What Has Happened and What Can Employers Still Expect from the NLRB?

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On February 15, 2023, Sean Marshall, Regional Director of Region 5 of the National Labor Relations Board (NLRB or Board) met with a group of labor and management practitioners at an event hosted by the Maryland State Bar Association. At the meeting, Mr. Marshall discussed case handling within the Region, summarized significant recent Board decisions, previewed several issues that may be addressed by cases pending before the Board, and addressed initiatives announced by General Counsel Jennifer Abruzzo.

An Increase in Region 5 Cases

Unions may filed Petitions with the NLRB seeking to represent a group of employees (i.e. Representation Cases), and may bring charges before the NLRB, alleging that employers have engaged in Unfair Labor Practices (“ULP”) in violation of the National Labor Relations Act. In the past twelve months, Region 5 has seen 994 cases, consisting of 828 ULP Charges and 166 Representation Cases.  This is an increase of 4.2% in ULP Charges and an increase of 9.2% in Representation Cases.  The significant increase in Representation Cases is attributable to the wave of unionization at Starbucks stores, which led to an increase of Representation Cases stemming from other retail establishments. This seemingly reflects a heightened interest in unionization, which is being encouraged by the current Presidential administration and Board.

“Pendulum Swings” In NLRB Case Law

Mr. Marshall highlighted some of the most significant precedent changes under the Biden administration:

  • Micro-units: Noted as one of the biggest “swings” of importance, and as we discussed in a blog post, the return to the Specialty Healthcare standard of evaluating bargaining units, which changes how petitioned-for bargaining units are identified.  With the reversion to the Specialty Healthcare standard, if a bargaining unit is readily identifiable and has a shared community of interest, the employer must show an “overwhelming community of interest” in order for the employer to add excluded members to the petitioned-for unit.
  • Restricting access to third party contractors: Also as we discussed in a blog post, the return to the New York New York Hotel & Casino standard requires property owners to demonstrate that contractor employees’ protected activity significantly interferes with the property owner’s use of the property or that the exclusion is justified by another legitimate business reason.
  • Dress Codes: Again, as we discussed in a blog post, the Board ruled in Tesla, Inc. that an employer’s interference with an employee’s display of union insignia on their apparel is presumed to be unlawful, unless the employer can demonstrate “special circumstances” to justify the interference. Special circumstances are found when the display jeopardizes employee safety, equipment or product safety, or unreasonably interferes with a public image which the employer has established as part of its business plan.
  • Union Dues: As further discussed in another of our blog posts, the Valley Hospital Medical Center (“Valley Hospital II”) decision stated that dues checkoff provisions should be treated as a part of the status quo that cannot be changed unilaterally after expiration of a collective bargaining agreement. Thus unionized employers cannot unilaterally cease deducting and remitting union dues upon expiration of a collective bargaining agreement.
  • Expansion of Board Remedies for ULPs: The Thryv, Inc. decision, discussed further in yet another one of our blog posts, provides compensation “for all direct or foreseeable pecuniary harms” to its customary “make-whole” remedy, which typically consisted of back pay along with reinstatement in any case that calls for relief to make employees whole for unfair labor practices, and not just egregious violations.

Where Will the Pendulum Swing Next?

As Mr. Marshall noted, General Counsel Memos set forth issues which the NLRB’s General Counsel intends to pursue and tend to indicate the direction in which the Board will move in the near future.

  • Memo 21-08 – Students or Employees?: In our October 2021 E-Update, we discussed the General Counsel’s reinstatement of a 2017 memo that asserts that college “Players” (rather than student-athletes), are employees since they perform services for compensation (whether for scholarships or, for graduate teaching assistants, pay), and their services are controlled by colleges. The General Counsel also indicated that referring to “Players” as “student-athletes” is a denial of their NLRA rights by not recognizing them as employees.
  • Memo 22-04 – Mandatory Meetings: As discussed in our April 2022 E-Update, the General Counsel signaled that situations where a supervisor advances an anti-union message in a one-on-one setting likely rise to the level of an unfair labor practice. The GC stated she would urge the Board to reconsider a ban on mandatory meetings where employers discuss union activity or other protected activities with employees, suggesting that such meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such [employer] speech.”
  • Memo 23:02 – AI and Electronic Monitoring: The General Counsel announced her interest in reining in employers’ increased use of automated technologies and electronic management systems, stating that these technologies can violate the NLRA, as we discussed in our November 2022 E-Update. The GC urged the Board to adopt a new framework to protect employees “from intrusive or abusive forms of electronic monitoring and automated management that interfere with” employees’ rights under the NLRA.

We will keep you posted as to these developments.