One year during the holidays, probably when I was about six or seven, I was gifted a Magic 8 Ball.  Hours were spent asking what I believed to be the most salient questions of the day, such as “Will the White Sox ever win the World Series?” or “Am I going to be an astronaut when I grow up?” or “Does this girl like me?”  Fast forward forty-plus years to my non-astronaut job, and the question I get most often from clients this time of year is, “Should Employers have any hope for impartiality and good decisions from the National Labor Relations Board (“NLRB” or the “Board”) in 2023?”  Posed to the old Magic 8 Ball, the answer is “Don’t count on it.”

If the past week is prologue, 2023 is shaping up to be more 2022 than 2020.  Consider the following pro-Union, pro-employee decisions issued by the NLRB:

• Redefining “make whole” awards to include damages above and beyond backpay, for example, reimbursement for medical/transportation/legal expenses, increases in health insurance costs, in addition to other out-of-pocket expenses;

• Reversing precedent and permitting “micro-units” once again while shifting the burden to Employers to demonstrate the inappropriateness of a petitioned-for units under the “overwhelming community of interest standard”;

• Rejecting a request to undo the disclaimers, an Employer must provide to workers when defending unfair labor practice charges; and

• Limiting property owners’ rights to oust non-employee protesters from its property.

All of these decisions were split, with the three Board Members appointed by a Democratic president constituting the majority.

This week, the Magic 8 Ball provided the answer “Signs point to yes” when asked whether captive audience meetings (e.g., mandatory meetings where employers can relay facts, opinions, and experiences to employees to try and lawfully persuade them to vote against union representation) will be eliminated next year.  The NLRB General Counsel gave this present to unions/employees when she argued in a post-hearing brief that employer captive audience meetings are inherently coercive and should be outlawed.  It is expected that the Board will agree, effectively stripping one of an employer’s most effective tools to educate employees as to the risks of unionization.

The Magic 8 Ball was kind when it answered, “Better not tell you now,” about whether the General Counsel’s Notice of Proposed Rulemaking will ruin the holidays for employers.  Any day now, we expect a reversal of the joint employer test, which would restore the Obama Board’s holding that two separate entities will be found joint employers, even if the secondary employer possesses only indirect control, which never is exercised.  This is a complete 180 from the NLRB’s current position on joint employers, where the secondary employer must exert substantial direct and immediate control over the primary employer’s employees.

 The General Counsel also is expected to formalize her more recent Notice of Proposed Rulemaking, which will bring back or modify:

• “Blocking charges” when unfair labor practices (“ULPs”) are committed during representation elections.  Instead of going ahead with elections and impounding ballots, the Region will indefinitely postpone elections, potentially for years, until ULPs are investigated and ultimately adjudicated.

• The voluntary recognition bar.  Procedural safeguards (i.e., notifying the NLRB of voluntary recognition and allowing a 45-day window for a challenge) would be swept away in favor of a complete and immediate bar that would preclude employees from decertifying unions they did not elect and/or rival unions to file an election petition.

• Construction industry voluntary recognition rules where employers/employees/rival unions will be limited to six months to challenge voluntary recognition under a pre-hire contract.  Likewise, the Board will honor collective bargaining agreements that seek to convert Section 8(f) contracts (which can be terminated with proper notice upon expiration) to 9(a) agreements (which would need to be decertified by employees).

 With such favorable policies coming from the Board, the Magic 8 Ball has suggested that “It is decidedly so” as to whether we should continue to expect an increase in union organizing and strikes.  Representation petitions increased by 53% this calendar year, and high-profile organizing and disputes at Starbucks, Amazon and Apple littered the news.  The New York Times’ employees went on strike, and Twitter janitors also walked off the job.  With the Board making it easier than ever to unionize, employers will face heightened challenges to remaining non-Union.

While the prognosis does not look great, there is one case that may receive a favorable result for employers.  The United States Supreme Court granted certiorari in a case called Glacier Northwest which, if it finds for the company, will allow employers to pursue litigation against unions that intentionally engage in property damage.  There, a union struck a concrete contractor when it was about to make a pour, effectively destroying the concrete and costing the employer several thousands of dollars.  The employer sued under an intentional tort theory, but on appeal, the Court of Appeals held that when an activity (such as the picketing in this case) is arguably subject to Section 7 or 8 of the Labor Act, state and federal courts must defer to the Board.  As the Board has found this activity protected (and consequently, the employer unable to recoup damages), a favorable decision from the Supreme Court would eliminate a tool unions have used to exert maximum (yet lawful) economic damage in labor disputes.

The Magic 8 Ball says it is “Very doubtful” that “help” will arrive for employers from the Board before the next presidential election, at its earliest.