Does the National Labor Relations Board (NLRB) Still Matter?
?By Michael Rudman
One of the most highly anticipated changes with the transition in Washington from one political party to another involves the makeup of the National Labor Relations Board (NLRB). Once known exclusively for its oversight of unionized workplaces, the agency has in recent years expanded its scope to include decisions and actions favoring unions and people trying to organize unions including:
- created micro-unions;
- held corporations responsible for the actions of their franchisees;
- significantly shortened the time between the petition and actual union election (“quickie elections”);
- increased organizers’ access to employees and private property;
- eliminated the use of mandatory arbitration agreements;
- expanded the accepted definitions of ‘protected, concerted activity;’
- impacted the scope of what an employer may establish as policies in its handbook;
- significantly expanded the breadth of employee information that employers are required to provide a union during an election campaign; and
- severely limited the right of an employer to challenge or appeal decisions by NLRB Administrative Law Judges, Regional Directors, and Board Representatives.
Traditionally, the Board is composed of five members, three of which, including the chair, are from the president’s party and two from the opposition party. Political fights over the years have led to nominees not being confirmed for extended periods of time, leaving the Board without a majority or sometimes without even a working quorum.
With Senate action this summer the NLRB now has two Republicans and two Democrats. The status of the president’s final nominee is currently on hold within the Senate confirmation process with no firm date for a vote. Given the likely tie vote on contentious matters, until the final Board member is approved, employers can expect that the existing case law and precedents established by the past administration will remain in effect for the foreseeable future.
Does the NLRB matter now that there is a Republican administration? The answer is yes. NLRB still has lots of power in shaping some aspects of the American workplace. Employers must still be cautious about running afoul of the National Labor Relations Act (NLRA) if they engage in unfair labor practices.
To help minimize the risk of getting in trouble anytime, an employer may be dealing with a union organizing drive it is handy to remember the two most important acronyms in the labor law world, TIPS, and FOE. They serve as a reminder that when an employer has a union or is facing a union drive, mistakes can be costly.
TIPS addresses what an employer’s management team cannot do and FOE what it can do.
An employer may not THREATEN employees with reprisals or other negative actions for discussing, supporting or voting for a union. An employer may not threaten to close or relocate a business in the face of union activity.
An employer may not INTERROGATE an employee about union activity, discussions, meetings or any other events or activities relating to a union.
An employer may not PROMISE rewards, different working conditions, new benefits or other changes in status, compensation or employment in an attempt to discourage an employee from considering a union.
An employer may not SPY on employees or union organizers for the purposes of gaining insight into union sympathizers, union promises, union activities and the like. An employer cannot request or require an employee to act on the company’s behalf in monitoring or reporting on union activities.
Employers are free to use the FACTS of unionization and its impact on employees when discussing the choices employees are faced with in a union election. Employers are cautioned to tread carefully with not only the content of the factual statement but the context as well. Employers are free to provide their OPINIONS on the subject of unionization when discussing options with employees. If it is your “opinion” that the enterprise will relocate if the employees vote in the union, that will constitute a THREAT.
Employers are free to discuss their own EXPERIENCES with a union in discussion with employees. These experiences must be factual and based on history, not hearsay.
AIM HR Solutions offers a primer on Labor Relations that gives a broad overview of current Labor Relations trends and what an employer can and should do to make a union unnecessary to their employees. If you are interested in learning more about labor relations or any other program AIM offers, please contact Beth Yohai at 617-488-8335 or BYohai@AIMHRSolutions.com