Union Awareness: Don’t be Caught off Guard

Union Awareness: Don't be Caught off Guard

Unions and union organizing have been around a lot longer than most of us. Indeed, California Employers Association got its start back in 1937 due to unionization efforts in San Francisco. Employers saw employees getting support and created CEA for their own support system! 87 years later, CEA continues to provide employers with Peace of Mind when it comes to employment and labor law issues.

What in the NLRB is Going On?

We are in unprecedented times when it comes to employee relations and the National Labor Relations Act (NLRA or the Act). Unionization efforts are regaining momentum and the National Labor Relations Board (NLRB), which enforces many employee rights regardless of union status, is giving employees greater access to unions. The NLRA affords several protections to all employees including openly discussing wages and terms and conditions of employment among other things. The Act also protects employee rights to "concerted action" or the right to get a group of employees together to discuss working conditions and work together to try to improve those conditions. All employees are protected under the Act regardless of whether there is Union representation.

The current NLRB, which enforces the Act, is led by its General Counsel, Jennifer Abruzzo. Abruzzo has stated unequivocally that the Board intends to expand employee rights and Union access in all aspects of its jurisdiction. Some examples are provided below, along with a checklist that both Union shop and non-Union employers can use to protect themselves from liability under the Act.

Employee Handbooks and Policies

The NLRB in the Stericycle decision, recently changed the way it will evaluate reasonable workplace rules under the NLRA. This decision applies to all private sector employers, whether unionized or not,and is retroactive.

Under the new Stericycle standard, a challenged workplace rule will be presumed unlawful if the NLRB General Counsel proves that the rule has a reasonable tendency to chill employees' exercise of their rights. Unfortunately, this ruling leaves more questions than answers, as it gives a very broad discretion to the Board to determine whether an employer rule or policy is in violation of the Act. Practically speaking, employers should assess whether their policies could be interpreted to restrict employee rights. For example, a blanket "no gossiping" policy would likely violate the NLRA, or a policy instructing employees to only discuss workplace concerns with their supervisors. As such, employers should avoid any ambiguity in policies, as this will heighten the scrutiny of whether the policy is lawful. Some policies where employers may want to take a closer look include code of conduct, social media, and use of cellular devices/computers.

Expansion of Remedies if Violation of NLRA

Although many remedies are currently available for NLRA violations, the General Counsel has made it clear that the NLRB intends to expand upon available damages if an employer violates employee rights under the NLRA. For example:

• If economic loss is found remedies including health care expenses, credit card late fees, or loss of home or car
• 100% backpay plus front pay in lieu of reinstatement
• Training employees, supervisors, and managers on compliance with the Act
• Expanded union access and reimbursement of organizing expenses
• Broad cease and desist orders
• Other remedies that "may be appropriate in a particular case" demonstrate broad discretion afforded to the NLRB

Other Issues on the Horizon

The General Counsel has also indicated an intent to make it easier for the Union to access the worksite and meet with employees. This means employees will have a greater likelihood for success if they claim employer interference with employee rights under the NLRA. The Board also plans on making it easier for Unions to speed up representation elections, making it more likely for an approval vote from employees.

How Can CEA Help?

Follow our blogfor our next installment of Union Awareness.

If you need more resources around Labor Relations-whether your workplace has a union presence or not-we have experts here to support you! Members can call 800.399.5331 or email [email protected].

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