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More Labor Favors: What the NLRB’s Recent Legal Changes Mean for Union and Non-Union Employers

Shortly after the midterm elections ended, the NLRB granted labor unions several more favorable changes to the law. Most of these changes will impact employers regardless of whether they have a unionized workforce.

In one major change, the NLRB held that both union and non-union employees have a presumptive right to use their employers’ e-mail, intranet, and similar communication tools to discuss union organizing, workplace protests, and other similar activities. Under this new rule, if an employer gives an employee access to email or other communication tools, the employee can  use those tools to engage in ‘protected concerted activities’ unless the employer satisfies a difficult showing. The gamut of ‘protected concerted activities’ is immense – generally covering any action an employee takes that is arguably designed to improve working conditions. For example, employees may presumptively use company e-mail or instant messaging applications to discuss strikes, criticize employer’s policies, or advocate for a labor union. Although this new rule does not necessarily allow employees to do this during “working time,” employers will need to exercise significant care on a practical level in order to enforce such limits without violating federal labor law. 

In a separate action, the NLRB finally implemented the ‘ambush election rules’ that have been pending in various forms for years. (We have discussed these rules in more detail on several occasions in the past). It now is very likely that these rules will become effective April 14, 2015. Among other things, these new rules will help unions obtain elections much sooner than they otherwise could after first ‘coming out of the woodwork’ with an initial showing of support. Previously, it could take unions 60 days or longer to obtain elections after making their initial filings; now, unions can obtain elections within three weeks of announcing that they are attempting to organize a workforce. For non-union employers, this means they will have even less time to prepare written materials, train their supervisors about what they can and cannot do or say, and otherwise determine how to respond to and defeat a union organizing campaign. Thus, now more than ever, employers need to be prepared in advance with a comprehensive union avoidance plan. 

In a decision that will be critical for unionized employers, the NLRB changed the longstanding standard for when it will defer to arbitration decisions in cases where employees have filed both grievances and unfair labor practice charges involving the same conduct. Most unionized employers know that employees often file grievances and ULP charges at the same time, even though both arise from the same underlying events, because this can improve the employees’ leverage, among other strategic benefits. The NLRB’s decision means that employers will need to take several additional steps in most cases to avoid a situation where they prevail on the grievance but then have to litigate the ULP issue separately. Under this new standard, the NLRB generally will “defer” to an arbitrator’s decision only if the employer shows that the employer and employee (though the union) agreed to allow the arbitrator to decide the ULP issue, they actually presented the ULP issue to the arbitrator (instead of just the underlying facts), the arbitrator actually considered the ULP issue, and NLRB precedent reasonably supports the arbitration decision. As with most issues, the NLRB reserved great discretion as to when an arbitrator's decision is “reasonable.” Ultimately, this decision means that unionized employers should take specific steps in advance in order to avoid effectively giving a union-represented employee a ‘second chance’ at a denied grievance.   

Finally, last Friday, the NLRB General Counsel followed through with a previously announced decision that could dramatically expand ‘joint employer’ liability. As this Firm previously discussed, the NLRB General Counsel announced last July that he planned to issue unfair labor practice complaints against McDonald’s USA LLC based on events that allegedly involved franchisees and their employees. On Friday, the General Counsel announced that he had issued those complaints. If the General Counsel succeeds in expanding the applicable joint employer standard, this would have major consequences for franchisors and franchisees, as well as businesses that either provide or utilize contracting/subcontracting, temporary employment services, or similar arrangements. Although the General Counsel’s decision is far from the final word on the matter, employers in potentially affected industries should ensure they remain apprised on the subject.  



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