NLRB Decisions Impact Non-Union Companies

Now that the election is over, business executives are left to ponder how the outcome will affect them. Over the next several months, we will examine various areas of the law and make some predictions.

One of the most controversial areas in employment law has been the activity of the National Labor Relations Board (NLRB). Traditionally this federal agency has acted as the referee between businesses and the unions that represent their employees. This role, however, is changing. Only 6.9 percent of American workers in the private sector belong to unions — an all-time low (by comparison 35 percent of workers were union members in the 1950s).

Therefore, the NLRB is now creating legal doctrines that affect mostly non-union companies.  This decision helps the NLRB stay in business by finding new missions for itself and also assists labor organizations in their efforts to unionize more employers.

Here are a few updates:

Postings: The National Labor Relations Act (also known as the Taft-Hartley Law) is the fundamental piece of labor legislation on the books. Passed during the New Deal Era, it gives workers the right to join assist or support unions or to refrain from doing so. Traditionally, workers first learn about these rights when they are approached by a union during an organizing drive. In 2010, the NLRB — for the very first time — exercised its rule-making authority to require employers to publicly post prominent notices advising their workers of their right to join a union. To many employer groups, this seemed to put the government’s stamp of approval on union organizing. There has been a flood on lawsuits on this new rule and a federal judge has temporarily enjoined its enforcement. The issue is likely to be finally settled by the Supreme Court.

Social Media: Many companies have policies that require their workers to respect the rights of others and to refrain from making public statements that harm the reputation of the employer.  The NLRB has held that the application of such policies to social media outlets such as Facebook or Twitter is unlawful. The reasoning is that such prohibits inhibit workers from discussing issues of mutual interest in the workplace. Workers are now free to publicly disparage their supervisors or even the company itself — all in the name of protected speech.  The only kinds of speech that seems to be limited are threats and maliciously false statements.

Employment at Will: One of the most basic concepts in labor law is “employment at will.” Simply stated, this means that an employer is free to fire an employee with or without cause or notice except where the firing violates a contract or a specific statute. Conversely, a worker is free to quit a job with or without cause or notice. Many company employment manuals contain explicit disclaims that employment is strictly “at will.” The NLRB has now suggested that such policies inhibit workers from joining or assisting unions by inferring that unions are powerless to protect them from discharge. This fundamental change in American law created such a firestorm of outrage among employer groups that the NLRB has temporarily taken a step back away from its original position. However, some limitation of this historic doctrine is likely in the near future.

Investigations: Employers in the building service industry utilize one primary asset to service their customers: employees. From time to time these employees may complain to the employers about topics as diverse as the cleanliness of the break room to sexual harassment. When that occurs, company representatives commonly respond by launching an investigation to get at the facts. Most investigations involve employee interviews. After speaking to an employee, company representatives often ask the employees to keep the discussion confidential until the matter is resolved. The NLRB has now determined that such requests for confidentiality are unlawful because they might impair employees’ ability to talk among themselves on topics of mutual interest in the workplace. The only time when a request for confidentiality will be permitted is when there is some compelling need for privacy.

Snap Elections: The most common way for a labor organization to gain legal recognition of its right to represent employees is to seek a secret-ballot election run by the NLRB. This process is initiated by the filing of a petition supported by a “showing of interest” by at least 30 percent of the workers in question. It normally takes four to six weeks from the filing of the petition to the holding of the election. During this time, employers typically mount their own campaigns advising workers of the disadvantages of union membership, such as the obligation to pay dues and the possibility of strikes. These employer campaigns are often very effective and companies win a significant proportion of representation elections.

The NLRB is now attempting to streamline the representation process by reducing the time that elapses between the filing of the petition to the holding of the election from four weeks to two.  Also employers will be limited in the number of legal challenges they can raise during the process. These changes definitely tilt the process in favor of unions. After all, the union can take as much time as it wants to spread its message before the petition is ever filed. Employers usually do not start their campaigns until they are informed of the petition. Therefore, under the new rules, companies will lose at least half of their “campaign time.”

There are many other changes underway at the National Labor Relations Board. I will drop in from time to time to see which NLRB decisions will affect building service contractors.

Perry Heidecker is senior counsel for Milman Labuda Law Group PLLC, Lake Success, N.Y. The firm is a full-service Employment Law practice focused on counseling, preventive advice and training, policy and procedure design, representation before administrative agencies, litigation, and appeals.