Unionized or Not, Employers Should be Wary of Changes from the NLRB

A common misconception amongst employers is that they do not have to worry about the National Labor Relations Board (NLRB) if they don’t have a union.? That is wrong and a dangerous mentality. Particularly amidst the huge spike in union organizing campaigns, the increased number of unfair labor practice complaints, a record number of labor strikes, and the NLRB’s recently increased budget.

What is the NLRB?

In general, the NLRB is a federal agency that protects employees' rights to organize and to determine whether to have unions as their bargaining representative.? The NLRB also acts to prevent and remedy unfair labor practices committed by private sector employers.? President Biden has repeatedly pledged to have the most pro-union White House in history and to increase the NLRB’s budget and reach.

Can the NLRB Investigate Claims Against Non-Union Companies?

Yes, absolutely.? The NLRB enforces the National Labor Relations Act which applies both to union and non-unionized companies.

Has the NLRB Been Active?

In short, yes.? At the end of 2022, the NLRB issued a flurry of precedent-changing decisions regarding company property rights, enforceability of company uniform policies, employer requirements to deduct union dues, the size of the group of employees eligible to vote for the union, and damages / penalties which can be recovered from companies for violating federal labor law.

Additionally, the NLRB recently released its priorities for 2023 which are to address:? the definition of independent contractor; a new “joint” employer rule; employer rights to hold required meetings during a union organizing campaign; and a more stringent standard for determining the legality of employee handbooks.

Have Unions Been Active?

Very much so.? Bloomberg reported that, during the first 6 months of 2022 alone, there were 837 elections to get unions in the door. ? The union won 641 of those elections, amounting to a 77% win rate.??

Such union activity is certainly boosted by high profile campaigns against Amazon, Starbucks, Trader Joe’s, Apple, and many others.? This unionizing trend seems to be expanding into industries and areas where union organizers have not historically had much success, such as the tech and service industries.? We are experiencing a nationwide surge in union activity.??

Another telling example of ramped up union activity is the number of labor strikes.? Strike totals reached a 17-year high in 2022.? Starbucks alone faced 107 strikes in 2022.??

What Should Employers Be Doing?

Unionized employers should be keeping a close eye on new developments / changing rules from the NLRB in order to ensure legal compliance.

Non-unionized employers should consider the best practice of supervisor training.? The rules on what supervisors can and cannot say (or do) in response to union rumors / organizing are specific and not necessarily intuitive.? It is important for supervisors to know these rules to avoid legal violations, particularly if the company’s goal is to remain union-free.