By Dan Barker, Jackson Lewis, P.C.
So far in 2023, the National Labor Relations Board has issued numerous game-changing decisions impacting both union and non-union employers. Two of the most critical for merit shop contractors involve: (1) a tough new standard for assessing the lawfulness of work rules and handbook policies; and (2) a new framework governing mandated union recognition. Because construction unions are likely to use these new rulings to increase pressure on merit shop contractors, ABC of Wisconsin members should consider what they can do now to stay a step ahead.
On August 2, 2023, the Board announced a new standard for assessing whether ordinary work rules and handbook policies violate federal labor law. This new standard means that many common-sense work rules will be deemed illegal by the Board.
For example, under the new standard, rules and policies that require employees to treat each other with courtesy and respect could be declared illegal. This is because protected union activity often involves strong emotions, harsh words, and even curse words. According to the Board, employers sometimes must tolerate disrespectful behavior in connection with union activity. As a result, the Board says employer rules that prohibit this kind of behavior are illegal because they deter union activity.
In its August decision, the Board tossed aside a far more lenient (and reasonable) standard previously applied during the Trump administration. Now, the Board will assess all work rules from the “perspective of the economically dependent employee” who contemplates engaging in activity protected by the National Labor Relations Act. That protected activity can take many forms and includes any activity where employees are acting together to advance their interests as employees. Often, protected activity involves employees criticizing the employer or complaining about working conditions. For example, griping about an employer on social media often is found to be protected activity.
According to the Board, any rule that might deter employees from loudly criticizing their employer likely will be found unlawful. Moreover, work rules are presumptively illegal if they have a “reasonable tendency” to chill employees from exercising their organizing rights or otherwise have a coercive meaning. The employer’s intent in establishing or maintaining the rule is not considered. A rule may be found presumptively unlawful, “even if a contrary, noncoercive interpretation of the rule is also reasonable.”
Common rules and policies that could be vulnerable under this new standard (depending on how they are worded) include the following:
A new legal standard on work rules can dramatically affect union organizing. On August 25, 2023, the Board issued a ruling that makes it easier for unions to organize workplaces without an election. Under the new framework, if a union demands recognition based upon claimed support from a majority of employees (generally, using signed cards), an employer that refuses to recognize the union will violate the Act, unless the employer “promptly” (i.e., within 14 days) files a petition with the Board requesting an election “to test the union’s majority status or the appropriateness of the unit.”
As a part of its decision, the Board added a new aspect to the election process. In the past, if the employer committed a legal violation during the election campaign, the Board would simply re-run the election. Now, if the employer commits an unfair labor practice that would require the election to be set aside, the Board will dismiss the petition without an election and “order the employer to recognize and bargain with the union.”
The Board acknowledged that an unfair labor practice that would require setting aside an election could be a single violation of the Act. In this regard, the mere existence of an unlawful work rule in a handbook (even without evidence that employees were aware of it) has been sufficient for the Board to require the results of an election to be set aside. Significantly, a dissenting member of the Board concluded that the new decision “will predictably result in many more card-based bargaining orders and far fewer representation elections.”
While the Board’s decisions apply in most industries, high union presence in the construction industry exposes those employers to greater risks. For a merit shop contractor facing an organizing campaign, any rule or handbook policy deemed unlawful by the Board could result in an order forcing the contractor to bargain with the union without an election. This means that even the maintenance of a rule that is later deemed unlawful could result in dismissal of the employer’s request for an election and issuance of an order to bargain with the union. A careful review of handbook policies, along with management and supervisor training, is crucial.
Merit shop contractors need to prepare and do what they do best: adapt and stay a step ahead of the challenges. For example, the Board’s election decision has no impact on an employer as long as a majority of the employees have not signed union cards. No signed cards = no unionization.
Daniel D. Barker is a Principal in the Madison office of Jackson Lewis P.C. and is the ABC of Wisconsin Labor Attorney. He can be reached at daniel.barker@jacksonlewis.com or 608-729-5598.
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