Since President Obama has been in office, the National Labor Relations Board (NLRB) has issued several controversial rules and rulings, mostly in favor of unions. In this video, HR.BLR.com's Managing Editor, Patricia Trainor, J.D., provides details behind the recent NLRB headlines and what the implications are for employers.
Hi, I'm Patricia Trainor, the Managing Editor of HR.BLR.com and I'm here to talk about the NLRB and recent activities within that agency.
First, a little background on the NLRB. The NLRB is the federal agency charged with enforcing and administering the National Labor Relations Act, or NLRA. The NLRB’s functions include conducting union representation elections and investigating and remedying unfair labor practices by employers and unions.
Some of the most important rights bestowed upon employees under the NLRA are Section 7 rights. Examples of the rights protected by Section 7 include forming or attempting to form a union, joining a union whether the union is recognized by the employer or not, assisting a union to organize employees, and, subject to certain exceptions, picketing. Also, employees have the right not to do any of these things.
A very important Section 7 right is the right of employees to engage in concerted activity regarding the terms and conditions of employment. Concerted activity refers to situations were two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.
The NLRA actually provides little guidance as to what sorts of activities are protected by Section 7; so, the NLRB is often left to decide whether particular conduct was protected. And, it’s important to remember that all employees have the right to engage in concerted activity, not just those already in a union.
So, what’s been happening with the NLRB that’s gaining national attention lately? Quite a bit. In fact, many private employers never heard of the NLRB until recently when it has really been in the headlines.
One recent development regards notice posting: The NLRB issued a rule requiring most private employers to post a notice of employee rights under the NLRA. This rule was challenged in a couple of federal district courts. Those challenging the rule argued that the NLRB exceeded its authority in enacting the posting requirement. One district court agreed, finding the rule invalid, while another ruled in favor of the NLRB. This posting rule, which was supposed to take effect April 30, 2012, has been suspended pending appellate court resolution of the issue.
Another development regards so–called quickie elections. The NLRB issued rules streamlining the union election process. These election rule changes were also supposed to take effect on April 30. However, they have been blocked by the federal district court for the District of Columbia. The amended rules would have expedited union representation elections and given employers less time after an election petition is filed to present their views regarding unionization. The district court agreed with business groups challenging amended rules, holding that the NLRB lacked a statutorily required quorum when it voted on them.
Three of the Board’s five members constitute a quorum of the NLRB. In this case, only two members actually participated in the vote on the final rules, rendering the amended rule invalid. The court observed that nothing in its ruling would prevent the NLRB from adopting the rule with a properly constituted quorum. If it does so, the rule will likely again be challenged in the courts.
Employers need to be alert to how these appellate courts rule since they may be affected by the outcome, even if you're a non-unionized workplace. Here at BLR are also continuing to monitor NLRB and court activity in this area.
Meanwhile, the NLRB’s Acting General Counsel is putting increased focus on remedying employer unfair labor practices during union–organizing campaigns. The acting General Counsel has recommended that NLRB regional offices promptly seek an injunction from a federal court ordering an employer to reinstate employees in so-called "nip–in–the–bud" cases––or cases where an employer discharges employees seen as union organizers. The General Counsel wants regional officers to identify nip–in–the–bud cases as quickly as possible and prioritize resources toward organizing campaign cases.
The General Counsel also instructs regional offices to determine how severe of an impact an employer’s unfair labor practices may have had. In some cases, if a regional officer deems it necessary to ensure a fair election, it can impose some unprecedented kinds of remedies. These may include granting the union access to nonwork areas during employees’ nonwork time and giving the union equal time and facilities to respond when an employer addresses employees regarding union representation.
With all of this pro–union activity in the NLRB, employers may be rightly concerned about how to keep their workplace union free. In our next video in this series, I'll share legal do’s and don’ts for employers seeking to remain union free, including 8 specific steps employers can take to keep their employees happy and maintain a unionized workforce. For HR.BLR.com, I’m Patricia Trainor.
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