With the election of Donald Trump on November 6, 2024, many of my clients expect that the National Labor Relations Board (the “Board”) will become much more employer-friendly, like it was during Trump’s first administration. However, there are several reasons all employers should stay vigilant and pay close attention to the Board during the next two months and possibly during the first two years of the Trump Administration.
By way of background, the NLRB is a five-person board established by Congress in 1935 for the purpose of safeguarding and adjudicating the rights set forth in the National Labor Relations Act (“NLRA”). The NLRA essentially protects the rights of non-management employees to (1) make or form a union and (2) engage in protected concerted activities (actions taken by employees, either individually, or as a group of employees, to address workplace issues related to their terms and conditions of employment).
The Board also employs a General Counsel (“GC”), currently Jennifer Abruzzo. The GC regularly issues memoranda (“GC Memos”) setting forth changes to existing law that she would like to see the Board implement and asking each of the 32 NRLB Regional offices to look for violations with issues and fact patterns that would allow the Board to change the law consistent with the GC Memos.
In an unprecedented move, on President Biden’s inauguration day (January 20, 2020), he fired the Board’s then sitting GC, Peter Robb, whose four-year term was not set to expire until November 2021. This move allowed GC Abruzzo to begin issuing GC Memos early in President Biden’s term with the aim of undoing many of the changes made during the Trump administration and further expanding the rights of employees by making unionization easier and expanding the definition of and the protections afforded to “protected concerted activity.” Some examples during the past four years have been new rules (a) limiting the types of policies that can be included in employee handbooks, (b) making it easier for independent contractors to qualify as employees, and (c) forcing employers to unionize even without a union election or despite the fact the employees overwhelmingly voted against unionization.
While it is fully expected that, like her predecessor, GC Abruzzo will be fired on January 20, the Board has been incredibly active in issuing decisions intended to continue making law out of all the GC Memos that have yet to be addressed by the Board during the Biden administration.
In late 2023, the Board created a major shift in the law in Cemex Construction Materials Pacific, LLC (“Cemex”). In Cemex, the company’s employees rejected unionization by a narrow margin after a secret ballot election. As is often the case when unions lose a close election, the union alleged that the company engaged in several unfair labor practices (“ULPs”) during the election campaign. Such allegations are based on restrictions in the NLRA that make it a ULP for employers to “interfere with employees’ rights” under the NLRA. These restrictions are typically included in one of four categories: (1) threats (2) interrogations (3) promises (as an inducement to vote against the union); and (4) spying. In other words, employers can’t engage in any of these types of behavior during a union campaign. In Cemex, the Judge ruled that Cemex committed ULPs by threatening and spying on pro-union employees, restricting the ability of employes to meet with union representatives and hiring security to “intimidate” employees. The Judge then employed a common remedy in such cases by ordering the parties to conduct another secret ballot election or “rerun election.”
On appeal, the Board made two important changes to long-standing labor law. First, the Board ruled that the proper remedy for situations when employers commit ULPs during a union campaign is not a rerun election. Rather, the Board ruled that such cases justify an order requiring the employer to recognize and bargain with the union – even if the employees overwhelmingly rejected unionization.
The second change implemented by the Board is the ability to force an employer to unionize even without a secret ballot election. The Board held that if the union obtained evidence of majority support from the employees (typically in the form of employees signing cards indicating their support for the union), the union could demand recognition from the employer. Once this demand is made, the burden shifts to the employer to demand an election from the applicable Regional Office within 14 days, or the employer would again be forced to recognize and bargain with the union.
This second change is deeply problematic as, even in elections where employees ultimately reject the union (often overwhelmingly), the union is almost always successful in obtaining authorization cards from a substantial majority of employees before filing the election petition with the Board. This confirms the belief of most employers that employees who agree to sign union cards at the request of a few enthusiastic and pro-union co-workers will very often vote against the union in a secret ballot election.
The current Board, consistent with its ongoing goal of making unionization easier, has issued two critical decisions in the past ten days. In the first case, Siren Retail Corp d/b/a Starbucks (“Starbucks”), the Board heard an appeal regarding the types of statements employers can make during a union campaign. The standard for nearly 40 years was expressed by the Board in a case called Tri-Cast, Inc. In that case, the Board ruled that it was presumptively permissible for employers to speculate and share their opinion about how unionization would change the relationship between management and employees. Due to Tri-Cast (and the employer’s right of free speech), employers would regularly speculate about things like the inability of management to address the problems of individual employees if a union prevailed in an election.
