NLRB Issues Rulings Reshaping Labor Relations Landscape

Author: Robert S. Teachout, XpertHR Legal Editor

September 21, 2023

The National Labor Relations Board (NLRB) has issued numerous rulings recently that alter the landscape of labor relations by changing standards to be more favorable to unions and employees.

Although the decisions handed down in Stericycle (making it more likely for workplace rules to be found unlawful under the National Labor Relations Act (NLRA)) and Cemex (opening a path for unions to be recognized without a secret ballot election) will have a  large impact on workplaces, other less-publicized rulings also affect many parts of employers' management rights:

• Intertape Polymer Corporation: The Board lowered the standard required to show union animus for an employer's adverse employment action in a mixed-motive case. Previously, the General Counsel (GC) had to show a connection between an employee's specific protected activity and the adverse action. Instead, the Board clarified that only a showing of the existence of some NLRA-protected activity and general union animus is needed to meet the GC's initial burden.
• Wendt: The Board held that employers may no longer lawfully make unilateral changes to terms and conditions of employment by showing the changes are consistent with past practices that are similar in "kind and degree" to changes the employer made previously. The NLRB further ruled that employers may not use such past practice as a defense in an unfair labor practice charge.
• Tecnocap: In another strike against the use of past practices by employers in implementing changes, the Board ruled that that discretionary changes made pursuant to the terms of a management rights clause in an expired collective bargaining agreement are unlawful.
• American Federation for Children, Inc.: The Board expanded the definition of protected concerted activity under the NLRA to include employee advocacy on behalf of persons who do not meet the statutory definition of "employee" under the Act, such as former employees or unpaid volunteers or interns. Under the prior standard, employees' actions had to be for furthering their own interests when soliciting support from or for nonemployees.

In addition to these decisions, the NLRB also finalized rules that effectively restore the "quickie" or "ambush" election rules and require that union elections be held the earliest date practicable without a 20-business day waiting period.

With the Senate confirmation of Member Gwynn Wilcox to a second term and the continued vacancy of a second Republican Board member, the NLRB is poised to continue on its current course of issuing decisions that tend to favor unions and employees.