SCMP Breaking News - Labor & Employment
Year 8, Vol. 8 - September 6, 2023
On August 31, 2023, the National Labor Relations Board (“NLRB”) issued several notable decisions (all decided during the week of August 22-26, 2023) that may significantly impact the workplace. Below we summarize the most important takeaways for employers.
1. Solo complaints may be considered "protected concerted activity" under Section 7 of the National Labor Relations Act (“NLRA”).
In Miller Plastic Products, Inc., 372 NLRB No. 134 (Aug. 25, 2023), the NLRB found that an employee’s remark during a meeting that “we shouldn’t be working” after he and others were informed of the Company’s decision to remain open during the COVID-19 pandemic constituted protected concerted activity, though no other employee openly agreed with the employee during such meeting. The employee also later told a supervisor that he thought they should close after another employee had been sent home because his wife had contracted COVID. In addition, the employee continued to speak to other employees to encourage them to voice their complaints to management.
The Board determined that the activities of a single employee in enlisting the support of fellow employees in mutual aid and protection constitutes concerted activity and that, in this case, the employee’s “statements to management and conversations with coworkers were targeted at amassing employee support or spurring employees to speak up about a genuine safety concern for the purpose of changing the conditions at [his] facility for the benefit of every employee in the plant, as opposed to mere griping.” As such, the Board found that the employee’s comments constituted protected concerted activity because they sought to bring “truly group complaints to the attention of management.”
2. Actions on behalf of non-employees may be considered protected concerted activity under section 7 of the NLRA.
In American Federation for Children, Inc., 372 NLRB No. 137, a 3-1 majority determined that an employee had engaged in concerted activity protected under the NLRA when she advocated among her coworkers for their support in ensuring the rehire of a former colleague who was awaiting renewal of her work authorization status. The Board held that, while the employee had acted alone, she had acted for the purpose of mutual aid or protection when trying to induce group support among her coworkers to secure the rehiring of their former colleague.
Importantly, the Board found that, while the former employee in this case would be considered a “job applicant” and, thus, would be considered an “employee” under the definition of the NLRA, concerted activity by employees on behalf of non-employees could also constitute protected concerted activity under the NLRA when it can benefit employees.
The Board explained that under the “solidarity principle,” employees can invoke Section 7 of the NLRA for the mutual aid and protection for issues affecting non-employees, as long as those efforts also help statutory employees. The Board stated that, “by helping non-employees, employees aid and protect themselves whether by directly improving their own terms and conditions of employment or by creating the possibility of future reciprocal support from others in their efforts to better working conditions.”
3. Employers may be required to bargain with unions without a representation election.
In Cemex Construction Materials Pacific, LLC., 372 NLRB No. 130, the Board announced a new framework for determining when employers are required to bargain with unions without a representation election.
Under the new framework, when a union requests recognition on the basis that a majority of employees in the appropriate bargaining unit have designated the union as their representative (by gathering the necessary signed authorization cards), an employer must either recognize and bargain with the union (without holding an election) or promptly file an RM petition seeking an election. However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the election petition will be dismissed, and the Board will automatically order the employer to recognize and bargain with the union.
According to the Board, the revised framework represents an effort to “better effectuate employees’ right to bargain through their chosen representative, while acknowledging that employers have the option to invoke the statutory provision allowing them to pursue a Board election”, but, in so doing, they must refrain from committing unfair labor practices.
4. Employers have a duty to bargain with unions before making changes in terms and conditions in the workplace during a contractual hiatus or during the negotiations of a first contract or a new contract.
On August 30, 2023, the NLRB issued two (2) full-Board decisions (both decided on August 26, 2023), Wendt Corporation, 372 NLRB No. 135 and Tecnocap, LLC., 372 NLRB No. 136, holding that employers have a statutory duty to bargain with unions before making unilateral changes in terms and conditions in the workplace during a contractual hiatus or during the negotiations of a first contract.
First, in Wendt, the Board held that employers could not make discretionary unilateral changes affecting a unionized workforce during the negotiation of a first contract. In so holding, the Board reaffirmed the longstanding principle that an employer may never rely on an asserted past practice of making unilateral changes before employees were represented by a union (when the employer had no duty to bargain) to justify unilateral changes after the workers have selected a bargaining representative. Accordingly, employers are impeded from making any unilateral changes to terms and conditions of work after the workers have selected a bargaining representative and while they are in the negotiation process.
Meanwhile, in Tecnocap, the Board held that an employer’s past practice of unilateral changes pursuant to a management-rights clause in a collective-bargaining agreement could not justify unilateral changes made after the agreement expires and while bargaining for a new agreement was ongoing. The Board explained that such a practice harms the collective-bargaining process because it forces unions to bargain to regain terms of employment lost to post-expiration unilateral changes by the employer and discouraged unions from agreeing to management-rights clauses to begin with.
What do these decisions mean and how do they impact your business?
Employers should be cognizant that a complaint by a single employee may constitute protected concerted activity under the NLRA, even when done to benefit a non-employee.
Employers should be aware of their duty to bargain with the union once the employees have sought representation and of an employer’s right to file an election petition.
Refrain from enacting any unilateral changes to terms and conditions of work following expiration of a collective bargaining agreement and/or while negotiations are ongoing for a first or new contract.
FINAL NOTE: The impact of these recent Board decisions may affect your business in different and particularized manners and, thus, your approach and strategy must be carefully considered in light of your particular circumstances. We are here to assist you.
SCMP will continue to monitor developments regarding this important article and will provide updates in our newsletter as new information becomes available.
Should you require further advice or assistance in relation to this matter, please contact us at (787) 945-0380.
Because of the general nature of this newsletter, nothing herein should be construed as legal advice or a legal opinion. SCMP Breaking News and all its content is property of Silva-Cofresí, Manzano & Padró, LLC
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