Just a day after the newly Republican-majority National Labor Relations Board (NLRB) restored its “direct and immediate control” test for joint employer status and implemented a new employer-friendly test for handbook policies, it took two more big steps: overturning a ruling limiting the changes employers can unilaterally implement in union workplaces and disallowing so-called “micro-units”.
In its decision regarding unilateral changes, the Board restored old precedent that permits employers to unilaterally change policies without the union’s permission – and without first bargaining with the union – if they have taken similar actions in the past.
In its decision regarding micro-units, the Board overturned its 2011 decision that made it easier for unions to organize very small groups of employees (which, in turn, made it easier for unions to get a foothold in an otherwise non-union company). Instead, under the Board’s decision Friday, the old standard – where employers could establish that all employees sharing a community of interest should be included in the same unit – once again stands, and the playing field between unions and employers has become a bit more level.
These rulings aren’t surprising. As we wrote last week, we expect that the trend of employer-friendly decisions will continue, so stay tuned.
The NLRB’s “ambush election rules” – which became effective this Spring – continue to be challenged by business trade groups. See previous blog posts. These groups, however, have yet to persuade a court that the rules violate any laws. What that means is that employers should take precautionary steps to prepare for a union organization effort, rather than waiting for a petition to be filed. If you wait for that petition, you won’t have much time at all (as little as 10-21 days) to effectively communicate with your employees .
What can be done now?
- Training. Your managers/supervisors need to know how to detect union “storm warnings.” They should be aware – and immediately inform higher management – of:
- Employee complaints changing or increasing
- Employees being out of normal areas
- Employees being on premises while “off duty”
- Employees making unusual requests for information and materials concerning job descriptions, pay, benefits, compensation, policies, etc.
- Employees asking unusually aggressive or argumentative questions at group meetings
- Normally talkative and open employees avoiding speaking with managers/supervisors
- Employee group conversations quieting down when managers/supervisors pass by
- Lunchroom, locker room, and bathroom cartoons and graffiti
- Over-qualified job applicants with spotty backgrounds
- Employee complaints being made by groups of individuals
- Strangers on company premises
- Use of unusual technical language by employees
- Communicate now. Educate your employees on the company’s position on unions and unionization now. Make sure your managers/supervisors are maintaining an open door policy with their employees and continue to train them on effective communication.
- Review your policies and practices. Make sure all employment policies and practices are compliant with employment laws and the views of the NLRB.
- Develop campaign materials in advance if any “storm warnings” are detected. You want campaign materials at your fingertips when a petition is filed so you can start campaigning right away.
The future of the NLRB’s new election rules is unknown. But as of right now, they stand, and employers need to be prepared.
On March 9th, Wisconsin passed right-to-work legislation banning collective bargaining agreements that require private-sector workers to pay labor fees. The law, which makes Wisconsin the 25th state to pass such legislation, becomes effective immediately.
The legislation bans “union security clauses” — clauses that provide for the termination of an employee who fails to join and pay labor fees to the union — from being included in collective bargaining agreements.
Although this type of legislation started in the southern and western states, in recent years, Indiana and Michigan, traditionally union-friendly states, passed similar right-to-work laws. This type of legislation has proven to reduce state-wide union membership.
It seems unlikely that Illinois will implement right to work legislation in the private sector (at least with the current makeup of the legislature), but it is definitely on the forefront in the public sector. Last month, Illinois governor, Bruce Rauner, announced a controversial executive order that would prohibit unions from requiring state workers to pay union fees.
On Thursday, the National Labor Relations Board re-opened the question of whether workers have a right to use their employers’ communications systems (including email) for union organizing and other protected activities.
In 2007, the NLRB handed down its decision in Register-Guard, holding that employees don’t have the right to use employer email systems for non-business purposes (such as union organizing). Since then, many employers have implemented policies requiring that email only be used for business purposes.
The question arose again in 2013 when Purple Communications was accused of committing an unfair labor practice for prohibiting the use of company equipment for non-business purposes. The Administrative Law Judge relied on Register-Guard and dismissed the charge; however, both the NLRB’s General Counsel and the Communications Workers of America filed exceptions, encouraging the NLRB to overrule Register-Guard and find that employees who use email for business purposes have the right to use it for union or organizing activity. In response, the NLRB has invited the public to weigh in (by way of amicus briefs) on whether the Board should overrule Register-Guard .
Employer groups will no doubt come out strongly in favor of upholding Register-Guard , but with the current composition of the NLRB, the employer-friendly holding of Register-Guard might be short-lived.