Keith Eastland Brett Swearingen - millerjohnson.com

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Keith Eastland

Brett Swearingen

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"Joe Biden believes the federal government should not only defend workers’ right to organize and bargain collectively, but also encourage collective bargaining."

"He will ensure federal contracts only go to employers who sign neutrality agreements committing not to run anti-union campaigns."

"He also will only award contracts to employers who support their workers, including those who pay a $15 per hour minimum wage and family sustaining benefits."

- from https://joebiden.com/empowerworkers6


Legislatively — Congress The PRO Act and budget reconciliation…

The National Labor Relations Board (NLRB) A new Democratic majority and perhaps the most aggressive “top cop”

we’ve yet seen…

Executive Actions Biden’s labor task force

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Walk you through the likely changes

How could they affect you and your organization?

We’ll try to be clear about what’s most likely to happen, and what’s more speculative… (Can you say C-O-N-G-R-E-S-S?)

End with some takeaways / potential actions

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Portions of the PRO Act may be included in the Democrats’ reconciliation package.

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₋ Politico, September 21, www.politico.com/news/2021/09/21/ unions-reconciliation-bill-513423


As of this writing, negotiations are continuing and everything is still very much in flux.

But here’s what House Democrats proposed for the $3.5 trillion reconciliation bill in early September— NLRB fines as much as $50K per violation (and up to $100K if violation

results in employee termination)

Potential personal liability for individual directors and officers

Bans on hiring permanent replacement workers, pre-strike lockouts, requiring employees to attend meetings during organizing campaigns, and class action waivers.

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Even if these provisions are included in the final reconciliation package (if there is one), will they survive the budget reconciliation rules?

Reconciliation is a process intended for spending and tax bills and other items that affect the federal budget, not substantive policy changes.

Adding new penalties to employers would have an obvious budgetary effect, but switching the NLRA from a remedial to a punitive enforcement scheme would be a significant change to an 85-year-old statute…

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The Board has a new Democratic majority, which means many employer-friendly Trump-era decisions are likely to be overturned.

Jennifer Abruzzo, the Board’s new General Counsel (labor law’s top enforcer) is very aggressive, and has already shown a clear willingness to challenge even long-established precedents. breaking precedent (and perhaps the law), President Biden fired the former

General Counsel on his very first day in office . . . within minutes

GC Abruzzo has announced she will bring cases that are likely to yield results consistent with her union-friendly agenda.

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In part these changes may amount to a “back door” to the full version of the PRO Act.

We’ll preview 6 of the changes we expect to see, and one potentially big one that’s more speculative.

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The new General Counsel will employ a very expansive view of remedies under the NLRA:

Back pay is the traditional “make-whole” remedy awarded by the Board to victims of unfair labor practices (ULPs), but Abruzzo has asked her enforcement staff to “avail themselves of all remedial tools to ensure [victims] are restored as nearly as possible to the status quo they would have enjoyed but for the unlawful conduct.

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These broader “make-whole” remedies awarded by the NLRB could include consequential damages and front pay.

Consequential damages are designed to compensate employees for economic losses other than lost wages or benefits. E.g., health care expenses incurred after a loss of insurance, damages

resulting from loan defaults, and moving expenses for a new job.

Front pay to compensate employees who cannot be reinstated for income lost during the time it takes them to find a new job.

Full remedies in settlement too!

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In 2017, the Board established a balancing test to govern employers’ facially neutral policies that, when reasonably interpreted, potentially interfere with the exercise of NLRA-protected rights.

Under that test, the Board evaluates both (1) the nature and extent of the potential impact on NLRA rights and (2) legitimate justifications for the employer’s policy.

Both the new GC and Board Chair have targeted a return to the old “non-reasonable” employee test.

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The new Chair believes the Board’s 2017 test is fundamentally flawed because it permits employers to maintain work rules that “reasonably tend to chill employees in the exercise of their rights.”

The Biden Board will very likely require employers to rescind unlawfully-applied rules (even if facially neutral) and republish them with an affirmative disclaimer that the rule will not be applied to NLRA-protected activity.

The Board will likely return to the pre-2017 test, in which workplace rules violated the statute if they could be “reasonably construed” by employees to prohibit the exercise of NLRA rights — even if the rules neither explicitly prohibited protected activities nor were applied to restrict such activities.

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For many years Board precedent often protected employees who engaged in abusive or offensive conduct while in the course of activity otherwise protected by the NLRA (on a picket line, for example).

But the Board struck down this precedent last year. The Board ruled instead that employers can discipline employees for misconduct so long as they can prove they would have taken the same action regardless of the protected activity.

In other words, if a worker would be disciplined for offensive conduct in the break room, he can be disciplined for the same conduct on the picket line as well.

