Thursday, July 25, 2013

The NLRB and Your Workplace

If you’ve been following this at all, you know that last year, President Obama employed several controversial "recess" appointments, two to the National Labor Relations Board. Several federal appeals courts challenged those appointments, and the U.S. Supreme Court will consider the issue in its upcoming term. That decision will determine the legitimacy of all the NLRB rulings since the president made those appointments, putting more than a thousand recent determinations in jeopardy (we can only hope!).

Those recess appointments became a critical bargaining chip in last week's Senate negotiations over filibuster rules. Republicans agreed to not filibuster several presidential nominees, including the Labor secretary and the EPA administrator.

In return they demanded that the White House offer up two new nominees for the NLRB. Those two are Nancy Schiffer, who has been a lawyer for the AFL-CIO and the United Auto Workers, and Kent Hirozawa, chief counsel to the NLRB.

What does this mean to business? Potentially, a lot, and what it means probably won’t be friendly to businesses that are not unionized. The National Labor Relations Act does apply to nonunion employers as well. Here’s a good article explaining how nonunion employers are subject to the NLRA: Warning for Non-Union Employers: The NLRB is Watching You by Tanja L. Thompson of Little Mendelson.

A recent article from the HR Policy Institute here outlines some of the probable outcomes of a Board with these very pro-labor members. Of the most important actions for employers to take note are:

Quickie Elections. The Board is likely to again issue these rules that would be to enable a union to obtain a vote within 7 to 21 days after filing a petition and would eliminate a number of rights that employers now have. Employers would have just days to provide employees with information and to show them a comparison of the pros and cons of unionization (which they would never truly get from union organizers) and employees who want to remain independent will have limited time to lobby their co-workers to oppose unionization. The result is that employees will not be fully informed about unionization, making it easier for union officials to expand their ranks. Many feel efforts to speed up the election process is being driven by the ever decreasing union membership.

Further Regulation of Workplace Policies in Nonunion Settings. The Board has been ruling against employers' policies on social media, workplace misconduct investigations, and others finding that they "chill" employees from freely discussing workplace concerns and engaging in disruptive activities to try to change them. These have been grossly unwarranted intrusions into private, nonunion businesses ability to manage their workplace. This will likely continue and become even more intrusive.

Increasing Union Access to the Workplace.  It’s been widely recommended that employers be cautious about allowing charitable and other solicitations in the workplace if they want to avoid providing the same access to union organizers.  The Board is also likely to expand the right of off-duty employees to enter the workplace to engage in union organizing activities.

Since the NLRA was passed in 1935, thousands of federal, state and local laws and regulations governing almost every aspect of the employment relationship have come into existence. When widespread abuses have occurred, Congress and the various regulatory agencies have responded with broad laws that go well beyond protecting against the specific abuses that gave rise to them. It seems the current NLRB is intent on expanding their (over)reach to effectively subject businesses’ otherwise-legal policies to ever newer levels. While we should all be very concerned about this effort, we should also recognize the desperation in these moves – an attempt to bolster the flagging numbers of union members, and less about attempts to improve the lot of employees.

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