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As the end of the year approaches, the National Labor Relations Board is still without a quorum. Last week, the Senate Health, Education, Labor and Pensions Committee approved the nomination of James Murphy, who joined David Prouty as the only two members of the five-seat board. With three vacancies, the board still lacks a quorum, meaning the board cannot issue what may be precedent-shifting decisions.
The Senate also voted for management-side attorney Crystal Carey to take over as the board's general counsel. Carey will lead the board's prosecution of unfair labor practice charges against employers and unions alike. The agency is closed amidst the government shutdown.
New leadership at the NLRB may mean change is (once again) on the horizon. The board is likely to take up some key labor relations issues for consideration when members return. These are the top five developments we'll be tracking that may impact employers with and without bargaining units when (and if) the NLRB reaches a quorum:
1. Will Cemex Bargaining Orders Survive?
The labor law landscape dramatically shifted in August 2023 when the board issued its decision in Cemex Construction Materials Pacific LLC. In Cemex, the board determined that if a union demands recognition based on support from a majority of employees, the employer must either voluntarily recognize the union or file what's called an "RM" petition (in other words, an election petition) within 14 days unless the union files its own election petition before then. If an employer commits an unfair labor practice during the campaign period, and the union enjoys majority support, the board may order the employer to bargain with the union.
The Cemex decision has caused employers to navigate tricky, technical landmines to avoid a bargaining order. A new board may be poised to overturn the decision.
2. How Will the Board Determine Whether the Union Waived the Right to Bargain?
In 2019, the board in MV Transportation, Inc. changed decades-old law and adopted the "contract coverage" test to determine whether a union waived its right to bargain over certain management decisions. Under MV Transportation, the employer did not have to bargain with the union over management decisions that came "'within the compass or scope' of contract language granting the [employer] the right to" implement certain changes. The board changed course in its 2024 Endurance Environmental Solutions, LLC decision overruling MV Transportation and finding that it will require the union's waiver to be "clear and unmistakable." This standard imposes hardships on employers attempting to make management decisions pursuant to, for example, a management rights clause. We anticipate a new board may take another look at this decision.
3. Could Employers Re-Write Their Personnel Policies?
Employers everywhere took on intensive handbook reviews following the board's decision in Stericycle Inc. In Stericycle, the board announced a revised standard used to evaluate employer policies and rules. The board now evaluates employer policies and rules from the employee's view. If employees could "reasonably interpret" the rule to have a chilling effect on their Section 7 rights (including the right to engage or refrain from protected concerted and/or union activities), then the rule will be presumptively unlawful. If found unlawful, the employer has the chance to rebut the presumption by demonstrating that the rule advances a legitimate and substantial business interest, and the employer is unable to advance that interest with a more narrowly tailored rule.
Workplace civility, confidentiality and social media rules are just a few of the many policies impacted and sometimes found unlawful pursuant to Stericycle. The board may be poised to re-evaluate given the high burden this standard places on employers.
4. Will Certain Employee Misconduct Remain Protected?
If you once believed that heated outbursts and flagrant behavior had no role in the modern workplace, think again. Lion Elastomers caused a flurry of confusion and frustration for employers. In Lion Elastomers, the board reinstituted three "setting-specific" standards used to evaluate proven misconduct in the course of engaging in protected activity. In doing so, the board explained that certain "misconduct" is protected under Section 7, but other misconduct may lose protection if the employee crosses a — very thick — line. For example, physical violence will lose protection of the Act, but calling a supervisor choice and vulgar names in the course of making a workplace complaint may retain protection.
This decision has created immense conflict with federal discrimination and harassment laws. Employers are sometimes forced to choose between allowing an employee to engage in what may normally be considered offensive behavior and protecting other employees or supervisors who allege they have been harassed. It remains to be seen if this confusion will be resolved.
5. Will Employers be Able to Host Mandatory Meetings?
Last year, the board overturned longstanding precedent in Babcock & Wilcox Co. (decided in 1948) allowing employers to mandate employee attendance at meetings during which the employer planned to discuss its views on unionization. Now, employers may still hold these meetings, but the meeting must be voluntary and the employer must give assurances against reprisal in advance of the meeting. Many employers argue that this shift violates their right to lawfully express their views, arguments, and opinions under Section 8(c) of the Act. Whether the board will ultimately agree and turn the tides has yet to be seen.
Banning what the NLRB dubs as "captive audience" meetings is nothing new. Somestateshave passed their own bans on mandatory meetings to discuss unionization and political views.
Needless to say, there may be a lot of change coming our way. Stay tuned to this space as things unfold.
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