During his election campaign and presidency, President Joe Biden has repeatedly insisted: “I intend to be the most pro-union President leading the most pro-union administration in American history.” His appointments to the National Labor Relations Board (NLRB or the Board) along with his selection of NLRB General Counsel have kept that promise, dramatically pushing the boundaries of the National Labor Relations Act (NLRA) in a pro-union and employee-friendly direction. Key decisions from the Board this year have demonstrated this dramatic shift and illustrated the work that employers need to do to ensure continued compliance with the NLRA and preparation for potential union activity.
Before considering these decisions it is important to remember that the NLRA applies to non-supervisory employees in almost all private workplaces. Its protections are not limited to unionized workforces.
This year, the Board addressed the scope of protection under the NLRA for disruptive employee behavior. Rejecting an employer-friendly standard in favor of circumstance-specific tests, the Board has adopted an approach that is more likely to protect disruptive behavior. Under the Lion Elastomers, LLC II decision, the analysis has shifted to focus less on the employee’s actual conduct and more on the circumstances under which the behavior occurred. With this decision, the Board reinstated three separate tests for evaluating disruptive behavior in the workplace:
- Conduct toward Management. Using the Atlantic Steel test, an employer should consider (1) the location where the conduct occurred; (2) the subject matter of the overall interaction; (3) the nature of the employee’s outburst, and (4) whether the outburst was, in any way, provoked by an unfair labor practice by the employer.
- Social Media and Conversations Among Employees. A totality-of-the-circumstances test is utilized in these situations, which considers all relevant surrounding context.
- Picket Line Conduct. Under the Clear Pine Mouldings standard, the employer must consider whether, under all the circumstances, non-strikers reasonably would have been coerced or intimidated by the picket-line conduct.
Under these tests, profane, abusive, offensive, and discriminatory conduct can be protected, if it occurs within the larger context of activity protected by the NLRA. Even an employer’s consistent application of policies against such behavior will not necessarily protect the employer in the face of Board action. Careful consideration of the relative liabilities will be necessary for employers going forward.
Less Leeway in Workplace Policies
Workplace policies and provisions are also in the crosshairs. In its recent Stericycle decision, the Board struck down the standards established in the Board’s earlier Boeing Co. and LA Specialty Produce Co. decisions. Under these prior decisions, a workplace policy that did not, on its face, impact the ability of employees to engage in protected concerted activity was considered lawful unless it could be shown that the policy, in fact, was used to infringe on employees’ rights. (Protected concerted activity is activity designed to address work-related issues.) Stericycle turns this standard on its head: under Stericycle a policy or provision violates the NLRA if it has a “reasonable tendency” to dissuade workers from concerted activity. This “reasonable tendency” is judged “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.”
An employer can rebut this presumption of illegality if it can show (1) that the policy advances a legitimate and substantial business interest and (2) that the employer cannot advance that interest with a narrower rule. Rebutting the pro-employee perspective may be an uphill climb, though, as Board cases from prior to Boeing and LA Specialty Produce show that the Board has rarely accepted the employer’s reasoning.
What types of policies are most at risk in the gaze of this “subject and economically dependent” employee? Rules governing personal conduct, workplace recordings, conflicts of interest, confidentiality of harassment complaints, and others. For example, just one week after Stericycle, an NLRB administrative law judge held Starbucks’ workplace civility policy – which asked employees to communicate with other employees and customers “in a professional and respectful manner at all times” and not “use … vulgar or profane language” – was unlawful.
In response to Stericycle, employers should consider reviewing their handbooks and determining what changes, if any, they wish to make to reduce potential liability under the NLRA.
Lower Recognition Thresholds
In its recent Cemex decision, the Board has significantly reduced barriers to unionization. Now, if a union claims to represent a majority of workers – even if the union does not present evidence that it actual has such majority support – an employer has three avenues: (1) recognize the union and bargain; (2) file a representation petition within fourteen (14) days of the demand for recognition; or (3) be ready to prove to the NLRB that the union did not have majority support in an appropriately defined bargaining unit. This incredibly foreshortened consideration period leaves little time for communication between the employer and the alleged bargaining representative and leaves employers with the difficult choice of whether to demand an election, even if the union may not have majority support.
So, what should employers do in the face of Cemex? Remain vigilant regarding demands for representation, and move quickly in assessing the best path forward. Employers with any concerns about employee organizing activity might also consider supervisor training, union vulnerability audits, and other union-free workplace messaging.
And There Is More to Come …
The Board’s decisions in 2023 have just touched the surface of what the General Counsel has sought. Employers should anticipate further action by the Board next year.