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Employment Blog

Update: Watch Out for NLRB Activism

Authored by Dean R. Dietrich
Posted on August 26, 2014
Filed under Employment

I recently attended an employment law seminar sponsored by the State Bar of Wisconsin. One of the presenters was the Officer in Charge of Sub region 30 of the National Labor Relations Board. In a very candid and open discussion, the Officer in Charge made it very clear that the activism of the National Labor Relations Board will be continuing and employers should be wary of things coming down from the NLRB.

In particular, he indicated the "quickie election" rules for the processing of a union election petition will likely be adopted by the Board in the near future. I previously wrote a blog (Quickie Election Rule Under Attack) about the administrative rule changes that will call for a very expedited process to consider a union election. One of the most important aspects of these anticipated new regulations is there will not be any hearing prior to an election vote to determine whether a particular employee or position is eligible to vote in the union election. Rather, the election will be held and the ballots from those employees will be held in abeyance and only counted if it is needed to determine the outcome of the election. Hearings on the challenging of eligibility for voting in an election were normally part of the process and required a hearing before the election was actually conducted. That process will change significantly and the election petition will be processed in a very expedited fashion because there will be no opportunity for a hearing on any issues other than whether an election cannot be held because of a "contract bar" (meaning that a labor union with an existing labor agreement already exists).

The other discussion concerned the actions of the NLRB to review company personnel policies and provisions in employee handbooks. Many provisions are being subject to significant scrutiny by the NLRB through the unfair labor practice investigation process. Any provisions in the employee handbook that seem to discourage the right of an employee to talk about wages and working conditions will likely be declared unlawful and a violation of the employee Section 7 rights, including the right to engage in concerted activity relating to the workplace. A recent complaint was filed against Sears and K-Mart challenging some of the language in the employee handbooks of these two companies. Any language that would seem to discourage an employee from talking about workplace issues will be subject to scrutiny by the NLRB. Employers must be aware of these potential challenges because an unfair labor practice charge against the company could become a very effective rallying cry for a union organizing campaign.

The presentation from the Officer in Charge was very open and candid but created a great deal of frustration over potential activism of the National Labor Relations Board. Employers of all sizes must be aware of this potential for intrusion by the NLRB into the day-to-day operations of a company.