2021 is in full swing and the Biden government is already making waves in the world of labor law, including the resignation of the sitting General Counsel of the National Labor Relations Board within hours of the president’s inauguration. Once Biden has more members appointed to the NLRB – likely later this year – employers can expect significant changes that can affect the way they run their businesses. Let’s take a look at three of the big changes that will affect both union and non-union businesses.
NLRB Human Resources Policy Exam
Under the Obama board of directors, the NLRB set numerous day-to-day human resources guidelines – including those of non-union employers – on the grounds that these guidelines violated the National Labor Relations Act (NLRA). Social media guidelines, confidentiality guidelines, workplace courtesy guidelines and other common guidelines were invalidated in various decisions between 2009 and 2016. The NLRB did this regardless of the business intent behind a rule (i.e., whether there was a legitimate justification).
That all changed in 2017 when the Trump Board issued a decision changing the test the NLRB uses in evaluating human resources policy to include the consideration of corporate purpose behind a rule. Under the new framework, the NLRB confirmed many categories of guidelines that it had previously found to be illegal. It is almost certain that a Biden Board will override the Trump Board framework and transport us back to a time when many day-to-day employment guidelines are invalid.
Flexibility of the employer to manage it under working arrangements
Another major development by the Trump Board came in 2019 when the NLRB adopted the “contract coverage” standard in assessing whether unionized companies have the right to take unilateral action in the management of workers.
As explained in an earlier post: “According to the standard,“ contractually covered ”or“ contractually covered ”is the [NLRB] will examine the plain language of the parties’ collective agreement to determine whether the change made by the employer was within the contractual language that gives the employer the right to act unilaterally. If so, the board of directors will comply with the simple terms of the parties ‘agreement and the employer will not have violated the parties’ terms [NLRA] by changing without negotiation. If the agreement does not cover the employer’s controversial act, the employer has violated the NLRA unless it can demonstrate that the union waived its right to negotiate the change, or that for some other reason it did Had the privilege to act unilaterally. “
This gave companies a far greater degree of discretion than the “clear and unambiguous waiver” standard previously used by the NLRB. A biden board is likely to revert to the narrower standard, which will reduce employers’ flexibility in managing the workforce covered by collective agreements.
Changes to the electoral rules of the Union
Another likely target for the Biden Board is various union electoral rules that are enacted or amended by the Trump Board. First, the new NLRB is likely to revert to a standard that favors “micro-units” established by the Obama Board. Second, new rules enacted by the NLRB last year that affect decertification elections, voluntary union recognition and the construction industry’s working arrangements could be reversed. Eventually, a Biden Board will almost certainly reintroduce, and possibly even expand, the “ambush voting rule” in full, undoing the Trump Board’s efforts to change that framework. Any of these changes would make it easier for a union to organize a workforce and more difficult to remove.
These are just three main issues that companies will need to oversee at the NLRB in the months and years to come. Buckle up, as the magnitude and pace of change seem significant.
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