Monthly Archives: August 2023


Lindner & Marsack, S.C., one of the region’s most respected and long-standing management-side labor, employment and worker’s compensation defense firms, today announced several team members honored among the Best Lawyers in America® in the upcoming 2024 edition.

Attorneys recognized include:

“We greatly appreciate the acknowledgment of leading industry publications and ranking services as a validation of the work we do to help employers in Wisconsin and across the country navigate their toughest legal challenges,” said Wistrom, Firm President. “While our interests always lie first and foremost with the daily needs of our clients, to have our work recognized by colleagues and peers is a great source of pride for our entire team.”

Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Rankings are based on a rigorous process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. Its first international list was published in 2006 and since then has grown to provide lists in more than 75 countries.

“For more than 40 years, the rigorous methodology of Best Lawyers has ensured the integrity and esteem of our legal recognitions,” said Best Lawyers CEO Phillip Greer. “It is with great pleasure that we continue to provide potential clients with the pinnacle measurement of credibility through our Best Lawyers awards as they search for counsel.”


By Attorney Kristofor Hanson

In its August 25, 2023, decision, the National Labor Relations Board (“NLRB” or “Board”) paved the way for a union to represent employees without a formal vote. Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130.

The case involved Cemex, a multinational construction materials company, and the Teamsters, who were seeking to organize a bargaining unit consisting of Cemex’s ready-mix drivers. A majority of Cemex’s ready-mix drivers signed authorization cards signaling their desire for the Teamsters to serve as their bargaining representative. The Teamsters then petitioned for a Board election. According to the Board, in the lead up to the vote, Cemex management engaged in multiple unfair labor practices (ULP), including discharging a driver for union activity, and threatening job losses, wage freezes, reduced benefits and other reprisals if the union was successful in its efforts. The Board held the election and the Teamsters lost, 179-166.

Historically, unfair labor practices like that occur during an organizing campaign unless particularly severe, would result in a second election, if the union had lost the first. Under Cemex, however, the Board held that if an employer commits unfair labor practices during a campaign significant enough to require the setting aside of an election, the Board will issue a bargaining order rather than a second election.

In addition, the Board held that when a union collects authorization cards from a majority of employees in an appropriate bargaining unit, unless the employer promptly files an election petition with the Board, the Board will issue a bargaining order. According to the Board, “promptly” means within two weeks, unless extenuating circumstances are present.

Therefore, if a union presents an employer with proof that a majority of employees have signed cards, unions can request that the employer begin bargaining. If the employer refuses for more than two weeks and has not filed for an election, the union can file a ULP charge with the Board, and the Board will order the employer to bargain.

However, if an employer who petitioned for an election violates federal labor law in a way that would require setting aside the election, the petition will be dismissed, and the NLRB will order the employer to recognize and bargain with the union. This is a significant change from precedent, which allowed employers to refuse to accept evidence of majority support of a union and required that the union petition for a representation election.

The Board stated, “[t]he Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment….” The Board also stated that an employer has the right to challenge a union’s claimed majority via the election process but is not allowed to abuse that process.

Employers presented with authorization cards by a union should immediately confer with labor counsel and petition for a representation election. Employers may then make lawful efforts to combat unionization in the lead up to the election. Failing to petition for an election will now guarantee that the union will represent at least a segment of the employees of your business.

Should you have questions concerning this or other labor matters, please contact our office.


By: Kristofor L. Hanson and Alexandra (Sasha) Chepov

On August 2, 2023, the National Labor Relations Board adopted a new standard for analyzing the legality of facially neutral work rules that do not expressly restrict employees’ rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”). In Stericycle Inc., 372 NLRB No. 113, the Board overruled the legal framework established by the Board in Boeing Co., 365 NLRB No. 154 (2017), later clarified in LA Specialty Produce Co., 368 NLRB No. 93 (2019). In doing so, the Board adopted a standard by which the legality of a facially neutral work rule is determined by assessing whether the rule has a reasonable tendency to chill employees from exercising their Section 7 rights.

Section 7 of the NLRA states generally that employees have the right to unionize and to join together to advance their interests as employees. It also makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights.

The Boeing standard required the Board to evaluate two key factors when assessing the legality of facially neutral work rules maintained by employers:  1) the nature and extent of the potential impact on employees’ NLRA rights, and 2) the employers’ legitimate justifications associated with the work rule. The Boeing standard allowed the Board and administrative law judges to deem a work rule lawful simply because the employer had legitimate business justifications for implementing it.

In addition to this standard, the Boeing majority created a categorical classification system to provide greater clarity and certainty when evaluating the legality of work rules under the Boeing standard. Under this system, a facially neutral work rule would fall in one of three categories. Category 1 of the Boeing categorical classification system was designated for rules that did not interfere with employees’ Section 7 rights or where the adverse impacts on Section 7 rights were outweighed by justifications associated with such rules. Facially neutral work rules in Category 1 were always lawful for employers to maintain. Work rules that were sometimes lawful to maintain, but which warrant scrutiny in each case, fell in Category 2. Lastly, work rules that fell in Category 3 were always unlawful to maintain given that their impact on protected activity could never be justified by an employer.

In Stericycle Inc., the Board recognized that the Boeing standard appropriately recognized that employer interests should factor into the Board’s analysis, but criticized the interpretive principles adopted in Boeing as giving too little weight to employees’ Section 7 rights and too much weight to employer interests in that it permitted employers to adopt overbroad work rules that chilled employees’ exercise of their Section 7 rights.

To remedy this, the Board adopted a new standard that requires the General Counsel to prove a challenged rule has a reasonable tendency to chill employees exercise of their Section 7 rights. Under the Stericycle Inc. standard, the General Counsel will meet her burden if an employee could reasonably interpret the rule to have a coercive meaning, even if a contrary noncoercive interpretation of the rule is also reasonable.  If the General Counsel carries her burden, the employer’s work rule is deemed presumptively unlawful. An employer then has an opportunity to rebut the presumption by proving that the rule advances legitimate and substantial business interests that cannot be achieved by a more narrowly tailored rule. If the employer proves its defense, then the work rule will be found lawful to maintain.

Notably, the Board’s decision states that under the Stericycle Inc. standard, facially neutral work rules will be interpreted 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. As a result, the employer’s interest in maintaining a work rule is immaterial to the determination of whether the rule is lawful.

In support of its departure from the Boeing standard, the Board clarified that the new standard still provides employers the necessary leeway to maintain rules of their own choosing to advance legitimate and substantial business interests. However, these rules must be narrowly tailored to significantly minimize, if not altogether eliminate, their coercive potential. If employers do so, their rules will be lawful to maintain.

As the Board’s decision in Stericycle Inc. applies to virtually all private-sector employers, regardless of whether their workplace is unionized, employers along with labor counsel should review and revise employer handbooks and policies to ensure that they are narrowly tailored and in compliance with the new standard established by the Board.

If you have any questions about this material, please contact Kristofor Hanson by email at or Alexandra (Sasha) Chepov at, or any other attorney you have been working with at Lindner & Marsack, S.C.