Among a flurry of recent pro-union decisions, the National Labor Relations Board (Board) issued a decision on December 14, 2022 restoring an Obama-Era test for determining the appropriateness of a bargaining unit in representation proceedings. This recent decision is expected to give unions more power in determining the makeup of bargaining units and enable smaller
Complying with OSHA’s ETS? Don’t forget about your duty to bargain, says NLRB
Since its publication on November 5, 2021, employers have been reviewing the Occupational Safety and Health Administration’s (OSHA) 490-page Emergency Temporary Standard (ETS) and taking steps to create and update their employment policies to comply with it.
The National Labor Relations Board (NLRB or the Board) has added another item to the to-do lists of those employers covered by the ETS with unionized workforces. On November 10, 2021, NLRB’s operations management division issued a memo reminding unionized employers of their bargaining obligations under the National Labor Relations Act in connection with policy changes being contemplated in light of the ETS.…
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Labor law under the Biden administration: A preview of the PRO Act
At a union event on Labor Day in 2020, President Biden vowed to be “the strongest labor president you have ever had.” Although he has only been in office a short time, his administration is already taking steps to honor that pledge. Specifically, on February 4, 2021, House and Senate Democrats introduced the Protecting the Right to Organize (PRO) Act. The PRO Act previously passed the House in February 2020 and President Biden has committed to sign it into law if passed in this Congress. If enacted, the PRO Act will fundamentally reshape the American workplace. …
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Executive Order 13950 on diversity training: Hidden traps for employers
**Please note this blog has been updated as of January 25, 2021. Read our update here.
Beginning November 20, 2020, President Trump’s Executive Order 13950 On Combating Race and Sex Stereotyping (“EO 13950” or “The Order”) will fundamentally reshape the way government contractors conduct diversity training. Signed September 22, 2020, the Order prohibits federal workplace trainings that “promote race or sex stereotyping or scapegoating.” Importantly for private employers, federal contractors also “will not be permitted to inculcate such views in their employees.” On October 7, 2020, the Department of Labor issued guidance in the form of “frequently asked questions” regarding EO 13950.
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NLRB ends long-time standard which protected obscene, racist and sexually harassing speech in connection with Section 7 activity
The National Labor Relations Board (the “Board”) issued a decision on July 21, 2020, which will aid employers in their ability to discipline or discharge an employee who engaged in abusive or offensive conduct in connection with protected concerted activity. In General Motors LLC, 369 NLRB No. 127 (2020), the Board modified its standard for determining under what circumstances profane language or sexually or racially offensive speech loses the protection of the National Labor Relations Act (the “Act”).
Before today, there were several circumstance-specific standards used by the Board in determining whether an employee was lawfully disciplined or discharged when they made profane, racist or sexually harassing comments in connection with Section 7 activity. There was one standard for workplace confrontations with supervisors or managers as applied in Atlantic Steel. A second standard was used for examining social media posts and most other interactions between employees, referred to as the “totality of circumstances.” Still, another standard was used when offensive statements or conduct occurred on the picket line, as set forth in Clear Pine Mouldings. All of these standards assumed that the employee’s Section 7 activity was inseparable from the abusive comments and conduct. Additionally, in many circumstances the outcome of those cases conflicted widely with an employer’s obligations under federal, state and local discrimination laws.…
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Responding to employee advocacy and workplace walkouts during times of protest
Several labor organizations, along with racial and social justice organizations, conducted a mass walkout on July 20, 2020 to protest racial inequality and working conditions in the United States. Thousands of workers in more than 200 cities walked off the job on a full-day strike while others who were unable to strike for a full day walked out about for eight minutes. According to the Strike for Black Lives website, the purpose of the strike was to demand higher wages, better jobs, the right to unionize, and healthcare for all. These organizations specifically call for corporations to address racism in the workplace, raise wages, provide healthcare, and provide ample personal protective equipment (PPE), among other things.
