BREAKING: If Employer Commits Unfair Labor Practice Before Union Election, Union Is Automatically Recognized

In a total game-changer, the NLRB has ruled today that, where an employer commits unfair labor practices before a union election, the union is automatically recognized and the employer must bargain. 

It doesn't appear to apply to every unfair labor practice in every election. But it will force employers to behave better before union elections or risk having the union automatically recognized. Here's a summary:

• It applies where a majority of employees have said they want the union to represent them and the employer either challenges the union majority and demands an election.
• It applies if the employer refuses to bargain without filing a petition for an election and challenges the election due to unfair labor practices.
• It applies if the union has filed a petition for an election.
• If the employer commits an unfair labor practice that requires setting aside the election, the employer will be subject to a remedial bargaining order.
• Employers are no longer allowed to frustrate the election process.
• If the employer interferes with the election process,  NLRB will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer.
• "Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way."

Here's what NLRB said about the new standard:

Under the standard we adopt today, an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly139 files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).140 Section 9(c)(1)(B) of the Act grants employers an avenue for testing the union’s majority through a representation election if the Board, upon an investigation and hearing, finds that a question of representation exists. In order to reconcile the provisions of Section 8(a)(5) and Section 9(a), which require an employer to recognize and bargain with the “designated” majority representative of its employees, with the language of Section 9(c)(1)(B) granting employers an election option, we conclude that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union’s majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by the union.  

 However, if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order. Thus, this accommodation of the Section 9(c) election right with the Section 8(a)(5) duty to recognize and bargain with the designated majority representative will only be honored if, and as long as, the employer does not frustrate the election process by its unlawful conduct. As the Supreme Court observed in Gissel, Section 9(c)(1)(B) was not intended to confer on employers “an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.” 395 U.S. at 599. If the employer commits unfair labor practices that invalidate the election, then the election necessarily fails to reflect the uncoerced choice of a majority of employees. In that situation, the Board will, instead, rely on the prior designation of a representative by the majority of employees by nonelection means, as expressly permitted by Section 9(a), and will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer. 

Our focus, then, is on the unlawful conduct of the employer that prevents a free, fair, and timely representation election. Given the strong statutory policy in favor of the prompt resolution of questions concerning representation, which can trigger labor disputes, we do not believe that conducting a new election—after the employer’s unfair labor practices have been litigated and fully adjudicated – can ever be a truly adequate remedy. Nor is there a strong justification for such a delayed attempt at determining employees’ free choice again where the Board has determined that employees had already properly designated the union as their majority representative, consistent with the language of the Act, before the employer’s unfair labor practices frustrated the election process. Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way.

An employer that refuses to bargain without filing a petition under Section 9(c)(1)(B) may still challenge the basis for its bargaining obligation in a subsequently filed unfair labor practice case. However, its refusal to bargain, and any subsequent unilateral changes it makes without first providing the employees’ designated bargaining representative with notice and an opportunity to bargain, is at its peril.

This will make it much easier for workers who are organizing a union to have their union recognized. And it should stop much of the a**hattery that goes on during union-busting. 

Union yes! 

EEOC Issues New Rules for Pregnant Workers

The Pregnant Workers Fairness Act is now in effect, as of June 27, 2023. It applies to most employers with 15 or more employees. It requires employers to grant reasonable accommodations to employees with known limitations related to pregnancy, childbirth, or related medical conditions.

EEOC has provided details on what is required:

Covered employers cannot: 

• Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
• Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
• Interfere with any individual’s rights under the PWFA.

They provide examples of what may constitute reasonable accommodations:

• the ability to sit or drink water; 
• receive closer parking; 
• have flexible hours; 
• receive appropriately sized uniforms and safety apparel; 
• receive additional break time to use the bathroom, eat, and rest; 
• take leave or time off to recover from childbirth; and 
• be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.  

EEOC states: "Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer." This is the same as the standard for reasonable accommodations under the Americans With Disabilities Act.

While employers were required to provide some accommodations before this law, the standards were much more lax and gave employers more leeway. This new law makes clear that employers must grant reasonable accommodations to pregnant, nursing, new moms, people recovering from miscarriages, people with post-partum depression, and other pregnancy-related and post-pregnancy-related conditions.

This new is in addition to Title VII, the Americans With Disabilties Act, PUMP Act, the Family and Medical Leave Act, and any state and local laws that may apply.

If your employer has denied you a reasonable accommodation for a pregnancy-related condition, contact an employee-side employment lawyer in your state about your rights.

New NLRB Handbook Rules Means Many Employer Handbook Provisions Are Illegal

NLRB has issued a new standard for evaluating employer work rules and employer handbooks. It applies to non-union and union workplaces that are covered under the National Labor Relations Act, which means most employers are covered. Under the new standard, the person challenging a rule or handbook provision must prove that the challenged rule has a reasonable tendency to chill employees from exercising their rights to engaged in concerted activity to discuss or change working conditions. If so, then the rule is presumptively unlawful. 

However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.

This is a sea change from the prior standard, and it will make it much easier for employees to challenge rules. The new standard appeared in a case where the following rules were successfully challenged:

• Confidentiality of investigations
• Limiting personal calls and emails to family emergencies
• No personal electronic devices or cell phones to be kept in lockers and used only on breaks
• No behavior that harms the business reputation of the company
• No activity that adversely reflects on the integrity of the company
• No photos
• No recordings

If these sound familiar, it's because similar rules are in many company handbooks. If they're in yours, you may be able to file an NLRB charge against employer if you want to challenge the rule.

The Board explained how to evaluate a "chilling effect":

In determining whether an employer’s rules or policies restrict or chill employee’s rights to engage in protected activity, one must consider if: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; (3) or the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village—Livonia, 343 NLRB 646, 646–647 (2004). Where a rule or policy explicitly restricts Section 7 activity or can be reasonably read to restrict such activity, the Board is required to evaluate the employer’s asserted business justification “[t]o strike a proper balance between the employees’ rights and the Respondent’s business justification.” Caesar’s Palace, 336 NLRB 271, 272 (2001). The Board must accommodate the respective rights of the parties “with as little destruction of one as is consistent with the maintenance of the other.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

I know. Blah, blah, blah. What this means is if you would think a rule prohibited you from engaging in discussions or activities with coworkers regarding working conditions, it's probably illegal. If the rule was made because of union activity or because employees were discussing a potential union, it's probably illegal. If the rule has been applied to restrict employees' ability to discuss or take action together regarding working conditions, it's probably illegal. 

Some rules that may well be affected by this ruling, in addition to the ones I mention above, include:

• Not saying negative things about the company
• Restricting social media use and comments about the company
• Limiting or regulating the ability of employees to make safety complaints
• Restricting meetings or discussions with coworkers
• Restricting the circulation of petitions
• Prohibiting or limiting comments to the media or government agencies
• Prohibiting insubordination
• General civility rules

You don't have to be disciplined under these rules in order to challenge them. So if you think a rule is illegal, you can contact the NLRB about it. If you have been fired for violating a rule you think may be illegal, especially if you were fired for discussing working conditions with coworkers, contact an employee-side employment lawyer in your state about your rights.