NLRB Pushes Legislative Agenda
The following article was provided by Berchem Moses PC. It is posted here with permission.
In case you missed it—President Biden in his State of the Union speech, for the second straight year, urged Congress to pass the Protecting the Right to Organize Act.
The PRO Act is largely a wish list for organized labor.
President Biden in his address said, “I’m so sick and tired of companies breaking the law by preventing workers from organizing … Pass the PRO Act because workers have a right to form a union.”
If signed into law, the PRO Act would significantly alter the state of U.S. labor relations policy in a way the country has not seen since 1947 with the passage of the Taft-Hartley Act.
Here is a small sampling of what the PRO Act contains:
- Invalidating every right-to-work law in the country without any action by state legislators.
- Resurrecting organizing by card check, meaning unions could organize a workplace by gathering signatures from a majority of the workers triggering the employer’s duty to bargain rather than seeking a private ballot election administered by the NLRB.
- Expanding liability for employers who violate the National Labor Relations Act by imposing civil penalties on businesses and holding corporate officials personally accountable for violations.
- Banning “captive audience” meetings meaning it would be an unfair labor practice for an employer to hold meetings with employees to discuss the pros and cons of unionization. (Connecticut already has a law on the books that bans these types of meetings. The legislation has been challenged in court by CBIA and others.)
NLRB Administrative Functions
Given the current makeup of Congress, it is extremely unlikely for the PRO Act to pass.
Instead, the National Labor Relations Board will continue to push this legislative agenda as it has done so for the last several years through its administrative functions—rulemaking and adjudication.
Here is a brief list of some of the major changes the NLRB made in 2022:
- Requiring companies to compensate employees for “all direct or foreseeable pecuniary harms” suffered because of unfair labor practices. Importantly the scope of this mandate still must be litigated.[i] Lowering the bar for unions to organize smaller groups of employees within larger workplaces establishing a foothold for future organizing efforts.[ii]
- Reverting to a prior standard that states property owners can prohibit off-duty contract workers from holding labor protests only if the owners can show the activity would interfere with the use of the property or when barring workers is justified by another legitimate business reason.[iii]
- Requiring employers to honor dues deduction arrangements contained in a collective bargaining agreement after the agreement itself expires.[iv]
In 2023, businesses should expect a series of decisions that may have profound consequences.
One case could redefine whether an independent contractor is actually an employee for the purposes of labor law protections.
The board could formulate a new test assessing the lawfulness of workplace rules and employer handbook provisions.
In addition, the board may decide if a confidentiality requirement in an arbitration agreement violates the National Labor Relations Act.
The board could also make union organizing easier by requiring employers to recognize a union by authorization cards only.
Businesses should stay vigilant and informed of these developments.
Moreover, treating employees respectfully, in word and deed, whether unionized or not, will go a long way to ensure your business does not become the NLRB’s business.
About the author: Christopher Henderson is an associate in Berchem Moses PC’s labor and employment department. He routinely provides labor and employment advice and counsel to Connecticut small businesses and has provided union avoidance training and collective bargaining representation to several Fortune 200 companies.
[i] Thryv, Inc. and International Brotherhood of Electrical Workers, Local 1269, Cases 20-CA-250250 and 20-CA-25110. [ii] American Steel Construction, Inc. and Local 25, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Case 07-RC-269162. [iii] Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, Case 16-CA-193636. [iv] Valley Hospital Medical Center, Inc. 371 NLRB No. 160 (2022).
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