Pro-Union NLRB Agenda: Stay Up to Date!!

July, 2015
By Richard H. Wessels, Esq.

Employers need to stay up-to-date on the NLRB’s pro-union agenda. Keep in mind –even though you are non-union and an unlikely union target, there still is a need to stay alert. A large percentage of NLRB cases these days involve “protected concerted activity”. In other words, there is no union involved at all. The NLRB is aggressive in asserting itself in non-union situations and stretching the law to create coverage for non-union employees! 
 
Here is a laundry list of areas where the NLRB is making it easier for unions who want to organize and for non-union employees who wish to challenge their employer: 

• Quickie elections – much shorter time frames.
• Specialty Healthcare types of cases – micro units which give a union almost any voting unit they want.
• E-mail policies – permits use of company e-mail for discussion of union activity.
• Social media policies – vulgar comments are protected activity!
• Employee handbooks – 30 page NLRB General Counsel memo perhaps more confusing than enlightening. The memorandum is, however, useful and must reading, if for no more than the modified rules in the Wendy’s settlement which the NLRB has ok’d.
• Rats, banners and street theater in the construction industry – tougher to get 8(b)(4) violations.
• Post-contract expiration obligations of the employer – reversal of long standing rule that check off does not survive contract expiration.
• Tougher independent contractor rules – easier for union to get independent contractors eligible to vote in union elections.
• Confidentiality agreements – can have a chilling effect on organizing and thus a ULP.
• Non-union arbitration agreements – NLRB says unlawful because it restricts collective action.
• Insubordinate conduct – previously unprotected activity such as profanity, disparagement and vulgarity is now protected.
• Joint employers – franchiser-franchisee relationship becomes joint-employer.
• Confidentiality of witness statements – casts doubt on ability to keep statements confidential in employment-related investigations.
• Wearing of buttons and stickers – employer attempts to control this are regularly struck down by the NLRB.
• Staffing company and host company employees in the same appropriate unit –NLRB has issued a notice to the public inviting briefs on a pending case. This is a clear signal that the NLRB is about to reverse existing case law that forbids inclusion in the same unit without the consent of both employers.

These are all complicated and fact-sensitive areas. As but one example, you might want to consider a disclaimer in your employee handbook to undercut a strained interpretation that it violates Section 7 rights. If you want to talk about any of this, contact me at (630) 377-1554 or by email at riwessels@wesselssherman.com.