The Judge in Starbucks ruled that statements made by Starbucks managers about the inability of the union to change issues related to credit card tips and threats that certain benefits would be lost if the employees unionized constituted unfair labor practices. However, the Judge cited Tri-Cast to rule that Starbucks did not commit ULPs when it held a mandatory employee meeting and warned employees, among other things, about management’s inability to address individual employee problems after unionization.
On appeal, the Board upheld the Judge’s findings that Starbucks committed ULPs but used the case to overturn Tri-Cast and adopt a new standard requiring that all statements from employers during a campaign “be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond its control.” Under this new standard, employers will need to carefully script their opinions and comments to include “objective facts” and “demonstrably probable consequences” – a very difficult standard for managers and supervisors to meet when they are talking to employees in the midst of a union campaign about the impact of a hypothetical union victory and a hypothetical union contract (that will address only some of the terms and conditions of employment and will be the result of negotiations with the union over months or even years).
On November 13, the Board issued Amazon.com Services, LLC (“Amazon”), overturning a 1948 decision, Babcock & Wilcox Co. (“Babcock”). Under Babcock, employers were allowed to hold “captive audience meetings” during a union campaign where they could require employees “on the clock” to gather and hear the employer’s opinions on why they opposed unionization. In Amazon, the Board ruled that captive audience meetings are unlawful unless the employer provides employees with “reasonable advanced notice” that: (1) the meeting is being held so the employer can express its opinions regarding unionization; (2) attendance is totally voluntary and there will be no adverse consequences if employees fail to attend or leave early; and (3) no attendance records will be kept.
The Amazon restrictions may seem fair on their face and many employees, and this Board are inherently mistrustful of employer opposition to unions. However, the Starbucks and Amazon decisions seem to ignore the power of very strong-willed and pro-union employees to “bully” co-workers into both publicly expressing early support for unions and later refusing to listen to and consider the viewpoints of management (many of whom may have previously been union members or worked in union environments) prior to casting their vote. Forcing employees to “declare” their position early on could result in a Cemex request for union recognition without a secret ballot election or, at a minimum, a much less informed group of voting employees.
In short, employers are in for a wild ride during the upcoming months. On December 14, 2024, the term of current Board chairperson, Lauren McFarren will end, and the five-person Board will have two empty seats. President Biden previously nominated Lauren McFerren (a pro-labor appointee) and Joshua Ditelberg (a pro-employer appointee) for five-year terms. The nominations were approved in committee but must receive a majority vote from the entire Senate prior January 3, 2025. If the Democrat-controlled Senate approves the nominations, the Board will retain a pro-labor majority until 2026. Thus, employers will be expected to comply with the new laws until well into President Trump’s administration.
However, many have suggested President Trump may “one-up” President Biden’s unprecedented firing of the then GC Robb on January 20, 2020, by terminating both GC Abruzzo and one or more Board members on inauguration day to ensure he has a majority pro-employer Board throughout his administration. Technically, President Trump can only remove Board members for “neglect of duty or malfeasance in office” but many legal scholars have long opined that this limitation is unconstitutional. To further complicate matters, consider that President Trump aggressively campaigned for support from union members. Sean O’Brien, the Teamsters President who once accepted a challenge to fist fight with Oklahoma Senator Markwayne Mullin on the Senate floor before both were shouted down by Senator Bernie Sanders, was a speaker at the Republican National Convention this year. And forty-five percent of union households voted in favor of President Trump in the last election. Time will only tell what President Trump will do, but all employers should pay close attention to the Board in the coming weeks and months.
D. Zachary Wiseman
moc.nqr@namesiwz
801-323-3349
Mr. Wiseman is an experienced labor and employment attorney whose practice is primarily focused on assisting both private and public employers with a wide range of labor and employment issues. Mr. Wiseman’s labor experience includes the representation of management in collective bargaining, labor arbitrations, unfair labor practice charges, and representation elections.