While private sector union representation has been declining for decades, the last few years have ushered in a resurgence of union initiatives. Importantly, these efforts have been fueled by a labor friendly National Labor Relations Board (“Board”) that has embarked on unprecedented programs to allow for: so-called “ambush” elections; the expansion of the doctrine of joint employment; review of independent contractor misclassification issues concerning bargaining unit issues; expansion of employee protections for the use of social media; and intrusion upon “core” employer prerogatives under the “guise” of protecting “concerted activity” under the National Labor Relations Act (“ACT”).
At the same time, unions have begun to fund grass roots initiatives in an attempt to unionize the service sector industry, recognizing that traditional manufacturing jobs are at best stable or decreasing. Accordingly, employers, more so than the last 30 years, have to understand and plan for these developments. How long these initiatives will continue may well be determined by the 2016 election. In the meantime, however, it is prudent to adopt a wide-ranging program on union avoidance and management training as well as reviewing worker status and employee handbooks as further discussed below.
The New Election Process
Under the new election rules, most elections will likely be held from 10 to 20 days after a petition has been filed with the Board, meaning that an employer will have almost no time to react. The new rules also drastically reduce the number of pre-election hearings that must begin just eight calendar days after the date a hearing notice is issued.
Also, during the period between a petition being filed and a hearing being held, employers are required to file their legal position addressing exclusions from the bargaining unit and the appropriateness of the unit by noon on the day before the hearing begins. Employers must also include a list of prospective voters with their names, job classifications, work shifts, and work locations and provide unions, within two business days of the election agreement or decision directing an election, their employees’ personal telephone numbers and personal email addresses.
Independent Contractor Issues
Additionally, the Board has recently addressed contractor misclassification issues. For example, a new factor the Board has added under its “new” test, concerns an overall evaluation of whether the individual worker is, in fact, rendering services as part of an independent business. But under its recent rules, the Board narrowly focuses on what the individual has actually done with his or her entrepreneurial rights, rather than focusing on their theoretical opportunity. Thus, the Board’s position is that entrepreneurial autonomy must actually be exercised, rather than the individual’s “right” to exercise that autonomy. This test runs counter to other tests announced by the IRS and the DOL.
Also, in late 2014, the Board’s issued a new ruling stating “a joint employment will be found if to exist in the common-law sense, even if there is no actual exercise of control by the alleged joint employer occurred, merely having the ability to exercise sufficient control of the workplace is enough.” This finding may drastically increase joint employment issues and could raise issue bargaining issues with respect to non-union businesses if the other joint employer is subject to a collective bargaining agreement with the joint employees.
Additionally, the Board recently released a Report of the General Counsel Concerning Employment Rules. (“Report”). The Report describes a number of handbook rules that could prove problematic and provides a roadmap for employers on what the Board considers lawful.
Importantly, the Report was issued in order to clear up confusion on social media policies, and the Board’s new interpretation of protected activity:
“Although I believe that most employers do not draft their employee handbooks with the object of prohibiting or restricting conduct protected by the National Labor Relations Act, the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act,” Richard F. Griffin Jr., general counsel of the NLRB, noted. “Moreover, the Office of the General Counsel continues to receive meritorious charges alleging unlawful handbook rules.”
According to the Report, many of the handbook rules violate Sections 7 and 8 of the Act. Under Section 7 of the Act, employees are guaranteed the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as well as the right to refrain from any or all such activities. Section 8(a)(1) of the Act makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.
Here is a sample overview of policy issues:
- Confidentiality – Employers can get in trouble for instituting confidentially policies that prohibit workers from talking about terms and conditions of employment.
- Conduct toward the Company and Supervisors – The right to limit conduct in an employment policy may be questioned, if such policy can be interpreted to prohibit criticism over protected activities. The report points to rules banning “disrespectful,” “negative,” “inappropriate,” or “rude” conduct towards an employer or management.
- Conduct towards Coworkers – Employees also have the right to publicly discuss and criticize their employer’s labor policies with each other. Employers cannot ban “negative” or “inappropriate” conversations between workers.
- Employee Interaction with Third Parties – The Act also gives employees the right to talk with the media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment.
- Restricting Use of Company Logos, Copyrights, and Trademarks – Companies can’t restrict employees’ “fair use” of logos, copyrights, or trademarks, on picket signs, leaflets, and other protest material.
- Photography and Recording – When engaging in protected activity, employees also have the right to take photographs and make recordings. That means employers can get in trouble for completely prohibiting workers from taking pictures and making audio and video recordings at work.
- Conflict-of-Interest Rules – Employees have a right to participate in concerted activity. This could include rights to organize a boycott or protest in front of a company.
As can be seen, all companies (even those currently not organized) must review their employee handbooks in response to these new rules.
For all of the reasons listed above, it is imperative that a comprehensive plan be developed to deal with these issues.