Last week, the National Labor Relations Board signaled two additional areas in which it intends to pursue its labor-favorable agenda over the remainder of the 2022 year and beyond.
First, on October 31, 2022, NLRB General Counsel Jennifer Abruzzo issued a memorandum stating her intention to zealously enforce the National Labor Relations Act (the “Act”) with respect to what she has called “intrusive or abusive electronic monitoring and automated management practices.”
Second, on November 3, 2022, the Board issued a proposal to roll back 2020 amendments to its election regulations with respect to so-called blocking charges.
Technology-based monitoring and surveillance
In her October 31 memorandum, the General Counsel expressed concern that “close, constant, surveillance and management through electronic means” constitutes a threat to “employees’ ability to exercise their rights” under the Act. The General Counsel specifically stated that electronic surveillance and automated systems can limit or prevent employees from engaging in protected activity, including conversations about the terms and conditions of their employment or of unionization. She also claimed that employer-issued devices or required applications on employees’ personal devices may extend surveillance to nonworking areas, including to rest areas within an employer’s facilities and non-work areas outside of the workplace. This, the General Counsel speculated, “may prevent employees from exercising their Section 7 rights” from engaging in concerted activity anywhere and may lead to retaliation and discrimination on the basis of protected activity. The memorandum goes on to provide a two-pronged approach towards dealing with these perceived threats to employees’ rights.
First, regions are directed to vigorously enforce current Board law and Supreme Court precedent involving new workplace technologies. Regions also are advised to submit to the NLRB’s Division of Advice “any cases involving intrusive or abusive electronic surveillance and algorithmic management that interferes with the exercise of Section 7 rights.”
Second, the General Counsel urged the Board to adopt a new framework under which the Board would presume a violation of Section 8(a)(1) where an employer’s surveillance and management practices, viewed as a whole, tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act. An employer might rebut the presumption by establishing that its practices are “narrowly tailored to address legitimate business needs.” Then, the Board would balance the employees’ rights against the employer’s business needs to determine whether the employer’s actions are permissible under the Act. If the employer’s business needs outweigh the employees’ rights under Section 7, the Board would require the employer to disclose to employees the technologies being used to monitor and manage them, its reasons for doing so, and how it is using the information it obtains. However, an employer would not be required to make such disclosures if it demonstrates that special circumstances require the covert use of such technologies. Consequently, it appears from the General Counsel’s proposal that an employer may be obligated to take action and provide notice to employees about the technology-based surveillance even when no NLRA violation is found.
In preparation for the Board’s prospective focus on this subject going forward, employers should promptly begin reviewing their policies and practices relating to the use of workplace technology, including any mandates on use of mobile device applications and/or employer-provided cell phones and devices, and assessing whether such technologies could be viewed as technology-based surveillance; whether such policies and practices are narrowly tailored to protect or further specific business interests; and how those business interests might compare to the personal interests of their employees.
Proposed rulemaking changes to the blocking charge doctrine and other rules
The Board also appears to be committed to furthering its pro-labor agenda with respect to union election procedures. In its November 3, 2022 notice of proposed rulemaking, the Board suggests rolling back amendments made in 2020 to the election regulations, which ended the Board’s so-called “blocking charge doctrine.”
By way of background, a “blocking charge” is an unfair labor practice (ULP) charge filed by the union at the time of an election, in which the union alleges that the employer unlawfully interfered with the employees’ ability to choose freely and without coercion whether to decertify the union. Under the blocking-charge doctrine, the NLRB must hold off on processing petitions for decertification election until the blocking charge is resolved or completed or the employer remedies the alleged violation. This potentially resulted in a delay of months, or even years, before the decertification election could proceed.
The Board’s 2020 amendments aimed to nix such delays by directing the regional offices to continue with the decertification elections and ballot counts, but withhold actual decertification until a decision was made with respect to the blocking charge. Accordingly, unions could not hinder decertification elections simply by filing a blocking charge. The Board’s proposed rule change would reverse the 2020 regulations and reinstitute the rules permitting blocking charges.
Also, the Board’s proposed rule change would eliminate the 2020 rule establishing a 45-day window in which employees could challenge an employer’s voluntary recognition of a union. This will have the effect of returning to the pre-2020 rule under which employees are prohibited from filing decertification petitions for a “reasonable time” — generally interpreted 6-12 months – after the employer voluntarily recognizes the union.
The Board’s final proposed amendment would establish a lowered threshold for demonstrating majority union employee support in the construction industry, as first announced in Staunton Fuel (2001).
The notice-and-comment period for the November 3, 2022 proposed rule is scheduled to conclude on January 17, 2023. Absent delay (most likely in the form of litigation), the Board is expected to move quickly to formalize these rule changes within weeks thereafter.
The Board has made clear that it will continue to pursue its pro-labor agenda into 2023. All employers, regardless of whether its workforce is unionized or not, should pay continuous attention to the changes being proposed and instituted by the Board, as those changes could have a significant impact on the way in which the employer is able to conduct and manage its business, operations, and workforce.