Two recent decisions by the National Labor Relations Board (NLRB) could spell big changes for employers in two different, but overlapping, areas: Employee Handbooks and Union elections. These decisions were the topic of discussion at DRM’s November HR Café with DRM Director Tim Copeland and David Turner, Assistant to the Regional Director of NLRB’s Region 3 office. If you missed the discussion, here is a recap:
The first development of note is the NLRB’s decision in Stericycle, Inc and Teamsters Union Local No. 628, 372 NLRB No. 113 (2023), which concerns the type of standard work rules you might find in a typical Employee Handbook. Such rules could include, for instance, policies or provisions that require confidentiality, require employees to demonstrate civility or “appropriate behavior” in the workplace, restrict an employee’s use of an employer’s communications systems to business-use only, prohibit recordings in the workplace, or any rule that prohibits conduct that could harm an employer’s reputation, integrity, etc.
In other words: the Stericycle decision applies to some of the most typical, common-sense provisions usually found in Employee Handbooks. Under Stericycle, the NLRB announced that such rules will be viewed as presumptively unlawful, if an employee could reasonably interpret a rule as interfering with the employee’s rights to discuss wages, hours, workplace conditions, and other terms and conditions of employment. According to the NLRB, the rule must be viewed “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.”
What does “reasonably interpret” mean, for purposes of applying the Stericycle standard? For now, that is unclear. However, what is clear is that employers whose Employee Handbooks contain such provisions would be well-advised to review these provisions to ensure, at the very least, that they are narrowly tailored to protect the legitimate employer interest at stake, while also ensuring that the provisions could not be construed to include NLRB-protected activity.
The second decision, issued just a few weeks after Stericycle, is Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023). In Cemex, the NLRB held that an employer that is presented with a demand for voluntary recognition by a union must either (1) recognize the union as the bargaining representative; or (2) file an RM petition to test the union’s majority support and/or challenge the appropriateness of the Unit (assuming the union has not already filed its own election petition). Failure to do either of these within two weeks of the Union’s demand for recognition could result in an automatic bargaining order.
The potential impacts of this decision for employers are significant. In addition to requiring an employer to take affirmative steps to quickly challenge a union’s request for recognition, there could also be ramifications in terms of work rules maintained during the period leading up to the election. This is because any violation of the National Labor Relations Act during the “critical period” between a demand for recognition and an election, could also result in a bargaining order under Cemex. This could include, for instance, any work rules that might be considered unlawful under Stericycle. As a result, under the right circumstances, a seemingly innocuous workplace policy in an Employee Handbook could have outsized ramifications in a union organizing environment.
