Many employers with nonunion workforces are blissfully unconcerned about the National Labor Relations Act. David E. Cassidy of Norris, McLaughlin & Marcus, who focuses on labor and employment issues, explains below why that could be a huge mistake. This has been edited for length and style.
MCC: Recent client surveys show companies’ need for outside labor and employment counsel is growing even at a time when unions have been under pressure. Can you give us the lay of the land when it comes to the state of labor unions today?
Cassidy: Unions have been on the decline for many years. The percentage of private workers they represent is quite low. The national average is somewhere around 11 percent, and that includes public-sector workers. In some states it’s as low as 2 percent. That said, unions are constantly looking to increase membership and remain relevant through organizing activity.
Most employers prefer to remain nonunion, and they resist unions as management feels like it decreases flexibility and there is a loss of direct control because you have a duty to bargain over changes and there is a third party speaking on behalf of your employees. You also have a collective bargaining agreement that needs to be considered, and employers need to comply with that contract in addition to the various employment laws. That’s the backdrop today.
MCC: In what ways has union organizing become easier or more difficult?
Cassidy: The NLRB has taken a fairly aggressive approach to making union organizing easier. In April, they published regulations to implement quickie elections. One of the main gripes of unions was that the process to secure a vote on whether to unionize or not took too long and was too cumbersome. The time period between filing a petition and the actual vote has been reduced, and the process has been streamlined. In that way, union organizing has become slightly easier.
It’s harder because what the unions have to offer today is very different than it was 40 or 50 years ago. There are many laws that protect workers, whether it is safety or discrimination or wage and hour laws. Employees know that unions are on the decline, and many people blame unions for the overall decline in American businesses. Therefore, the unions’ message has less resonance today than it did years ago. Unions, in my opinion, need to readjust their message to remain relevant as the concepts of seniority and defined-benefit pension plans have less appeal to the younger generation. Unions need to figure out ways to partner with management more than combat management. And they need to be able to sell the average worker on receiving something of value for the dues they pay every month.
MCC: With unions on the decline, what relevance does the National Labor Relations Act have for the majority of employers, who deal with nonunion workers?
Cassidy: The relevance comes from the National Labor Relations Board (NLRB), which enforces the National Labor Relations Act. The NLRB has made a number of pronouncements over the years regarding actions by employers that affect nonunion workplaces. For example, the NLRB has issued decisions indicating that employees can use their work email for union-organizing efforts. It has issued decisions addressing the confidentiality of workplace investigations, social media policies, and conflict of interest and code of conduct rules. It has issued decisions regarding the legality of class action waivers in arbitration and lawful no distribution and solicitation policies. It has issued a number of decisions on what employers can and can’t do when their employees are discussing work issues on social media. Those decisions have applicability to a nonunion workforce. There are a number of NLRB General Counsel Memorandum outlining the applicability of the NLRA to these types of policies. There is a good overview in NLRBGC Memorandum 15-04, issued in March of this year.
The key takeaway for employers with nonunion workforces is that the NLRA covers all employees’ concerted protected activity, not just union employees. Many nonunion employers do not consider the NLRA when they’re considering the lawfulness of their policies. A nonunion employer has to be aware of that law, which protects such activities as discussion of wages, workplace conditions, safety, using work email to organize and things of that nature. Much of the Act does have relevance, and in house lawyers need to know about it.
MCC: Given the broad applicability of the Act, why do employers appear to be ignoring its ramifications?
The Act many times gets relegated to second place because the risk of monetary damages is not there. That’s a big reason it gets set off to the side. If you have a policy in place that violates the National Labor Relations Act, the typical remedy is to fix the policy. There’s no fine, there are no attorney’s fees, and there are no money damages associated with it. Having said that, it’s still an important law because employees who go to the NLRB typically are looking to enlist the services of a union and organize the workers. Since organizing is a major concern for many employers, the applicability of the Act is far more important than it might seem on the surface.
MCC: What are some of the major developments in traditional labor law that occurred in 2015?
Cassidy: In the last 12 months or so there’ve been a number of pronouncements. As I mentioned, the NLRB issued a decision indicating that work email can be used for union-organizing activity, absent special circumstances. That was in December of last year. In April of last year, the quickie election regulations were promulgated and took effect. More recently, the NLRB general counsel has issued some guidance about using email authorization cards for the purposes of securing an election. There have been those types of developments. Overall, the board’s approach has been to make organizing faster. I think that will continue to develop in the future – maybe even more so. Certainly with smartphones and the availability of apps to discuss union matters – to swipe right or left, so to speak, for a yes or no vote. There are some apps out there already to allow union organizing to be more technology friendly.
MCC: Do you believe we will see an uptick in union organizing among certain industries?
Cassidy: I think we will. Unions have to adapt. They have not done a good job at that. I think there’s been more of an effort by unions across the country to adapt and become more relevant. I can see organizing attempts using technology and directed at younger or newer industries than the industries unions traditionally have targeted.
MCC: What does the recent decision Browning-Ferris mean for employers as it relates to joint employment?
Cassidy: In that case, the NLRB relaxed the standards for finding joint employment status. Many employers are using agencies to staff their workforces, and under the new Browning-Ferris standard, the standard has been relaxed so that more joint employment relationships will be found. In house counsel should be reviewing staffing contracts in light of this decision.
MCC: Given that our readers are general counsel and chief legal officers for many Fortune 1,000 companies, is there anything else they should be anticipating concerning labor law today?
Cassidy: In-house counsel should be looking several years forward and understanding that as technology evolves, unions eventually will catch up. They’ll be using more social media and more smartphone technology to organize workers. The NLRB will try and keep pace with technology as best it can, as indicated by their recent pronouncement on email authorization cards. In-house counsel should have contingency plans in place. Most companies want to remain nonunion for many reasons. It will become more difficult to defeat an organizing campaign. You need to know what you’re going to do and how you’re going to do it even before the union appears. Contingency planning therefore is vital.
David E. Cassidy, Member, Norris, McLaughlin & Marcus, P.A. [email protected]
Published November 30, 2015.
