18 October 2022

Unions On The March While The Board Bangs The Drum

With big recent wins at Amazon, Starbucks, Chipotle, Trader Joe’s, and a favorable economic and political climate, right now the wind is in the sails of the labor movement.

Those winds are likely to grow stronger as the current leadership of the National Labor Relations Board identifies opportunities to revisit and recast decisions in order to favor organized labor.

Here’s a summary of a few things that may be on the horizon:

  • Restricted employer speech: For almost 75 years employers have been allowed to require employees to attend events during union organizing drives where management provides their perspective. The Board could overrule this precedent and require that employers always allow employees the ability to opt-out of such events, and even to require supervisors to give Miranda-like warnings to employees before discussing any activity protected by the NLRA.
  • Card check: Another longstanding precedent that may fall is employers’ ability to rely on secret-ballot elections in the union recognition process. For years unions have fought unsuccessfully in Congress to be granted recognition only on the showing of a majority of signed authorization cards, but the Board may now make the change itself if it rules—as its General Counsel wishes—that employers found to have committed unfair labor practices, or who cannot offer a legitimate reason for doubting a union’s claim of majority support, must recognize a union based on a card majority.
  • More damages: The Board is trying to expand the concept of “make-whole” monetary relief as broadly as possible, to include consequential damages and front pay (costs of finding a new job) in addition to the standard remedy of back pay. For instance, if an employee missed car or mortgage payments after losing his job, or incurred health care expenses while not on insurance, the Board could hold employers liable if it determines they violated the NLRA.
  • Greater union access to employer property: Allowing employees to sell Girl Scout cookies via a mass email to colleagues, or letting the Red Cross do a blood drive in an employer’s lobby, are not viewed by most people as analogous to a union organizing campaign attacking management. Yet the Board may decide that to allow the former without the latter is unlawful discrimination under the NLRA.
  • Common sense work rules deemed unlawful: The President Biden-appointed General Counsel would like the Board to issue a decision granting employees the right to violate reasonable workplace rules so long as the misconduct occurs during collective activity—and the Board is likely to agree. In that case, employer discipline would likely be limited only to actions that are “so violent or of such serious character” that they “render the employee unfit for further service.”
  • Joint employer: The Board has issued a proposed regulation that will likely be finalized within the next few months that would make it significantly easier to find “joint employer” status among multiple employers, such as vendors and clients or franchisors/franchisees. This could have a significant effect on joint liability for unfair labor practice charges and the scope of bargaining obligations, especially for companies that use staffing firms.

Please don’t hesitate to contact the author or another labor attorney at Miller Johnson if you have any questions or are concerned about potential union organizing within your workplace.

Contact the author Brett Swearingen.