Union-friendly changes in the works at U.S. labor board

(Reuters) – The U.S. National Labor Relations Board’s Democratic majority is poised to make a series of key changes to federal labor law in 2023 that will aid unions amid a surge in organizing that gained momentum during the COVID-19 pandemic.

The NLRB and its general counsel, Jennifer Abruzzo, have signaled their interest in overturning a number of Trump-era decisions that were favored by business groups.

Here is a look at five areas where the NLRB is likely to have the biggest impact this year.

WORKPLACE RULES

The NLRB is widely expected to raise the bar for companies to prove that routine workplace policies do not interfere with workers’ rights under federal labor law, in a reversal of rulings by Republican appointees. The board last January called for amicus briefs on the issue in a case involving a sanitation company’s policies barring worker conduct that could harm its reputation or create conflicts of interest.

Unions and workers routinely accuse employers of using workplace rules such as non-disparagement, non-solicitation and social media policies to stifle organizing. A 2017 decision involving Boeing Co requires them to prove that companies had no legitimate reason to adopt specific rules.

The Trump-era board subsequently ruled that certain policies — including requirements that internal investigations be kept confidential and bans on outside employment — are always lawful under the Boeing standard. The NLRB could now revert back to a more worker-friendly standard adopted in 2004 that said policies are unlawful when they could be “reasonably construed” as restricting protected activities.

The case is Stericycle Inc, National Labor Relations Board, No. 04–CA–137660.

INDEPENDENT CONTRACTORS

The board could soon make it easier to show that workers are a company’s employees and not independent contractors under federal labor law, allowing them to join unions and providing protections against retaliation.

The NLRB is considering the issue in a case involving a union campaign by makeup artists and hairstylists whom the Atlanta Opera claims are independent contractors. The union says the board should abandon a test adopted in 2019 that raised the bar to prove employee status.

Under the National Labor Relations Act, only employees can unionize and are protected from retaliation for advocating for better working conditions. In the 2019 ruling, the board said that a worker’s opportunity for profit or loss and whether they operate an independent business are the main factors in determining their classification.

An Obama-era decision involving FedEx drivers said so-called entrepreneurial opportunity was only one factor among several to be considered in determining independent contractor status. The board could revert back to that standard, which business groups have said is confusing and unpredictable.

The case is The Atlanta Opera Inc, National Labor Relations Board, No. 10–RC–276292.

CAPTIVE AUDIENCE MEETINGS

Along with rolling back Trump-era precedent, the NLRB is also likely to set its sights on curbing the common practice by employers of requiring workers to attend meetings designed to deter unionizing.

Jennifer Abruzzo, the NLRB’s general counsel, in an April memo said so-called captive audience meetings discourage employees from exercising their right to refrain from listening to anti-union messages, making them illegal under federal labor law. A month later, Abruzzo’s office accused Amazon.com Inc of violating the law by holding mandatory staff meetings at a New York City warehouse to discourage unionizing. Amazon has denied wrongdoing.

An NLRB spokeswoman said in early December that Abruzzo’s office was also close to filing a complaint against Apple Inc for holding captive audience meetings at an Atlanta retail store. A union in May withdrew a petition to hold an election at the store.

Any attempt to prohibit captive audience meetings will be met with sharp criticism and likely legal challenges from business groups, who say the meetings are a valid exercise of employers’ free-speech rights and are important in allowing workers to make informed decisions.

The case is Amazon.com Services LLC, National Labor Relations Board, No. 29-CA-292392.

ELECTRONIC SURVEILLANCE

The increased use of technology to monitor and manage workers will likely come under scrutiny from the NLRB in the coming months. Abruzzo in an October memo said she plans to ask the board to limit employers’ use of “intrusive” tools such as GPS and webcams because of their potential to discourage workers from unionizing.

Echoing claims by unions and advocacy groups, Abruzzo said she is concerned that electronic surveillance and software used to set production quotas are preventing workers from having discussions that serve as a necessary prelude to collective action, including union campaigns.

Abruzzo in the memo did not identify specific cases her office is working on, but directed regional staff to refer cases to her involving electronic surveillance. She said she would urge the board to rule that electronic monitoring is only legal when employers can show it serves a legitimate business need.

Our Standards: The Thomson Reuters Trust Principles.

Daniel Wiessner

Thomson Reuters

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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