It is often said that workers’ power comes from workers themselves and from solidarity, more so than the U.S. system of labor laws. The National Labor Relations Board’s (NLRB) changes to its interpretation of the National Labor Relations Act (NLRA) throughout 2019 and especially at the close of the year seem to confirm this view.
First and foremost, the NLRB has extended its deadline for filing comments concerning its proposed “Election Protection Rule” until January 9, 2020. School for Workers will be filing comments, so if there are any specific thoughts or concerns you wish to contribute, please contact Associate Professor Kulwiec at firstname.lastname@example.org. The proposal impacts the election process in three significant ways. 1) The rule would establish a vote and impound rule when there are blocking unfair labor practice charges filed, meaning that rather than require a new election, votes tainted by the employer’s conduct could be relied upon by the Board in determining election results. 2) The rule changes voluntary recognition rules, mandating a notice requirement and 45-day open period for filing an election petition following voluntary recognition. 3) The rule would increase the evidence needed to establish that lawful Section 8(f) agreements in the construction industry had been converted to Section 9(a) collective bargaining agreements pursuant to majority support of the employees.
Despite the fact that comments on rulemaking are pending, the Board on its own also made additional changes to the election process on December 13, 2019, not open for public comment, reversing many rules made through the formal notice and comment process under the Obama administration in 2014. These changes lengthen the time before a pre-election hearing and allow for postponements, lengthens the time for employers to provide the excelsior list of voters, lengthens the period in which employers can provide their opinion on election matters, and lengthens the period before an election after a Decision and Direction of Election has been issued. Additionally, it increases litigation and filing of briefs, makes some technical changes, and changes to terminology. Going forward, the election process is likely to move more slowly.
Other December changes include dues checkoff during collective bargaining; under the new rules, an employer does not need to check off union dues when the agreement expires, even if the parties are negotiating the successor agreement. This likely serves as a disincentive to unions to allow termination of the agreement during negotiations, thereby removing effective economic weapons in negotiations. Valley Hospital Medical Center Inc., 368 NLRB No. 139 (2019). As expected, the Board reversed its stance on the use of employer email, finding that employers may restrict the use of their equipment including email systems as long as they do not discriminate against protected concerted communications, overruling a Board decision finding the use of an employer’s email system for protected activity to be protected.
Throughout the year, the Board has been continuing to make it harder to establish that work rules violate the NLRA, and in December concluded that rules requiring confidentiality during workplace investigations are presumptively lawful. Before the year’s end, the Board also changed the standard by which it decides whether to defer the outcome of a labor dispute, to a labor arbitrator. This will likely result in increased deferrals, i.e., the Board relying on labor arbitrators entrusted to apply a collective bargaining agreement to decide matters under federal statute.
To learn more about these and other changes, and more sure to follow, be sure to attend the School for Workers’ course on Changes to the National Labor Relations Act February 24-25, 2020. Register by February 5, 2020 here. We’ll have a lot to discuss!
By: Alexia Kulwiec, School for Workers Associate Professor