Employment Law Observer

Voluntary recognition of a union as the exclusive bargaining representative for employees within an identified bargaining unit of the employer can have potentially game-changing consequences for an employer. However, if the National Labor Relations Board (NLRB or Board) agrees to adopt the position of its General Counsel in a brief filed on April 11th in Cemex Construction Materials Pacific, LLC, No. 28-CA-230115., the landscape regarding union representation of employees in the workplace will change dramatically. It will become much easier for unions to organize and more difficult for employers to insist upon a private ballot election. Employees also will lose the right to vote in a private ballot election in many situations.

The battle over Scabby the Rat took another turn on July 21, 2021, when the National Labor Relations Board issued its anticipated decision and order in International Union of Operating Engineers, Local 150 and Lippert Components, Inc.

In a Hinshaw Insights for Employers Alert, we consider the drastic revisions to the National Labor Relations Act and federal labor policy contemplated by the Protect the Right to Organize Act of 2021. The bill was passed with little fanfare by the U.S. House of Representatives last month.

The United States Supreme Court issued its long-anticipated decision in Janus v. American Federation of State, County and Municipal Employee Council 31 on June 27, 2018.  The five to four majority held that requiring public-sector employees who are not union members to pay union agency fees violates the First Amendment.  In the final paragraphs of the majority opinion, the Court made it clear that in the context of a public sector employer-union relationship, non-member employees in the bargaining unit must provide express consent before union dues can be deducted from their paychecks.  Janus' implications for public employers are wide-ranging. However, the immediate question that unionized public-sector employers must address is how to administer existing agency fee provisions in collective bargaining agreements and distinguish between union members and non-members, whose express consent is now required before union dues can be deducted from their paychecks.  It is important to note that this decision is grounded in constitutional principles and only applies to public sector unionized employees.

Earlier this month, the National Labor Relations Board's (NLRB) General Counsel issued Memorandum GC-18-04 providing guidance on handbook rules in light of the Board’s Boeing Company decision. In Boeing, the Board reevaluated when a seemingly neutral work rule, handbook rule, or employment policy violates the rights of workers granted by Section 7 of the National Labor Relations Act (NLRA). In doing so, it adopted a new test balancing the negative impact a given rule may have on an employee’s ability to exercise his or her Section 7 rights versus the employer’s right to maintain a disciplined and productive workplace. It also laid out three categories of rules: those that are always lawful, those that are usually always unlawful, and those it depends-type rules falling into the middle category. The GC’s guidance sorts common workplace policies into these three buckets.

On Tuesday, the Wisconsin Court of Appeals lifted an injunction entered by the lower court freezing enforcement of 2015 Wisconsin Act 1, Wisconsin’s “Right-to-Work” law, dealing a blow to unions across the state.

How far can employees go during a labor dispute to make their case to the public? For years the National Labor Relations Board (NLRB) has granted employees a surprising amount of leeway, so long as their statements were not made with malicious intent and pertained to an ongoing labor dispute. In other words, employees could go quite far. Fortunately for employers, the 8th Circuit Court of Appeals recently tamped down this enthusiasm and redirected the NLRB to long-standing Supreme Court precedent.