NLRB Decisions Convey Pro-Union Positions on Several Important Issues

By Blaise Beebe - McMahon Berger P.C.

October 18, 2023

When President Biden took office in 2021, employers anticipated sweeping changes in labor laws that would benefit unions and employees. Over the first two (2) years, little changed in this regard, but 2023 gradually has seen a significant increase in pro-union activity at the National Labor Relations Board (“NLRB”). The General Counsel for the NLRB started the trend with the issuance of various memos identifying issues of importance. The NLRB now has followed suit with several decisions.

On August 28, 2023, in Intertape Polymer Corp., the NLRB nullified the previous Wright Line test clarification issued by the NLRB in its 2019 Tschiggfrie Properties, Ltd. decision. The NLRB reaffirmed the original Wright Line test that existed prior to the Tschiggfrie decision and opined that the clarification in Tschiggfrie actually caused more confusion than clarity. The NLRB’s decision in Intertape held that the General Counsel is not required to prove anti-union animus under a heightened standard. Further, it held that evidence in the record as a whole, whether direct or circumstantial, can support a finding of animus regardless of whether the General Counsel demonstrates that animus was specifically directed toward the employee’s protected activity or even the particular employee. The NLRB reaffirmed that the General Counsel is only required to demonstrate an employer harbored anti-union animus when establishing a reasonable inference that an employee’s protected activity was a motivating factor in a challenged employment action. The General Counsel is not required to link this animus specifically to the protected activity of the charging employee.

On August 30, 2023, the NLRB’s decisions in Wendt Corporation and Tecnocap, LLC severely eroded an employer’s management rights in the context of permissible unilateral changes to terms and conditions of work. The Wendt decision overturned the NLRB’s 2017 decision in Raytheon Network Centric Systems. Raytheon expanded the authority of employers to make unilateral changes regarding the terms and conditions of its unionized workforce during negotiations of an initial contract or a gap period between contracts. Raytheon permitted employers to implement such unilateral changes by relying on past practice consistent with the particular unilateral changes. The NLRB’s recent decision in Wendt prohibits unilateral changes during this time period, holding that an employer may never rely on a past practice that existed before employees were part of a bargaining unit because such changes occurred during a time when the employer had no duty to bargain. The NLRB’s decision in Tecnocap took aim at a different holding from the Raytheon decision and provides that employers may no longer rely on the past practice of unilateral changes made pursuant to the management rights clause of a collective bargaining agreement to authorize unilateral changes during post-expiration and negotiation periods. Taken together, the NLRB’s decisions in Wendt and Tecnocap severely limit an employer’s ability to make unilateral changes regarding the terms and conditions of work relating to its unionized employees during time periods that previously were allowed.

On August 31, 2023, the NLRB issued a decision in Miller Plastic Products, Inc., overturning the previous 2019 decision in Alstate Maintenance, LLC and announced a return to the concerted activity test established in the NLRB’s 1986 decision in Meyers Industries. Under Alstate, the NLRB considered a list of factors to determine if an employee engaged in a protected concerted activity intending to induce group action by fellow employees. The return to the Meyers standard means the NLRB will consider facts “based on the totality of the record evidence” to determine if an employee engaged in a concerted activity and will no longer rely on the “mechanical checklist of factors” established by Alstate. This decision will likely result in a wider range of employee activity being classified as protected concerted activity and allows the NLRB to consider a wider array of factual considerations, circumstantial factors, and evidence when deciding whether an activity is of the type that is protected and concerted under Section 7 of the National Labor Relations Act.

Finally, on August 31, 2023, the NLRB issued a decision in American Federation for Children, Inc., and put its 2019 decision in Amnesty International on the chopping block. Under Amnesty International, the “mutual aid or protection” provision of the Act was held not to extend protection to statutory employees who engaged in concerted activities on behalf of nonemployees. The NLRB held in American Federation for Children, Inc., that the mutual aid or protection provision of the Act does indeed apply to aid or protection offered by statutory employees to nonemployees because such concerted actions could benefit statutory employees in their efforts to improve their own working conditions. This holding means that employers should expect more union interaction between its bargaining unit employees and nonemployees such as interns or independent contractors as well as increased union advocacy on behalf of those nonemployees when a union goal strategically could be advanced by mutual aid or protection efforts.

The NLRB has mounted an aggressive attack on employers and its decisions are designed to favor the advancement of union goals with no signs of stopping. Employers must review existing policies and practices to ensure that employers will be able to successfully combat unfair labor practice charges under heightened evidentiary standards. Additionally, employers must exercise increased caution in implementing unilateral changes to terms and conditions relating to bargaining unit employees. Lastly, employers should revise existing strategies regarding the containment of union activities as a wider array of employee activities will now be characterized as protected concerted activities under Section 7 of the Act. McMahon Berger, P.C. will continue to monitor developments concerning NLRB activities and provide updates as they occur.

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