June 16, 2022

Union Election Petitions Increase 57%…and That’s Not All!

The National Labor Relations Act (NLRA) and National Labor Relations Board (NLRB) have been making recent headlines.  From challenging an employer’s social media policy as “overbroad” to speculating whether the firing of employees who publicly critique an employer violates the NLRA.

Let’s give ourselves a quick refresher.  Even if your workforce is 100% union-free, your non-supervisory employees still have legally protected rights under Section 7 of the NLRA. Specifically, they have the right to act in concert for their mutual aid or protection, such as discussing their wages with one another, or complaining about the employer’s employment practices, policies, or programs. Section 8 of the NLRA prohibits the employer to interfering, restraining, or coercing employees in the exercise of their Section 7 rights. A common example is when a manager tells employees that wages are confidential information, and they should not discuss their wages with one another. Oops.

Over the years, the interpretation of what constitutes a Section 8 violation has varied. In the past, it included a policy that was “facially neutral” but could result in corrective action for engaging in Section 7 activities, even if it was never applied or enforced. The rationale was that it might have a chilling effect upon employees’ exercising those rights. The rule in place today was established by the Board in 2017. It applies a two-part test with three subcategories. The purpose of the change was to balance employees’ NLRA rights and employers’ legitimate business justifications.

Expect the pendulum to swing, yet again.

Last summer, NLRB General Counsel Abruzzo published her first memorandum. She provided a list of topics she would like to see the NLRB address. Just a few included “employer handbook rules, confidentiality provisions in separation agreements, defining the scope of protected concerted activity…Weingarten rights, employee status, mutual aid or protection, and employer duty to recognize and bargain,” to name a few!

On April 6th, the NLRB reported that the number of petitions it received for union elections increased 57% in the first half of its 2022 fiscal year.

Take care of employee relations, today. Otherwise, you may face union relations tomorrow. Want some proactive tips? Join this month’s webcast, “Tips for Maintaining Positive Employee Relations,” July 27th, 3:00 – 4:15 p.m. ET.