by Mark S. Mathison, Esq., Gray Plant Mooty, Minneapolis
For the first time in a decade, the National Labor Relations Board (NLRB) is operating at full strength with five members and a confirmed General Counsel. The new board has a union-side majority and appears poised to expedite union organizing and support other collective activity across an increasingly broad spectrum of unionized and nonunionized workplaces.
Unions are powerfully aware that they must seize this moment, and they are organizing new targets and leveraging their board support in hopes of winning over a new generation of workers. Depending on the NLRB’s actions in the coming months, a large mix of employers—including religious institutions, colleges and universities, charter schools and Native American tribal entities—may find themselves in the cross hairs of federal labor law for the first time.
For employers not used to dealing with labor law issues, this is a critical time to assess and prepare for what could be an era of vigorous expansion of union activity and employees’ protected labor law rights.
Expedited union elections
One notable NLRB initiative is the renewed rule-making effort to expedite its union election process. The proposed rule changes would drastically shorten the time for an employer to respond to notice of a union organizing effort and eliminate most pre-election process on fundamental questions about election parameters. Employers are concerned that this will be unfair to them and preclude employees having adequate opportunity to consider the union question.
The rules would also limit or eliminate employers’ rights to challenge key aspects of the election process and there may be inadequate time to deal with issues of voter eligibility and which employees are included in the union.
NLRB’s emerging initiatives
Another notable development is the release by NLRB’s General Counsel of a range of issues that must get special consideration at the NLRB’s Division of Advice before they can be decided. These issues, which give a glimpse of internal NLRB agenda or goals, include:
- The scope of information an employer must provide a union that is trying to organize workers, carrying the possibility that employers may have to provide access to employer electronic communications systems and nonwork areas
- Whether an employer must give a union time with its employees on the clock to respond to the employer’s election campaign messages
- The scope of an employer’s right to set its own terms of employment when it purchases an existing unionized business
- Potential new limitations on the historical right employers have had to permanently replace workers on strike over economic issues
- The extent of an employer’s duty to furnish financial information to a union
- How far an employer and union can go in making agreements on the potential terms of employment when the union has not yet been elected by employees.
Other labor issues
Other issues that are currently before the NLRB include the question of whether tenured faculty at a college or university have the right to unionize. The NLRB appears ready to reverse the existing rule that faculty who share in school governance generally cannot unionize. In the same case, the board is considered broadening its jurisdiction over schools with religious affiliations.
In addition, as has been widely reported, the director of the NLRB’s regional Chicago office recently decided that football players at Northwestern University are employees with the right to unionize.
The NLRB also continues to actively challenge a host of policy issues in nonunionized workplaces, including policies involving social media, confidentiality and arbitration agreements. Generally, the NLRB’s position is that a policy is unlawful if it interferes with rights of employees—even those who are not in a union—to work together to better employment conditions.
What employers should do
Employers that ignore this NLRB activity risk being caught off guard and unprepared if they suddenly face organizing activity or a claim by the NLRB. The best course: review workplace policies now. While different methods will make sense for different employers, consider these tasks:
- Analyzing whether segments of the workforce might be a target for union organization (particularly if an entity has employee categories in which the NLRB is currently showing special interest, such as tenured faculty and football players) to assess labor law risks and customize steps to address them
- Reviewing employee morale and whether additional steps might be warranted to maintain a satisfied workforce unlikely to be interested in union representation
- Preparing a set of template employee communications to be used if organizing activity begins
- Training managers on how the labor law applies to union organizing and other collective activity by employees so as to prevent missteps
- Reviewing workplace policies and practices to ensure they don’t violate federal labor law.
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Mark S. Mathison’s practice focuses on litigation and advising for unionized and nonunionized employers. Contact him at mark.mathison@gpmlaw.com or (612) 632-3247.
