June 28, 2022

Volume XII, Number 179

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June 28, 2022

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June 27, 2022

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Top Five Labor Law Developments for April 2022

 

  1. The National Labor Relations Board (NLRB) General Counsel (GC) filed a brief seeking to expand unions’ right to obtain recognition from employers based on signed authorization cards alone, without the need for a Board election. In a brief filed on April 11 in Cemex Construction Materials Pacific, LLC, No. 28-CA-230115, General Counsel Jennifer Abruzzo advocates to reinstate the doctrine set forth in Joy Silk Mills, 85 NLRB 1263 (1949), under which an employer faced with signed authorization cards indicating a union’s majority status has no right to insist on a secret ballot election unless it can establish a good faith doubt of the union’s majority status. It is not clear if Joy Silk were to be reinstated, what would constitute such a “good faith doubt” about majority status. The NLRB finally abandoned the Joy Silk standard by 1969, adopting its current standard, under which an employer presented with signed union authorization cards need not accept the union’s claim of majority status. Instead, the employer can lawfully insist on a secret ballot election. Unions have long advocated a card majority rule. If the NLRB reinstates Joy Silk, employers — and employees — might not have the option of a secret ballot election.

  1. General Counsel Abruzzo is advocating that the Board hold “captive audience” meetings and similar employer campaign conduct violates the National Labor Relations Act (NLRA). As part of GC Abruzzo’s campaign to invigorate union organizing, she issued a memorandum (Memorandum GC 22-04) on April 7, 2022, announcing she will argue that employer “captive audience” meetings and similar mandatory meetings violate the NLRA. At such meetings, the employer requires employee attendance at a presentation concerning the election. Captive audience meetings have long been a staple of employer election campaigns. Abruzzo argues that the NLRB has “long-recognized that the Act protects employees’ right to listen to—or refrain from listening to—employer speech concerning their rights to act collectively to improve their workplace.” Abruzzo cites a 1946 NLRB case for this proposition, decided prior to the 1948 additiaon of § 8(c) of the NLRA that protects employer free speech. After the NLRA was amended, the Board abandoned this principle. Abruzzo argues that compulsory employee attendance under threat of discipline discourages the employees from refusing to listen to employer speech, which Abruzzo views as inconsistent with the NLRA. While the GC’s office cannot effectuate such a change in NLRB policy unilaterally, the GC can advance cases and arguments before the NLRB that advocate for a change in the law in this area, a change the employee-friendly Biden NLRB may support. If the NLRB adopts the GC’s proposal, employers will lose a primary vehicle for communicating their position — and employees would lose a significant opportunity to hear facts and opinions that differ from those presented by the union.

  1. Connecticut Governor Ned Lamont signed a bill allowing workers to opt out of captive audience meetings. The new law, styled as An Act Protecting Employee Freedom of Speech and Conscience, will prohibit employers from requiring employees to attend meetings on certain political or religious subjects, including unionization. Similar bills have been put before the Connecticut General Assembly and failed for more than a decade. Much of the debate over the bill centered on whether it is preempted by the NLRA. The NLRA permits employers to require employee attendance at meetings about unionization, called “captive audience meetings,” but the NLRB GC said in a memorandum (see above) she wishes to see that precedent overturned. Oregon passed a similar law prohibiting captive audience meetings in 2010. That law survived a 2010 lawsuit by the U.S. Chamber of Commerce based on lack of ripeness; it also survived a 2020 lawsuit by the NLRB based on lack of standing.

  1. The NLRB announced that union election petitions and unfair labor practice filings increased significantly in the first half of fiscal year 2022. According to a NLRB press release issued on April 6, during the first six months of fiscal year 2022 (October 1–March 31), representation case petition filings increased 57%, to 1,174 (up from 748 during the first half of FY 2021). This unprecedented increase in election petitions includes hundreds of cases filed regarding Starbucks stores in the first half of FY 2022. During the same period, unfair labor practice charge filings increased 14%, from 7,255 to 8,254. The increases come amid a surge of union activity nationwide, and even as the percentage of the private sector workforce belonging to unions continues to decrease. This wave of activity comes as the Board contends it is understaffed and underfunded. According to a Government Accountability Office report released in 2021, the NLRB saw its total personnel drop by more than a quarter from 2010 to 2019. The NLRB has also experienced the equivalent of a 25% cut to its budget since 2021. The Biden Administration is aiming to change that, calling for a 16% boost to the Board’s budget in its FY 2023 spending plan. It would be the NLRB’s first budget increase since 2014.

  1. The NLRB ruled an employer violated the NLRA when it withdrew recognition from a union after unlawfully delaying bargaining. J.G. Kern Enterprises, 371 NLRB No. 91 (Apr. 20, 2022). Under NLRB law, in certain circumstances, an employer may withdraw recognition from a union if it receives evidence that a majority of bargaining unit employees no longer wish union representation. Among the circumstances temporizing the employer’s ability to withdraw is the NLRB’s “certification” rule. Under the rule, a union enjoys a conclusive majority for one year following certification of the union’s election victory. The purpose of this rule is to allow the newly certified union 12 months in which to reach a collective bargaining agreement. In this case, almost 14 months after certification with no agreement reached, the employer received a petition from a majority of employees stating their disaffection from the union. The employer then withdrew recognition. The Board found the employer’s withdrawal was unlawful. It reasoned that the employer delayed actual good faith bargaining for three months following certification. Applying the principle of the “extended certification year,” the Board held that the employer’s delay prevented the union from having a full 12 months of good faith bargaining, thus the 14-month withdrawal was premature despite the petition from a majority of the employees.

This article contains additional contributions from Thomas V. Walsh and Nicholas Scotto.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 129
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About this Author

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta
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Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...

404-586-1835
Richard F. Vitarelli Harford  Connecticut Labor Relations Lawyer at Jackson Lewis Law Firm
Principal

Richard F. Vitarelli is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Part of the firm’s national labor practice, he has over two decades of experience representing employers nationally in strategic labor relations, collective bargaining, and union organizing, including in the context of mergers and acquisitions, corporate restructuring and contract administration. He serves as general labor and employment counsel for employers and multi-employer associations in various industries, including construction, manufacturing, health care and senior living,...

860-522-0404
Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney
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Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free....

212-545-4080
Associate

Christopher M. Repole is an Associate in the New York City, New York, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counsel.

While attending law school, Mr. Repole served as Notes and Comments Editor of the Brooklyn Journal of Corporate, Financial and Commercial Law and as Vice President of the Moot Court Honor Society, for which he received the Moot Court Honor Society Award.

Prior to...

212-545-4019
Chad P. Richter, Jackson Lewis PC, Alternative Dispute Resolution, Attorney
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Chad Richter is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C.

Mr. Richter’s practice is divided into three areas: (1) preventive counseling and training; (2) traditional labor law; and (3) workplace litigation. With regard to Mr. Richter’s preventive practice, he routinely provides day-to-day advice and counseling to management on a variety of employment law matters including human resource management, traditional labor relations, employment discrimination, wage and hour, privacy, disability leave management, and reductions in force. Mr....

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