- The National Labor Relations Board issued new election
rules and a decision overhauling the unionizing
process. 88 Fed. Reg. 58076 (2023); 372 NLRB No. 130 (2023). The Final Rule
amends and returns the Board's representation election
procedures to the "quickie election" rules (first adopted
by the Obama-Board in 2014 and later rescinded by the Trump-Board
in 2019) that established tight timelines on hearing dates and
elections. The Board also adopted a new framework for when
employers must recognize a union without an election. Unions will
no longer be required to file for an election with the Board if
they claim a majority of employees in the proposed bargaining unit
want to be represented. If a union demands recognition based on its
claimed support of a majority of employees, an employer that
refuses to recognize the union would violate the National Labor
Relations Act unless the employer "promptly" files an RM
petition with the Board requesting an election to test the
union's majority status or the appropriateness of the unit.
Further, if the employer commits certain ill-defined unfair labor
practices (ULP), the Board will dismiss the petition without an
election and order the employer to recognize and bargain with the
union.
- The Board reaffirmed the general counsel (GC) can
meet burden of proof in retaliation cases by relying in whole or in
part on circumstantial evidence. Intertape Polymer
Corp., 372 NLRB No. 133 (2023). The Board
clarified its Trump-era decision, Tschiggfrie Properties,
Ltd., 368 NLRB No. 120 (2019), did not alter the
GC's burden under the established Wright Line test, which
requires the GC to first demonstrate that protected activity was a
motivating factor in the adverse employment action alleged to be
unlawful. While the GC
argued Tschiggfrie heightened the burden by
requiring a showing of "particularized" animus toward
protected activity, the Board explained that the GC can satisfy
this burden where the record as a whole supports a reasonable
inference that protected activity was a motivating factor in the
adverse employment action. Thus, the employer's motive can be
inferred from direct or circumstantial evidence.
- The Board expanded employers' duty to bargain during
first contract bargaining negotiations and following a collective
bargaining agreement's expiration. Tecnocap LLC, 372 NLRB
No. 136 (Aug. 26, 2023); Wendt Corporation, 372
NLRB No. 135 (Aug. 26, 2023). The decisions
overruled Raytheon Network Centric
Systems, 365 NLRB No. 161 (2017), and its progeny, which
provided employers leeway to make unilateral changes during
contract negotiations if such changes were based on past practice.
The Board's decisions restrict an employer's ability to use
past practice as a defense to a ULP charge over such discretionary
unilateral changes unless they are consistent with a long-standing
practice and do not require significant discretion. Further,
employers can no longer rely on past practice for implementing
unilateral changes to conduct authorized under an expired
management-rights clause.
- The Board expanded protections for employee advocacy in the
workplace. American Federation for
Children, 372 NLRB No. 137 (2023); Miller Plastic Products,
Inc., 372 NLRB No. 134 (2023).
In Miller, the Board returned to the
"totality of the circumstances" test for determining when
individual employee action constitutes protected concerted
activity. Employee activity will be assessed using a holistic,
fact-based approach to determine whether individual complaints or
protests have a link to group action. The Board issued a subsequent
decision in American Federation (returning to
prior precedent) that protects statutory employees advocating on
behalf of non-employees, such as interns or contractors. The Board
said that by seeking to induce group support for non-employees, the
activity is both "concerted" and "for the purpose of
mutual aid or protection," therefore falling under the
protections of the Act.
- The Department of Labor proposed a rule that would allow union representatives to participate in Occupational Safety and Health Administration (OSHA) inspections. 88 Fed. Reg. 59825 (2023). The rule would amend OSHA's regulations to allow employee-authorized third-party representatives to accompany OSHA officials during facility inspections. The proposed regulation would pave the way for union representatives and interest groups to join the inspection, provided the OSHA official determines participation of the third party is "reasonably necessary." If approved, the rule would mark a return to the 2013 guidance rescinded under the Trump Administration after a federal judge told the agency it improperly circumvented notice-and-comment rulemaking by issuing a letter of interpretation on the issue.
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