NLRB Adopts New Standard for Assessing the Lawfulness of Employers’ Work Rules
On August 2, the National Labor Relations Board (the “NLRB” or “Board”) issued a decision in Stericycle Inc., establishing a new legal standard for evaluating employer work rules challenged as facially unlawful under Section 8(a)(1) of the National Labor Relations Act. In Stericycle, the Board found that the previous standard (established by the Boeing (2017) and LA Specialty Produce (2019) cases) improperly allowed employers to adopt overbroad work rules that had coercive effects on employees and limited their rights under Section 7 of the Act. The Board did away with Boeing’s categorical approach to valid work rules and ruled in favor of a more case-specific consideration of work rule validity.
Under the new standard, which applies equally to both union and non-union employers, the General Counsel must prove that a challenged rule has a reasonable tendency to prevent employees from exercising their rights. If the General Counsel is able to do so, then the work rule will be deemed presumptively unlawful. However, the employer has a chance to rebut this presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. If successful in their rebuttal, then the employer’s rule will be found lawful to maintain.
The Decision in Stericycle provides little guidance on how the case-by-case approach will be applied in practice, but employers should limit the risk of challenges to their work rules by ensuring their rules are constructed as narrowly as possible Employers should avoid using language which could be interpreted as infringing upon employees’ Section 7 rights, and employers should also review their existing work rules to determine whether they may be deemed unreasonable under this new standard.
NLRB Rolls Back Trump-Era Union Election Policies
This week, the NLRB altered the union election process by rolling back the Trump-Era changes and “substantially” returning to agency procedures that were promulgated under the Obama Administration in 2014. The new rule will meaningfully reduce the time it takes to get from petition to election in contested elections and will expedite the resolution of any post-election litigation. Specifically, the new rule (1) limits pre-election hearings to whether an election should occur, (2) delays questions about employee inclusion in the bargaining unit until after the election, and (3) eliminates the 20-day period between the order to hold an election and the date of the election itself by requiring regional officials to hold elections at the “earliest date practicable.”
The new regulation is set to take effect on December 26, 2023. In the meantime, it is recommended that employers proactively prepare for union campaigns by preparing management and supervisors for unionization and related questions from employees.
NLRB Issues Decision Announcing New Framework for Union Representation Proceedings
Finally, the NLRB issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election. Prior to the Cemex decision, employers could refuse to bargain with a union if the employer had a good-faith doubt of the union’s majority status. Now, the NLRB has brought back elements of the standard from its ruling in the 1949 case Joy Silk Mills, significantly reducing the barriers to union representation.
Under the new framework, once a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either: (1) recognize and bargain with the union, or (2) promptly file a petition seeking an election (an “RM petition”). In seeking an RM petition, however, if it is determined that the employer seeking the petition commits any unfair labor practice that would require setting aside the election, the petition will be rendered dismissed, and the Board will automatically order the employer to recognize and bargain with the union – as opposed to running the election again. The Board’s intention is to ensure that when an employer opts to hold an election, they conduct such an election in as fair a manner as possible.
It is not surprising that the Biden Administration’s NLRB is continuing its pro-labor rule and decision-making. However, these recent changes could embolden unions to become more aggressive in their tactics and activity, so non-unionized employers who wish to stay that way should take proactive measures and be ready to respond.
If you have any questions about this article or how to actively prepare your business for increasingly strong union initiatives, contact our Labor & Employment Attorneys Seth P. Briskin, Lester W. Armstrong, David M. Smith, Steven P. Dlott, or Joseph C. Pokorny at 216-831-0042.