Silver Taube: The NLRB shifts to union and worker-friendly standards

According to the National Labor Relations Board, the agency that enforces private sector labor laws, there were 1,249 union elections in fiscal year 2022, a nearly 50% increase from the year before. Workers voted in favor of unionizing in 72% of those elections, up from 61% in 2021.

In recent months, the National Labor Relations Board (NLRB) has issued new union election rules and decisions favorable to unions and employees that make it easier for employees to obtain union representation, redefine the standard for protected concerted activity subject to protection under the National Labor Relations Act and shorten the time frames for elections.

On Aug. 26, the NLRB issued a direct final rule that substantially shortens the period between the filing of a union election petition and the holding of an election. Elections will be held more quickly than under the 2019 Trump era NLRB election rules. The rules will go into effect on Dec. 26.

Unions historically have had two paths by which they can represent private sector employees: either (1) unions could request voluntary recognition from an employer upon presentation of proof that a majority of that employer’s employees want union representation (card check), or (2) they could file a petition for a secret ballot election with the NLRB and try to win a majority of employee votes cast in that election.

The NLRB created a third path with its Aug. 25 decision in CEMEX Construction Materials Pacific LLC. Under the CEMEX framework, if a union presents proof that a majority of an employer’s employees wish to be represented, the employer must either voluntarily recognize the union or, within two weeks, file a petition to request an election. If an employer files an election petition, but then engages in an unfair labor practice—which prior to CEMEX would in most cases mean the election would be rerun—the employer will be forced to recognize and bargain with the union even if the majority of employees vote against a union.

The NLRB also issued Miller Plastic Products, Inc. on Aug. 25, which expands the scope of protected concerted activity. Section 7 of the National Labor Relations Act permits employees, regardless of whether or not they are unionized, to engage in concerted activities for their mutual aid and protection.

Under longstanding NLRB precedent, in both a union and non-union workplace, whether an employee’s activity is “concerted” and protected depends on whether the employee joins with or on behalf of other employees and speaks not solely by and on behalf of the employee. Protected, concerted activity generally excludes situations in which an employee speaks individually, even if the employee does so in a group setting like a work meeting.

In Miller Plastic, the NLRB held that an employer violated the National Labor Relations Act by discharging an employee who had expressed concerns at a work meeting about the employer’s decision to remain open during the early months of the COVID-19 pandemic. The board held that “whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” The NLRB overruled a case with a narrower test.

The NLRB also expanded the remedies available to employees. Generally, the NLRB’s remedies are limited to back pay and reinstatement. The NLRB broadened the available remedies by ordering the employer to compensate the employee for “direct or foreseeable pecuniary harms” including a “reasonable search-for-work and interim employment expenses … regardless of whether these expenses exceeded interim earnings.”

The NLRB also addressed the issue of whether employees are engaging in protected concerted activity when they are advocating for a non-employee. The issue before the NLRB in American Federation for Children, Inc. was whether an employee engaged in protected concerted activity when she advocated for co-worker support to get her employer to rehire a former employee and sponsor the former employee’s visa.

The NLRB overruled a Trump era case and held that the employee’s activity was for mutual aid or protection regardless of whether she was advocating for an employee or a non-employee. If workers are advocating for co-worker support for an employee who is fired, the worker is engaging in protected concerted activity.

In its Feb. 21 McLaren Macomb decision, the NLRB held that certain confidentiality and non-disparagement provisions contained in employee severance agreements violate employees’ rights under the National Labor Relations Act and that the mere proffer of such provisions in a severance agreement is unlawful.

McLaren Macomb involved a severance agreement that “broadly prohibited (employees) from making statements that could disparage or harm the image of the (employer) and further prohibited them from disclosing the terms of the (severance) agreement” to any third party. The NLRB determined that such provisions have a reasonable tendency to interfere with the exercise of employee rights under Section 7 of the National Labor Relations Act.

The composition of the NLRB changes when board members’ terms expire. The NLRB seesaws between decisions that are favorable to employees and unions when a Democrat is president and decisions that make it harder for workers to form a union and that narrow the scope of protected concerted activity when a Republican is president. In recent months, the NLRB overruled numerous Trump era decisions.

The next election will determine whether the board continues to expand union and employee rights or returns to the Trump era decisions that restrict those rights.

San José Spotlight columnist Ruth Silver Taube is supervising attorney of the Workers’ Rights Clinic at the Katharine & George Alexander Community Law Center, supervising attorney of the Santa Clara County’s Office of Labor Standards Enforcement Legal Advice Line and a member of Santa Clara County’s Fair Workplace Collaborative. Her columns appear every second Thursday of the month. Contact her at [email protected].