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Jul 5, 201209:53 AMCounselor's Corner

With Annie Raupp

The NLRB signals shift in enforcement focus to non-unionized workplaces

The NLRB signals shift in enforcement focus to non-unionized workplaces

Debate surrounding the budget repair bill kept Wisconsin’s public sector unions in the headlines for much of the past year. Although less publicized here in Wisconsin, things have not been quiet in the private sector, either.

The National Labor Relations Board (NLRB), the federal agency charged with enforcement of the National Labor Relations Act (NLRA), recently promulgated a rule that would require all employers to post a notice in a “conspicuous place” advising employees of their rights under the NLRA. Under the so-called “poster rule,” employers would also be required to publish a link to the notice on internal or external websites if other employment policies or workplace notices are also posted there. The poster rule was scheduled to go into effect on April 30.

After it was announced, various business lobby groups filed lawsuits across the country challenging the rule. These groups argued that the NLRB did not have the authority under the NLRA to require that all employers affirmatively advise employees of their right to organize. The groups also pointed out that the poster is one-sided because it makes only brief reference to the right not to organize and entirely fails to mention how to decertify a union or opt out of union membership.

In one such case, the United States District Court for the District of Columbia upheld the rule but significantly weakened its impact by stripping the NLRB of its enforcement mechanisms. Specifically, the court held that while the rule could stand, an employer’s failure to supply information did not rise to the level of an unfair labor practice. In such form, the rule is mostly bark with little bite. On April 17, the United States Court of Appeals for the District of Columbia Circuit granted an injunction prohibiting the NLRB’s enforcement of the poster rule pending the outcome of an appeal of the lower court’s decision.

With the legality of the poster rule in limbo, the NLRB has resorted to alternative methods to reach out to unionized and non-unionized employees alike. In June, the NLRB launched a new website. In an apparent nod to increasing public sentiment against unions, the website barely mentions the word “union.” Instead, it focuses on the often overlooked fact that the NLRB protects the right of employees to work together for their mutual aid and protection, even if not part of a union. The website advertises 12 recent cases from across the country where the NLRA has been construed to protect the concerted activity of non-unionized employees.

Hitting close to home, the website describes a case involving a non-unionized plastics manufacturing plant located in Oshkosh. According to the website, the company disciplined and terminated a group of women who had requested a meeting with human resources to discuss their concern that their supervisor was a convicted sex offender. The NLRB concluded that the employees had been retaliated against for engaging in protected activity (despite the fact that they were not organized) and notified the company that a complaint would be issued. The parties apparently reached a settlement that involved removing any written warnings and reinstating terminated employees with back pay.

Lessons learned

There are a number of lessons that employers can derive from the above-described developments in private sector labor law. First, it appears that, at least for now, employers are not required to post the NLRB’s poster. Stay tuned for updates on the outcome of the appeal and other developments concerning the NLRB’s rulemaking authority.

Second, regardless of the ultimate decision on the legality of the poster rule, the NLRB is already seeking out new ways to inform employees of their right to organize, while at the same time minimizing employees’ right to not organize, to decertify, or to opt out of union membership. This is evidenced by the NLRB’s launch of its new website immediately following the adverse decisions on its poster rule.

Finally, employers should be aware that in the wake of decreasing union membership and increasing anti-union sentiment, the NLRB is expected to step up its enforcement of the NLRA in non-unionized workplaces. The consequences of the NLRB’s new approach could be costly and wide-ranging for employers. Taken to its extreme, the NLRB’s position could mean that protected concerted activity is established any time an employee in a non-unionized workforce raises a workplace issue that arguably may affect a single other employee.

Under this increasingly expansive definition, it is very difficult for an employer to draw the line between protected and unprotected activity, which increases the uncertainty and cost of dealing with its workforce. The NLRB’s new website foreshadows that non-unionized business should plan and prepare for the significant time and expense of defending unfair labor practice charges that were in the past primarily targeted at unionized businesses.

For additional information on the NLRB’s rulemaking authority and other labor and employment issues, please visit godfreykahnlawblogs.com.

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About This Blog

Annie Raupp is an associate in the Green Bay office of Godfrey & Kahn and is a member of both the Labor and Employment and Litigation practice groups.

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