NLRB announces card-check light rule

Labor advocates have long sought a national card check rule that would require employers to review union-support cards and, if signed by a majority of workers, recognize the union without need for a secret ballot election supervised by the NLRB. This practice has been opposed by those who view it as undermine individuals’ right to express their vote in a secret ballot election without fear of coercion. Labor advocates tho contend the NLRB’s secret ballot election process has itself become unfair and unduly protracted.

In a decision today, entitled Cemex Construction Materials Pacific, LLC, the Board fell short of imposing a card check requirement, and instead held that employers decline to do card check-recognitions at their risk. The Board held that an employer who declines to card check-recognize will, if later — after forcing and winning an election — is found in violation of some other unfair labor practice that warrants a redo of the election, will face an order that shortcuts the need for a redo election and instead will be issued an order that mandates the company to proceed straight to bargaining. In other words employers who decline card check-recognitions will now face, in later ULP charges, the risk of an immediate bargaining order.

Employers are reminded that the Board has recently greatly enhanced the scope and extent of bargaining orders. Thus this new remedy, while short of a card check rule, is itself a substantial development.

One option employers facing this issue may have, when presented with cards, might be to, itself as the employer, immediately file its own petition with the NLRB for a secret ballot election. Issues related to this possible procedural step will need to be clarified in litigation, but may, unions will likely argue, include some consideration of the employer’s good faith evidentiary basis for doubting the cards.

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Honored to be selected for inclusion in the 2024 edition of The Best Lawyers!

Honored to be selected for inclusion in the 2024 edition of The Best Lawyers in America®, Employment Law – Management!

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NLRB begins requiring negotiation schedules as remedies in mandatory bargaining cases

Continuing its expansion of remedies available under the NLRA, the NLRB has begun to mandate that employers schedule negotiation meetings with unions and even submit to the NLRB post-negotiation status updates. See for example the NLRB’s recent decisions in Crushin’ It LLC , Columbus Electric Cooperative, Inc. , and Amerigal Construction Co., Inc.

Here is an example of such language, taken from the Amerigal case:

REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord [*4] Burnett Construction Co., 149 NLRB 1419 , 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226 , 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964).

Further, having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information that is necessary for and relevant to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit employees, we shall order the Respondent to furnish the Union with the information that it requested on July 26, 2022.

Additionally, the General Counsel requests that the Respondent be ordered to comply with a bargaining schedule requiring a minimum of 24 hours of bargaining per calendar month, for at least 6 hours per session, until an agreement or lawful impasse is reached or until the parties agree to a respite in bargaining. The General Counsel also requests that the Respondent be required to submit written bargaining progress reports to the Region and the Union every 15 days. As discussed above, the Respondent has unlawfully failed and refused to bargain with the Union for an initial collective-bargaining agreement despite the Union’s repeated requests to bargain over many months. In fact, the Respondent has failed and refused even to meet and/or to schedule any meetings to bargain since July 2022. It also has unlawfully failed and refused to furnish presumptively relevant information that goes to the core of the Union’s duties as the exclusive collective-bargaining representative of the unit employees. Given these circumstances, we find that a bargaining schedule requiring the Respondent to meet and bargain with the Union on a regular and timely basis is appropriate and would best effectuate the purposes of the Act. See Serenethos Care Center LLC d/b/a St. Christopher Convalescent Hospital, 371 NLRB No. 54 , slip op. at 2-3 (2022) (ordering employer to comply with a bargaining schedule to remedy its unlawful conduct), enfd. mem. NLRB v. Serenethos Care Ctr. LLC, No. 22-70014 , [2022 BL 67034], 2022 U.S. App. LEXIS 5285 (9th Cir. Feb. 28, 2022); All Seasons Climate Control, Inc., 357 NLRB 718, 718 fn. 2 (2011) (same), enfd. mem. 540 Fed.Appx. 484 (6th Cir. 2013). Accordingly, we shall order the Respondent, within 15 days of the Union’s request, to bargain for a minimum of 24 hours of bargaining per calendar month, for at least 6 hours per session until the parties reach agreement, lawful impasse, or an agreed-upon respite in bargaining. We shall also require the Respondent to submit written bargaining progress reports to the compliance officer for Region 5 every 15 days and to serve copies of those reports on the Union.

The General Counsel also requests that the Respondent be ordered to mail a copy of the notice to its unit employees because these employees are construction workers who work primarily at locations away from the Respondent’s facility. The General Counsel asserts that a notice mailing is necessary to ensure that all unit employees are informed of the Board’s order. We agree that this remedy is particularly appropriate to the work situation here and shall order the Respondent to mail a copy of the notice to all unit employees employed since July 26, 2022, when the Respondent began its unlawful conduct. See Bevilacqua Asphalt Corp.[*5] , 369 NLRB No. 96 , slip op. at 2 (2020) (ordering notice mailing where employer operated a quarry and asphalt plant and certain employees, particularly truckdrivers, did not regularly enter respondent’s office); Abramson, LLC, 345 NLRB 171, 171 fn. 3 (2005) (ordering notice mailing where unit employees worked on individual construction sites across a two-state region).4

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NLRB returns to more aggressive reviews of handbooks and other policy language

Jettisoning a Trump-era decision that in turn jettisoned an Obama-era approach to handbooks and policies, the NLRB, in a case entitled Stericycle, Inc., has returned to the more aggressive Obama-era approach. Now, the Board will return to reviewing the language of policies on their face for whether the Board believes the language could pose “a reasonable tendency to chill” NLRA-protected actions, and if so, find the employer in violation of the NLRA, even if the employer had no such intent. Revising the Obama-era approach slightly, now, employers will be able to assert an affirmative defense if they can prove that the language was “narrowly tailored” to advance a “legitimate and substantial business interest,” which it was otherwise unable to further without the language.

(O)ur (new) standard requires the General Counsel to prove that a challenged rule has a reasonable tendency to chill employees from exercising their Section 7 rights. We clarify that the Board will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity. Consistent with this perspective, the employer’s intent in maintaining a rule is immaterial. Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden, even if a contrary, noncoercive interpretation of the rule is also reasonable. If the General Counsel carries her burden, the rule is presumptively unlawful, but the employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. If the employer proves its defense, then the work rule will be found lawful to maintain.

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