November 27, 2022

Volume XII, Number 331

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What Manufacturing and Other Employers Can Expect From Biden National Labor Relations Board

Through its decisions, the five-member National Labor Relations Board interprets the National Labor Relations Act. These decisions set rules that regulate unionized and non-unionized workplaces, including the relationship between employers and organized labor and the rights of employees to engage in concerted activities. With President Joe Biden’s appointees taking their seats, the Board’s Democratic majority is expected to make changes that would likely benefit organized labor.

In addition, General Counsel Jennifer Abruzzo, also a Biden appointee and the Board’s de facto “prosecutor,” has announced her enforcement priorities. Here are four of the most significant potential changes for manufacturers:

  1. Card Check. In recent years, legislative attempts to replace the secret ballot election process with card check have failed. General Counsel Abruzzo has indicated in a memorandum that she may seek a ruling from the Board that employers that commit unfair labor practices, or that cannot offer a legitimate reason for doubting a union’s claim of majority support, must recognize the union based on majority support as evidenced by signed authorization cards.

  1. Quickie Strikes. Quickie strikes occur when employees intermittently walk off the job for short periods. Quickie strikes can greatly impede production as employees repeatedly walk off the job. At the same time, the employer is effectively denied the opportunity to shore up production by using replacement workers because the strikers return to work before the replacements can be hired. Thus, quickie strikes are treated as unprotected activity, meaning the strikers can be disciplined or discharged. General Counsel Abruzzo has indicated she will seek to narrow the definition of what constitutes an unprotected quickie or intermittent strike. Quickie strikes could be damaging to many companies, but the impact to manufacturing with its often-unforgiving production schedules could be especially damaging. If she were to succeed, employers undoubtedly would be exposed to more quickie-type strikes.

  1. Acquisitions. Under current law, a company that acquires a unionized business generally has the right to reject an existing union contract and set the initial terms and conditions of employment for the employees of the acquired company. Thus, acquiring businesses generally can (and often do) implement pay, benefits, and other working conditions that differ substantially from those stated in the union contract in force prior to the acquisition. In fact, the ability to make these changes is often a significant factor in making the deal work and making the newly acquired operation profitable. This issue is particularly critical in manufacturing, where older plants with mature union contracts and inflexible unions might be at risk of eventual closure. One priority General Counsel Abruzzo has identified is placing limits on a purchaser’s right to make these changes and requiring the terms of the union contract be maintained.

  1. Status Quo Obligation Expansion. When a collective bargaining agreement expires, an employer is required to maintain the status quo as to wages, benefits, and other working conditions until a new contract is reached or bargaining comes to an impasse. Under current law, if a contract provides for annual increases, the status quo obligation does not require an employer to continue making the increases after the contract expires, in most cases. For example, if a contract requires yearly increases in the amount the employer contributes to health insurance, the status quo obligation is to continue to contribute the dollar amount that applied before the contract expired but does not require any post-expiration increases. General Counsel Abruzzo has indicated she will likely press for a change to require increases in pay and benefits that occur over the term of a contract continue even after the contract expires.

General Counsel Abruzzo’s aggressive agenda goes well beyond the four major items discussed above. For instance, the ability of a company to make reasonable work rules may become more limited if unions can claim those rules potentially chill union rights. With the Biden majority firmly in place on the Board, there is a real possibility much of that agenda will become the law of the land.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 273
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About this Author

Maurice G. Jenkins, Jackson Lewis, Civil Rights Arbitrations Attorney, pharmaceutical manufacturing lawyer
Principal

Maurice G. Jenkins is a Principal in the Detroit, Michigan, office of Jackson Lewis P.C. He has practiced labor and employment law for more than 30 years.

A trial lawyer, Mr. Jenkins, who is a Fellow in the American College of Trial Lawyers, has first chaired jury trials, labor and civil rights arbitrations, NLRB hearings and state civil rights administrative cases on behalf of employers in such business sectors as automotive (OEM; Tier .5-4 suppliers and retail), pharmaceutical manufacturing, international, national and...

248-936-1921
Timothy J. Ryan, Labor and Employment Attorney, Jackson Lewis Law Firm
Principal

Timothy J. Ryan is a Principal in the Grand Rapids, Michigan, office of Jackson Lewis P.C. He has practiced exclusively in the labor and employment area since 1987, when he was admitted to the Bar.

Mr. Ryan is a frequent speaker and writer on topics including union avoidance, hiring and firing, family and medical leave, wage and hour laws, and other issues related to labor and employment law for employers. Mr. Ryan represents employers facing legal challenges in the following areas:

  • Union-Management...
616-940-0240
James M Stone Labor & Employment Attorney Jackson Lewis Cleveland, OH
Principal

James M. Stone is a principal of the Cleveland, Ohio, office of Jackson Lewis P.C. From the opening of the office in 2006 until early 2020, Jim served as office managing principal in Cleveland, when he stepped down to focus on his busy practice and increased task force activities within practice groups and industry teams.

With more than 25 years of experience in labor and employment law, he has conducted more than 120 negotiations with unions, represented companies in hundreds of employment discrimination, wrongful discharge, and other claims in court and...

216-750-4307
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