On August 24, 2023, by a direct final rule, the National Labor Relations Board (“NLRB”) rolled back amendments adopted during the Trump administration related to union elections. The new rule is designed to make the election process faster and less complex. The rule will become effective on December 26, 2023, and will eliminate some pre-election hearings. It will also postpone resolution of whether certain employees are included in a bargaining unit until after the election has occurred. In announcing the rules adoption, the NLRB Chair emphasized that a basic premise of the National Labor Relations Act (“the Act”) is for representation cases to be resolved quickly.
The revised rule coincides with the just released Bloomberg Law NLRB Election Statistics Report. That report highlights that in the first half of 2023, unions won the second-highest amount in this century of contested elections. At the same time, and as the Starbucks cases have documented, claims that employers have engaged in unfair labor practices under Section 7 and 8 of the Act have been given a very receptive ear.
One of the more common complaints is an employer has disciplined, or threatened to discipline, an employee for discussing with other employees their pay or other terms of employment. As previously discussed, a handbook or policy that “chills” discussions as to terms and conditions of employment is now unlawful. Employers are reminded that they should strictly adhere to the “TIPS” acronym when drafting a strategy to avoid unionization of their workforce- employers may not Threaten, Interrogate or question as to what is discussed between employees, Promise future benefits that interfere with organization efforts, or conduct impermissible Surveillance of employees.
Leech Tishman will be hosting a Fall 2023 presentation on the workplace impact of recent Supreme Court and NLRB decisions. Stay tuned for more information.
If you have any questions about the NLRB rule and how it may affect you as an employer, please contact Philip A. Toomey, the National Chair of Leech Tishman’s Employment & Labor Practice Group. Philip can be reached at 424.738.4400 or ptoomey@leechtishman.com.