Earlier this year, an effort by Amazon warehouse workers to form a union in Alabama failed, but a National Labor Relations Board official late in November gave pro-union workers new life. NLRB Atlanta region director Lisa Y. Henderson ruled for a redo after determining that Amazon meddled in the initial election, The Washington Post reports.
Last month, Starbucks employees at a Mesa, Arizona store banded together to form a union, following the success of their Starbucks counterparts in Buffalo, New York, who voted December 9, to unionize, AZ Central reports. That Buffalo victory created the first unionized Starbucks in the U.S.
And late last month, Amazon settled with the NLRB to permit its workers to freely organize without facing retaliation, HuffPost reports. The e-commerce giant promised, according to the agreement, to contact its warehouse workers, both current and former, who were working from March 22 to present to inform them of their right to organize.
“The settlement outlines that Amazon workers, which number 750,000 in the U.S., have more room to organize within the buildings,” HuffPost reports.“For example, Amazon pledged it will not threaten workers with discipline or call the police when they are engaging in union activity in exterior non-work areas during non-work time.”
NLRB General Counsel Jennifer Abruzzo recently reasserted two positions she laid out this past summer when she supported major changes to U.S. labor law that would greatly favor workers, The National Law Review reports. Under Section 8c of the National Labor Relations Act, employers are constrained in how they can engage with their workers as it pertains to unionization.
While the Act notes that employers’ “expression of any views” is lawful as long its it does not involve “a threat of reprisal or force or promise of benefit,” employers for decade have had wide discretion in how they speak with their employees about the benefits and risks of unionzing.
Abruzzo wants the board to monitor employer statements and misstatements during union campaigns, The National Law Review reports, noting that “closer scrutiny of employer statements (and those of employer representatives and agents) during campaigns would provide unions with additional grounds to challenge losing election results where employees have exercised their statutory right to remain union-free.”
The second position focuses on permanent strike replacements. For more than 50 years employees who went on strike to fight for better working conditions could be permanently replaced by the employer as long as the employer did not illegally interfere with the union. Abruzzo is pushing to hike up the pressure on employers to prove a “legitimate and substantial business justification” for them to bring on permanent replacements.
This requirement would “undermine the NLRA’s stated goal of promoting industrial peace by encouraging more frequent strikes,” The National Law Review Reports. Additionally, Abruzzo would have to succeed in overturning decades of precedent to reach her objective.
“But with a pro-union Board and several more years to institute change, employers should remain vigilant of these potential labor law changes,” The National Law Review reports.
Recent remarks by Abruzzo at the American Bar Association Section of Labor and Employment Law Conference have spurred much consternation from employers, JD Supra reports. “Abruzzo’s broad interpretation of what the Act protects and prohibits, coupled with her intent to impose harsher remedies for unfair labor practice violations, mark trouble for private sector employers,” Sul Kim and Genaira Tyce, partners with Akerman’s labor and employment division, write for JD Supra.
Kim and Tyce lay out 10 steps employers should take this year to reduce their risk if they have to face the NLRB. One major area is to ensure managers are up-to-speed on how to spot protected concerted activity. “Abruzzo has signaled that she will apply a very expansive view on what activities the Act will protect, particularly in areas involving common concerns like the COVID-19 vaccine, social justice issues, and political protests,” Kim and Tyce note. “It is more important than ever to empower your supervisors and managers to appropriately identify and respond to potential protected concerted activity episodes within the workplace.”
Overall, employers will need to devote plenty of time working with their attorneys, as well as labor law specialists, who can help them be proactive in spotting potential trouble that can balloon into bigger headaches. Employers also should get ready to for increased legal challenges by the NLRB.
“We foresee a continued increase in employees in unionized and nonunionized workforces engaging in protected activities at the vendor level, which could mean disruptions,” Kim and Tyce write. “Businesses that rely on goods or services from vendors should consider identifying vendor alternatives in order to prepare for any potential vendor related labor issues that may affect business operations.”