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Last year’s decision reconciled Board law with modern workplace norms and antidiscrimination law.

However, the GC has indicated she’d like the Board to return to its prior, context-specific standards on employee misconduct — one for encounters with management, another for exchanges between employees and postings on social media, and a third for offensive statements and conduct on the picket line.

If the Board’s former rule is reinstated, employers may again find themselves in a Catch-22: Discipline employees for misconduct but risk trouble with the NLRB, or refrain from discipline but appear to implicitly condone such behavior in the eyes of your workforce.

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In 2019, the Board restored precedent allowing employers to restrict employees from using their corporate email systems for nonbusiness purposes.

But the new Board will likely overturn that decision, and rule that employer rules prohibiting employees from using email for concerted activity are presumptively unlawful under the NLRA.

Because the NLRA applies to all employers, not just unionized ones, such a ruling would affect almost every employer that maintains an email system.

Such a ruling could also apply to employees’ use of other electronic platforms in the workplace, such as Discord, Slack, Groupme, etc.

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Reversing a 2015 case, in 2019 the Board held that employers may maintain and enforce rules requiring confidentiality during workplace investigations. If the employer wishes to extend confidentiality after the investigation, however, it must show a substantial business justification.

In its decision, the Board noted that both the EEOC and OSHA — as well as the Board’s own enforcement staff — take steps to preserve confidentiality during their investigations of incidents in the workplace.

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The Board is likely to overrule its 2019 decision and prohibit employers from requiring confidentiality for every investigation.

Instead, the Board will likely return to a framework in which an employer may only instruct employees not to discuss an ongoing investigation if the employer can establish that it has a substantial business justification requiring confidentiality that outweighs employees’ rights to discuss workplace conditions with each other.

Again, this framework would apply to all workplaces, not only unionized ones.

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In general, we can be sure that the Democratic-majority Board will take a broader view of what constitutes “concerted activity” protected by the NLRA than the Republican-majority Board. For example, the GC has

indicated her dissatisfaction with a 2019 Board case that found a casual conversation between employees in the bathroom was not protected under the law.

Employers should be more careful when taking actions that would restrict or discipline employees for talking to each other about conditions in the workplace.

For example, concerted activity regarding Covid-19, such as employee discussions about employers’ mask or vaccine policies . . .

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The new GC has also indicated a desire to revisit the Board’s 52-year-old precedent regarding union recognition by secret ballot elections.

Under this longstanding precedent, employers always have the right to demand an election before recognizing the union — even if the union has signed authorization cards from a majority of workers.

Abruzzo likely wants the Board to change its recognition rules so that an employer must recognize a union with a card majority unless it can establish a “good faith doubt” regarding the union’s majority status.

BUT: Even if we’re right about Abruzzo’s intentions, it’s unknown whether the three Democratic members of the Board will agree.

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Student-athletes under scholarship as “employees” under the NLRA with bargaining rights?

Requiring employers to provide wage and benefit increases post-expiration if the (expired) contract included regular scheduled increases?

Narrowing definition of (illegal) intermittent strikes?

Employers forced to continue dues checkoff after expiration of CBAs?

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The Task Force is led by VP Harris and Labor Secretary Marty Walsh, a former union member. Its goal is a“whole-of-government” approach to worker empowerment.

Biden has directed the Task Force to “identify executive branch policies, practices, and programs that could be used . . . to promote my Administration’s policy of support for worker power, worker organizing, and collective bargaining.”

The Task Force will identify policies “that could be used to promote worker power in areas of the country with hostile labor laws, for marginalized workers . . . and hard-to-organize industries, and in changing industries.”

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The Task Force’s recommendations are due October 23, and are likely to focus on actions the Biden administration can take without Congress. For example, using the government’s spending and procurement powers

to incentivize or mandate action by employers.

Some estimates are that federal contractors employ up to 25% of the U.S. workforce…

So what might happen?

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Requiring recipients of federal construction funding to have Project Labor Agreements (PLAs) or union neutrality agreements

Rules restricting certain federal agency procurement to union shops

Executive Order banning mandatory arbitration clauses for federal contractors?

Increased prevailing wage requirements for federal contractors

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Balancing two important goals —1. Employee engagement is more critical than ever Consider your current engagement efforts / impact of COVID-19

Individual supervisor/department assessments

2. Protecting against legal / financial risks Train supervisors and managers on legal rules/how they can communicate

effectively and lawfully;

Review and update policies and rules promptly; be proactive, not reactive

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1. Supervisor/management training on legal rules, tactics, and lawful engagement efforts

2. Supervisor/department assessments (one-on-ones)

3. Handbook/policy review

4. Preparation or review of a “break the glass” plan of action

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Keith Eastland Brett Swearingen

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Keith Eastland Brett Swearingen - millerjohnson.com