Not Already Seen: NLRB Agenda Includes Another Round of Cancellations – Employee Rights/Labour Relations
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With death, taxes and Midwestern winters lingering into May, the National Labor Relations Board (NLRB, or “the Board”), reversing course after a change in administration, has become one rare certainties on which we can count in this increasingly unpredictable world. .
With a Democratic majority controlling the five-member board and President Biden’s hand-picked general counsel, Jennifer Abruzzo, spearheading the agency’s enforcement efforts, major changes are afoot – thanks to formal rulemaking, case adjudication, and an aggressive enforcement philosophy of the General Counsel’s Office.
Suffice it to say that just as the sweeping changes instituted by President Trump’s Board of Directors and General Counsel have tended to loosen constraints on employers, create (or reinstate) rules disadvantaged by unions and reduce the scope of national labor relations law, the changes being considered by the current Board and General Counsel are likely to improve the ability of unions to organize and win elections, prevent employers from opposing organizing campaigns and expand the scope of workers covered by the law.
Notably, this pro-union political agenda for the NLRB coincides with a number of high-profile victories for organized labor, including successful organizing drives at an Amazon facility in Staten Island, the REI store in Manhattan’s SoHo area, and Starbucks outlets across the United States. States.
Among a number of key issues, the Board and General Counsel indicated that they intended to change course on (or revise) the rules and precedents regarding Employer Handbook policies, the independent contractor status, joint employer status and employers’ ability to hold mandatory bonds. employee meetings during union organizing campaigns. Perhaps most notably, the Advocate General seeks to restore a controversial precedent expanding the circumstances in which the Board will order an employer to recognize and bargain with a union without an election by secret ballot. The Advocate General has raised this issue, and several others, in an ongoing case called Cemex Building Materials. We’ll cover this decision in detail as soon as it’s released, which is expected to happen this summer.
In the meantime, we recommend that all employers, unionized or not, now take the opportunity to review policies and practices that may be affected by Cemex and other upcoming Board decisions. Given the impact of political ping-pong on employers’ obligations under the law, savvy employers aim to create employee relations policies and strategies optimized for sustainability.
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