conditions of employment informed by discretion….”.
Taking the issue a step further, the Board invalidated the rest of Raytheon in Tecnocap, holding that unilateral changes undertaken during the term of a CBA pursuant to rights granted in a contractual management rights clause also were invalid because such clauses force unions to bargain to regain expired employment terms, and because they discourage unions from agreeing to management rights clauses in the first place.
Wendt and Tecnocap thus sharply limit the kinds of action employers can take when faced with difficult and time-sensitive decisions arising after the expiration of a CBA or before one is fully executed. Now, only “longstanding” past practice – how long is “longstanding” is unclear – and practices that were “nondiscretionary” can support unilateral action. Since it is unlikely that most employers will be able to establish both elements of the high bar established under Wendt and Tecnocap, the decisions essentially require that employers bargain over every decision, even if what they intend to do is consistent with past decisions. This, of course, further tips the balance in unions’ favor when it comes to the realities of collective bargaining.
NLRB Says Employees Are Protected When Advocating For Non-Employees
The last of the decisions issued during the last week of August 2023 also overruled a Trump-era precedent that had addressed the scope of protected Section 7 activity. The issue before the Board in American Federation for Children, Inc. was whether an employee, Sarah Raybon, engaged in protected concerted activity when she advocated for coworker support to get her employer to rehire a former employee and sponsor the former employee’s visa.
As noted above (see discussion of Miller Plastic), Section 7 of the NLRA protects employee concerted activity for the purpose of employees’ mutual aid or protection. The question in this case was whether Ms. Raybon’s advocacy fell outside the scope of Section 7, i.e., not intended for “mutual aid or protection,” because it was for the benefit of a nonemployee. The administrative law judge who initially ruled in the case relied on Amnesty International, a 2019 Board decision that held that “[a]ctivity advocating only for nonemployees is not for ‘other mutual aid or protection’ within the meaning of Section 7 and accordingly does not qualify for the Act’s protection.”
But in American Federation for Children, the NLRB overruled Amnesty International and held that Ms. Raybon’s activity was for mutual aid or protection regardless of whether she was advocating for a statutory employee. The Board explained that “the scope of mutual aid or protection covers the efforts of statutory employees to help themselves by helping persons who are not statutory employees.” Invoking what it referred to as the “solidarity principle,” the Board held that advocacy on behalf of a nonemployee is protected if, “in helping those persons, employees potentially aid and protect themselves, whether by directly improving their own terms and conditions of employment or by creating the possibility of future reciprocal support from others in their efforts to better working conditions” (emphasis added).
Although the fact pattern in American Federation is unlikely to frequently arise, the Board’s decision, further expanding the scope of Section 7 rights and protections, expands the scenarios in which employers must exercise caution.
Epilogue
Many of the litigation priorities announced by the NLRB General Counsel are being currently litigated before the Board. With the return of Member Wilcox to the Board, employers should prepare themselves for more decisions like those that issued at the end of August 2023 – decisions which advance the Biden Administration’s open agenda to enable and support unions.
[1] Judith Voirst, Alexander and the Terrible, Horrible, No Good, Very Bad Day 1 (1972).
[2] The Biden Administration regularly reminds the American public that it “is proud to be the most pro-union Administration in history.”
[3] Following a 51-48 Senate vote on September 6, 2023, Member Wilcox was sworn in to a second term as a Board member on September 11, 2023. Member Wilcox’s appointment is for a full five-year term (her prior appointment was to fill the remainder of a term vacated by a previous Board member), expiring on August 27, 2028. With her re-confirmation, the NLRB now has a three-member majority of Democrat-appointed members and only one Republican member (the other Republican member slot is currently vacant). However, a nomination by President Biden is expected soon, as a promised Republican nomination reportedly is what secured Senator Murkowski’s decisive vote to confirm Member Wilcox. Nonetheless, until such time as a fifth (and second Republican) member is confirmed and sworn in, all NLRB three-member panels deciding cases are assured a Democrat majority.
[4] Management rights clauses generally are included in CBAs to confirm or establish an employer’s discretion and autonomy to run its business without having to bargain over every business-related decision.
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