It has become increasingly apparent that the Biden Administration’s National Labor Relations Board (NLRB) is aggressively pushing labor-friendly positions, like those seen under the Obama Administration.

Now it appears the NLRB’s General Counsel has taken aim at Section 8(c) of the National Labor Relations Act (the Act), and in so doing undermines 75 years of jurisprudence as “incorrectly concluded.”

On April 7, 2022, the NLRB announced the General Counsel’s desire to restrict employers’ ability to speak to their employees about unions, whether in so-called “captive audience” meetings, or whether “cornered by management while performing their job duties.” The General Counsel claims such meetings and conversations “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.”

Continue Reading NLRB Seeks to Reduce Company Speech About Unions

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On February 4, 2022, President Biden issued Executive Order 14063, requiring certain federal construction contractors and subcontractors “to negotiate or become party to a project labor agreement with one or more appropriate labor organizations.”

The EO’s Project Labor Agreement (PLA) requirement applies to “large-scale construction projects,” defined to include domestic federal construction projects “for which the total estimated cost of the construction contract to the Federal Government is $35 million or more,” subject to adjustment based on inflation.

Find out more in a post by Michael Schrier and Adam Doerr on Husch Blackwell’s The Contractor’s Perspective blog.

In this episode, we take an in-depth look at what an unfair labor practice is, why non-union employers need to be wary of these federal law violations, and how to avoid running afoul of the National Labor Relations Act (NLRA). We will also discuss National Labor Relations Board (Board) General Counsel Jennifer Abruzzo’s recent guidance regarding the types of remedies available when an unfair labor practice occurs.

Join us to listen to the latest episode in our series, “The Biden Administration: Expected Changes at the NLRB.”  Alternatively, a short summary of the topics covered in the podcast is also available on our website.

On November 5, 2021, the U.S. Department of Labor, through the Occupational Safety and Health Administration (OSHA), issued an Emergency Temporary Standard to Protect Workers from Coronavirus (ETS). The ETS covers employers with 100 or more employees—firm or company-wide—and provides options for compliance. The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Alternatively, covered employers may adopt a policy requiring employees to choose between vaccination and regular COVID-19 testing and wearing a face covering at work. The ETS also requires covered employers to provide up to four hours of paid time to workers to get vaccinated and to allow for paid leave to recover from side effects.

Continue Reading Vaccine Mandates May Require Collective Bargaining

The Labor Law Insider continues the discussion in this podcast episode with Tom Godar, Tom O’Day, Terry Potter and Rufino Gaytán on actions employers should take proactively to deter unions from garnering employee support in the workplace. Shifting social issues in and outside the workplace along with significant public support for labor unions subject all companies to the risk of a successful organizing campaign, resulting in a unionized workforce. Tune in to our podcast to learn about the steps all employers should take to protect their direct relationship with employees.

The Labor Law Insider takes on the recharged union optimism and activity in this podcast episode. Moderator Tom Godar is joined by members of Husch Blackwell’s Labor Law team, Terry Potter, Tom O’Day, and Rufino Gaytán, to discuss the increase in public support for unions, recent changes in organizing activities by unions, and implications for employers. With the benefit of their more than 100 years of combined experience in labor law, our panel discusses actions employers should take to maintain a direct relationship with their employees as unions attempt to increase their organizing efforts in the workplace.

Join us to listen to the latest episode in our series, “The Biden Administration: Expected Changes at the NLRB.”  Alternatively, a short summary of the topics covered in the podcast is also available on our website.

 

After President Biden won the November 2020 general election, nobody really expected the National Labor Relations Board’s (“NLRB’s”) employer-friendly doctrines to survive the new Administration. And they won’t. Continue Reading NLRB General Counsel’s Wish List: Reverse the Trump Board

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We are thrilled to welcome Joe Skinner to Husch Blackwell after a long tenure as Labor & Employment Counsel at FedEx. He’s picking up where he left off on the Labor & Employment team in St. Louis and shares this recent article for employers on the challenges of military leave administration under the Uniformed Services Employment and Reemployment Rights Act (USERRA). With regard to unionized workforces, provisions of collective bargaining agreements must give way to USERRA when the federal statute provides more generous employee rights and entitlements.

Read the article for information on ways to avoid mistakes and misadministration of key provisions under USERRA:

 

In episode three of the Labor Law Insider podcast, Husch Blackwell attorneys Tom Godar, David Hertel and Laura Malugade note the confirmation of Jennifer Abruzzo as General Counsel as well as two new nominations to the National Labor Relations Board which, upon confirmation, will usher in a new Democratic majority on the Board. With the new majority, employers can expect to see changes in labor laws, including laws that aid union organization efforts. In episode three of our podcast, our panel of labor law attorneys will discuss potential changes that permit unions to organize and represent small units of employees within an employer’s workforce called micro-units, and union efforts to organize remote workers.

Join us to listen to the third episode in our series, “The Biden Administration: Expected Changes at the NLRB.” In addition to discussing these potential changes, our panel offers potential strategies for employers to proactively address the anticipated changes. Alternatively, a short summary of the topics covered in the podcast is also available on our website.

 

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On June 10, 2021 OSHA issued a Healthcare Emergency Temporary Standard (ETS) to help address the circumstances surrounding occupational hazards existing in health care during the COVID-19 pandemic. The rule was published in the  in the Federal Register and became effective on June 21. Employers must comply with most of  the requirements set forth in the ETS by July 6 of this year. According to OSHA the “ETS is necessary to protect the healthcare workers with the highest risk of contracting COVID-19 at work. Healthcare workers face a particularly elevated risk of contracting COVID-19 in settings where patients with suspected or confirmed COVID-19 receive treatment, especially those healthcare workers providing direct care to patients. “

Fundamental to the rule is the employer’s obligation to establish a plan to deal with these occupational hazards. This plan should be developed after identifying key hazards using an assessment required under the same standard. Areas that must be covered by the plan include communications with employees, application to common situs employers, screening of employees regarding COVID-19, development and  implementation of CDC guidelines consistent with limiting transmission of COVID-19, and PPE use, among many other factors.

The rule states that employers must seek the “input and involvement” of non-managerial employees and their representatives, if any, in both the hazard assessment and the development and implementation of the COVID-19 plan. For union employees, the representative is likely the union who represents the workers. The rule does not provide further definition to this “input and involvement” obligation. That is the extent of the guidance set forth in the ETS itself. The prefacing comments to the rule offers some additional guidance. Significantly, the ETS  does not use the critical word “bargain” or phrase “duty to bargain” as part of the guidelines; rather the language is more general using the phrase “must seek the input and involvement of non-managerial employees and their representatives” and “seek feedback”, etc. In fact, these prefacing remarks indicate that “in the case of the unionized workplace, a safety committee established through a collective bargaining agreement may be an appropriate source for this input based on the definition and scope of the committee’s work.”

At this point in the COVID-19 crisis, many employers have been working with their employees and, where there is a union, by and through their bargaining representatives as to most if not all the issues that are addressed in the new rule. Whether there is the duty to bargain regarding any of these topics will be very site specific to the collective bargaining relationship established at any single site. And, of course, OSHA is not the National Labor Relations Board (NLRB). It remains to be seen if and when the NLRB will weigh in on these matters. Indeed, the duty to bargain in these circumstances was addressed in our previous blog post Labor Relations Issues and COVID-19: Avoiding NLRA Violations Through Proactive Measures, and it  remains  an effective resource in reviewing the issues that may come up regarding such matters. In particular, employers should also conduct a review of their current collective bargaining agreement as to issues of waiver of any bargaining obligation, as that will be the most likely source of any defense to a failure to bargain.