By Jim Dudlicek / NGA Director, Communications and External Affairs
With a labor-friendly National Labor Relations Board in 2024, now is the time for all grocers to stay up to speed on the changes in union rules and labor department regulations, and what they should be doing to train their managers and supervisors on the new requirements.
The National Grocers Association hosted a recent webinar designed to help grocers navigate these complexities to ensure their business is fully compliant, including the latest about the joint employer rule. The session also explored recent changes at the NLRB that will make it much easier for unions to organize in 2024, including a change in the “quickie-election rules” and how employers should respond to demands for recognition.
Leading this discussion was Kara Maciel, a founding partner of Conn Maciel Carey in Washington, D.C., and chair of the firm’s national labor and employment practice group. Maciel was joined by Andrea Chavez, senior counsel in CMC’s Los Angeles office.
Here are some key takeaways from the discussion:
What is the final joint-employer rule? Issued on Oct. 26, 2023, it re-establishes the Obama-era standard of joint employment, which includes employers who indirectly affect employees’ terms and conditions of employment or who reserve the right to control but do not exercise that right. Scheduled to take effect Feb. 26, it defines a joint employer as two or more entities with an employment relationship with the same group of employees, where each entity shares matters governing essential terms and conditions of employment, such as wages and duties.
What does that mean in terms of unionized employees? Under the rule, joint employers have a duty to collectively bargain with labor unions. Additionally, unfair labor practice liability for the actions of one joint employer can be imposed on another entity if they were aware and did nothing to protest it. Previously neutral employers are now susceptible to legal picketing as primary employers.
What are the next steps? While monitoring several legal challenges, joint employers should review relationships with third parties, revise contracts to minimize join employer control, and train managers and employees on the new rule.
Union recognition elections. Effective Dec. 26, 2023, this new rule drastically shortens the election process. Employers should be aware of all relevant election timelines before a union demands recognition based on signed authorization cards; train supervisors and potential voters about the union election process; and stay apprised of potential legal challenges to the final rule as there has been constant back and forth over the past several years through the appellate courts.
More expanded union protections. In several recent cases, the NLRB has expanded protections for employee advocacy in the workplace. Among them: Last August, the board issued its decision in Cemex Construction Materials Pacific, announcing a new standard for determining when employers are required to bargain with unions without a representation election: When a union requests recognition on the basis that a majority of employees favor it, an employer must either recognize and bargain with the union, or file a petition seeking its own election within two weeks.
Work rules and handbook policies. The board revised its standard for assessing whether an employer’s work rules unlawfully restrict protected employee activity. Work rules will be deemed unlawful if they have a “reasonable tendency” to chill employees from exercising their organizing rights. The board also reverted to its pre-2020 “setting-specific” standard for determining whether an employer lawfully disciplines an employee for otherwise protected activity.
Severance agreements. The board reinstated its standard for restricting employee severance agreements, specifically certain confidentiality and non-disparagement clauses that could chill employees’ rights to participate in board investigations.
What further changes are anticipated? Banning mandatory meetings with employees on working time to educate them about the negative aspects of unionization; expanding employees’ right to use company email for union activity; prohibiting overbroad non-compete agreements; expanding the union’s right to access employer’s property; and requiring a stricter standard for employing permanent strike replacements.
The NLRB continues to deal with funding and staffing shortages. Meanwhile, union activity has increased, with nearly 2,600 representation petitions filed during 2023, up from just over 1,600 in 2021. Nearly 20,000 unfair labor practice charges were filed in 2023, up from just over 15,000 in 2021.
For more exclusive insights, view a recording of the complete webinar at https://attendee.gotowebinar.com/recording/5316412935150071979.
