A Union-Friendly NLRB Makes Drafting Employee Handbooks Harder and Employee Organizing Easier

Employers need to prepare themselves for more interactions with organized labor

Just as the Occupational Health and Safety Administration (OSHA) was announcing plans to make it easier for union representatives to accompany compliance officers on inspections, the National Labor Relations Board (NLRB, or “Board”) made a few union-friendly rulings that diminish an employer’s procedural rights and facilitate the labor organizing process. 

Flip-flopping in the approach to scrutinizing handbook language: The NLRB’s recent Stericycle ruling, 372 NLRB No. 113 (August 2, 2023), reflects a more subjective, case-by-case process for evaluating the validity of workplace rules, harkening back to a methodology that had been established by a previous Board in 2004. The new policy and procedure set forth in Stericycle replaces a more categorical analytical approach that had been in place since 2017. 

Resurrecting the “accelerated” union election timeline: On August 24, 2023, the NLRB announced the acceleration of the pre-election timeline by reviving a 2014 Obama-era ruling. Most significantly, the ruling excludes individual eligibility and inclusion issues from a pre-election hearing. These issues must now be litigated after an election, not before. The new rule becomes effective on December 26, 2023. 

Making recognition easier for organizers: On August 25, 2023, the NLRB published its Cemex decision, which will have a significant impact on how an employer can respond to a union’s demand for recognition. With this ruling, employers have only two choices when a union claims it has supportive union authorization cards from a majority of the bargaining unit: they must either recognize and bargain with the union or file a petition (RM Petition) to have an election. If employers choose the latter route — and are later found responsible for unfair labor practices occurring before the election — they may be subject to a bargaining order instead of a new election. 

The ultimate impact of these rulings is yet to be seen. We expect litigation to proliferate as these rulings potentially affect the power balance between labor and management.

Recommendations for employers 

In light of Stericycle, employers would be wise to review their current employee handbooks, and ask whether any current employee handbook policies potentially violate the employee’s Section 7 rights under the Stericycle approach. These rights are the “right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  

Given the broad language in the NLRB’s Stericycle ruling, many commonplace employee handbook policies — such as those associated with social media, non-disparagement, confidentiality, photography and recording, appearance and dress code, and anti-harassment — may now be called into question. 

Moreover, labor organizing activity is increasing throughout the nation in all sectors of our economy. Employers need to educate themselves about the new “dos and don’ts” associated with any interactions with organized labor. Caution is advised. 

It’s also essential to proactively train managers about what is permissible when opposing a union organizing campaign and to avoid violating the National Labor Relations Act (NLRA). Employers must also promptly consider whether to file an election petition when confronted with a demand for recognition by a union. With these rulings, there is far less time to equivocate. 

Given the current composition of the NLRB, it’s doubtful the trend of union-friendly decisions will end anytime soon. Employers can protect themselves — at least to some extent — by focusing on compliance with NLRA and other federal legislation, and by cultivating healthy and mutually satisfactory relationships with their workforces. Good labor and employment law advice is more important than ever. 

If you have any questions about union organizing activity in your business or industry — or other concerns about your company’s policies and compliance with federal labor regulations — don’t hesitate to contact Orr & Reno for assistance. 

About the authors: Steven L. Winer & Elizabeth C. Velez

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