These types of mass walkouts raise several considerations for employers as they attempt to balance their support for racial and social justice with their tolerance of competing views and their need to maintain operations. While some employers may allow their employees to participate with little to no disruption to their operations, others, such as hospitals, will have to find ways to continue to run their operations (perhaps by hiring temporary workers) if they find themselves with reduced staff. Other employers may be forced to temporarily close or take other measures to manage the sudden loss of available employees. …
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NLRB greenlights company policy allowing searches of workers’ personal property on company premises and company devices and networks
In another victory for employers and a further retreat from Obama-era policy, the National Labor Relations Board (“NLRB” or the “Board”) recently ruled that employers do not violate the National Labor Relations Act (“NLRA” or the “Act”) by maintaining a policy that allows employers to monitor employees on the job by searching employees’ personal property on company premises and/or company networks and devices.
In a June 24, 2020 decision – Verizon Wireless, 369 NLRB No. 108 (2020) – the NLRB reversed an Administrative Law Judge’s (“ALJ”) ruling that Verizon Wireless and its related entities’ (collectively, “Verizon”) policy permitting company searches of workers’ personal property violated Section 8(a)(1) of the Act by infringing upon employees’ rights to engage in concerted activity for mutual aid or protection under Section 7 of the Act. The Board also upheld the ALJ’s ruling that another portion of Verizon’s policy permitting company monitoring of company computers and devices did not violate the Act.
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Judge denies implementation of portions of major union election rule changes
On May 30, 2020, a U.S. district court judge issued an order that prevents certain provisions of a new rule governing election procedures from going into effect. However, employers should note that the National Labor Relations Board (NLRB) intends to implement all other portions of the new rule that the court’s order did not address, effective immediately.
The new rule, which the NLRB issued at the end of 2019, amended procedural revisions from 2014 related to the processing of union representation cases. Critics of the 2014 revisions argued that those revisions truncated the time frame between the filing of a petition and the preelection hearing, making it difficult to simultaneously meet various obligations triggered by the filing while also preparing for the hearing.
In many respects, the new rule marks a return to pre-2014 procedures and practices, and provides parties with additional time in multiple areas of the election process.
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Responding to COVID-19 in a unionized workplace
While all employers are facing an unprecedented whirlwind of rapidly changing circumstances as a result of the COVID-19 pandemic, employers with unionized workforces face additional challenges as they take action in response to the outbreak while trying to avoid running afoul of the requirements of their collective bargaining agreements and the National Labor Relations Act (NLRA). Here are a few suggestions for employers to consider as they navigate this new landscape.
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The Board reinstates traditional deferral standard
On December 23, 2019, in United Parcel Service, Inc., 369 NLRB 1 (2019), the National Labor Relations Board (the Board) gave employers one final holiday gift by returning to its traditional standard for post-arbitral deferral. The Board uses this standard to decide whether it should defer to arbitration awards in cases alleging the unlawful discipline or discharge of an employee under the National Labor Relations Act (the Act). Under the re-established traditional standard, the Board defers to the arbitrator’s award if the following four elements are met: (1) the arbitral proceedings appear to have been fair and regular; (2) all parties have agreed to be bound; (3) the arbitrator considered the unfair labor practice issue; and (4) the arbitrator’s decision is not clearly repugnant to the Act.
The Board changed the post-arbitral deferral standard in Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014). Under the 2014 standard, even if the arbitration procedures appeared to have been fair and regular and the parties agreed to be bound by the results of arbitration, the Board would not defer to an arbitral decision unless (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permitted the award. The burden of proof rested with the party urging deferral. According to the current Board, that change was “a drastic contraction of deferral practices that had existed for decades” and “by disfavoring the peaceful resolution of employment disputes about discharge and discipline issues through collectively bargained grievance arbitration proceedings, [the 2014 standard] disrupted the labor relations stability that the Board is charged by Congress to encourage.”…
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