November 2023 Volume 5

OPERATIONS & MANAGEMENT

You’re Not Imagining It, Unions Are More in the News (And in the Government’s View) By Johanna Fabrizio Parker

When I view news lately, the outside world and the topics of my work seem to intersect. As I think you know by now, I practice in the areas of labor and employment law. And I feel like we are seeing issues in labor and employment law play out before us in real time. The more recent – and significant – seem to be the strikes by the UAW (against GM, Ford and Stellantis) and the strike by the Coalition of Kaiser Permanente Unions. In the entertainment world, we have a strike by unionized actors and the end to a 5-month strike by the screenwriters. Some of this is just timing, e.g., for the UAW and Kaiser, the contracts expired in September. But it’s not all timing. We are also seeing Starbucks petition the Supreme Court of the United States to consider (and then, I would expect, reverse) a decision compelling the company to reinstate terminated employee/ union activists. Trader Joe’s employees have started an independent union to organize, and Amazon workers at Staten Island won an election but have not negotiated any contract and (according to the news) are dealing with their own internal challenges.

So, why the focus? Unions certainly are getting some positive results from the National Labor Relations Board (NLRB) and the courts. Within the past year, we have seen the following: • The NLRB under the previous administration had issued new union election rules. The D.C. Circuit Court blocked three changes to these rules – changes that unions had argued were favorable to employers. The blocked changes include: (a) easing the deadline for employers to turn over employee contact information; (b) delaying certification of election results when employers challenge; and (c) limiting who unions can designate as their election observer. Per the Court, the NLRB first has to solicit public feedback before implementing these rules. Following the decision, the NLRB issued a final election rule, rescinding the Trump-era changes altogether. • Unions can have employees sign authorization cards, indicating their wanting union representation. Previously, employers could say – we reject that the cards show majority support. Under the new NLRB rule, this option no longer exists. Employers must either recognize the union when presented with a majority of authorization cards or file a petition for an election. • The National Labor Relations Act (NLRA) protects concerted activity, e.g., employees discussing wages, hours or other terms and conditions of employment. Under new precedent by the NLRB, single-worker protests can fall under this umbrella of protection. Whether such activity is “concerted” and therefore protected will depend on the “totality of the record evidence.” • The NLRB has overturned precedent that allowed employers – when no labor contract was in effect (so before a first collective bargaining agreement or after expiration of a CBA) -- to make unilateral changes to working conditions so long as they were similar in “kind and degree” to past practice. Such changes are now not permitted. • The NLRB has expanded the remedies available for employees in certain unfair labor practices. Previously, remedies were limited to “make-whole” relief, i.e., backpay and reinstatement. Now, there are multiple “extraordinary” remedies available, including requiring, publishing, and mailing a notice and explanation of rights; granting NLRB personnel access to the employer’s facilities to assess compliance; and reimbursing employees for expenses associated with bargaining (including lost wages). And the changing landscape does not apply only to unionized (or potentially) unionized work forces. We also have seen a return to

This seems like a lot of activity given the numbers: in 2022, the Bureau of Labor Statistics reported that only 10.1 percent of workers were union members. And even this number does not really tell the full story. If you look at just the private sector (so, excluding public sector workers), only six percent are union members (again according to the BLS).

FIA MAGAZINE | NOVEMBER 2023 34