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National Labor Relations Board (NLRB) Scrutiny Rising for Workplace Policies

The National Labor Relations Board (NLRB) recently changed how it evaluates employer workplace rules in a way that is expected to expose a broader range of rules to enforcement by regulators, even for employers who have not faced any union activity. 

Recent NLRB Decisions

On August 02, 2023 the NLRB issued a decision in Stericycle Inc., adopting a new legal standard for evaluating employer work rules challenged as facially unlawful under the National Labor Relations Act (NLRA) of 1935.  

Under the new standard adopted in Stericycle, the NLRB General Counsel must prove only that “if an employee could reasonably interpret the rule to have a coercive meaning,” the provision is presumptively unlawful. This a speculative analysis made from the perspective of “an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity” and not one based on actual facts. Given the starting point for the analysis, it is easy to construct a scenario, however unlikely, where an employee “might” feel a coercive impact.  While the employer has the right to try to rebut the presumption by proving that the rule advances a legitimate and substantial business interest, and that the employer is unable to advance that interest with a more narrowly tailored rule, it is the opinion of many NLRB observers that this will prove to be an impossible standard for the employer to meet. 

Protected Concerted Activity

Under the National Labor Relations Act (NLRA) of 1935, private-sector employees have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing (e.g., any individual or labor organization), and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.  The National Labor Relations Board (NLRB) enforces the NLRA to protect workers’ full freedom of association, and to restore the equality of bargaining power between employers and employees concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work without fear of retaliation.   

Employees are permitted to participate in “concerted activity” with their colleagues, and employers cannot interfere with this right.  Concerted activity can happen with or without a union and examples include:

  • employees speaking to each other about unsafe working conditions
  • employees discussing wages and working conditions
  • employees participating in a union campaign
  • employees bringing up unequal pay to management
  • an employee discussing workplace grievances on behalf of a larger group of co-workers
  • one or more employees filing complaints with government agencies or speaking to the media about workplace labor concerns
  • work stoppages which traditionally had been associated with the manufacturing sectors, but in recent years have tended to occur in education and health care sectors

While concerted activity is widely protected, making knowingly false or deliberately offensive claims against the employer will not be protected, nor is making publicly disparaging statements about an employer’s business that are not connected to a specific labor dispute.

Unfair Labor Practices

Employers are free to enact workplace policies to facilitate business but those policies can become vulnerable to charges of unfair labor practices if employees believe they unlawfully restrict or interfere with concerted activity. 

Employers may not interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in the NLRA, interfere with the formation or administration of any labor organization, discriminate in regard to hire or tenure of employment to encourage / discourage membership in any labor organization, discharge or otherwise discriminate against an employee because he/she has filed charges or given testimony under this Act, or refuse to bargain collectively with the representatives of his employees.  The NLRA cites some examples of prohibited activities:

  • Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity
  • Threatening to close the plant if employees select a union to represent them
  • Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain, or coerce employees in the exercise of their rights under the Act
  • Promising benefits to employees to discourage their union support
  • Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they engaged in union or protected concerted activity
  • Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by NLRB

Unionization In Recent Years

Today some 16 million employees in the United States are union members, according to data collected by the Economic Policy institute. In 2022, union ranks increased by almost a quarter million,  In addition to high-profile unionization efforts, the Center for American Progress data shows that even though a number of states passed labor-friendly laws this past year, 2023 had the most work stoppages and strikes of any year since 2000.  Some of the larger ones were:

  • 160,000 Screen Actors Guild workers striking for 82 workdays
  • 11,500 Writers Guild workers striking for 102 workdays
  • 53,700 United Auto Workers striking for 43 workdays
  • 75,600 Kaiser Permanente unions workers idling for three workdays

Twenty-seven states have banned union-security agreements by passing so-called “right to work” laws. In these states, it is up to each employee at a workplace to decide whether to join the union and pay dues, even though all workers are protected by the collective bargaining agreement negotiated by the union. 

Employee Engagement Is Key

Employers should proactively work to create an atmosphere where employees never feel they must resort to a third-party to have good working conditions and a positive working environment.  Four hundred Starbucks employees at 21 locations recently filed petitions with the NLRB to join the Starbucks Workers United union.  The employees’ motivations are issues all too common for any business that could have been addressed early: better wages, clear communication, input into decisions that impact their day-to-day work, more resources to complete their work, and improved working conditions.  Though an employer may believe it is treating employees well, employees may not agree if the employees do not feel they have control and a voice.

Even employers that have not had to deal with unionization could find themselves in an unfamiliar environment as employees engage in long-protected concerted activity.  When an employee believes their right to concerted activity has been violated, the employee has the right to file a complaint for investigation by the NLRB.  Complaint investigations of unfair labor practices against employers generally result in a settlement or court order to fix the violation.

Your commitment to your employees and willingness to work with them will make the employees feel supported.   Giving employees the appropriate tools to do their job, compensating them well, and listening to their grievances should always be top priority to keep your workplace running smoothly.  The following are common sense suggestions for avoiding finding yourself in an NLRB proceeding:

  • Maintain competitive pay practices
  • Resolve disputes early and amicably using standard company procedures
  • Provide employees with a mechanism to seek further support if their immediate supervisor is perceived biased or for some reason is unable to resolve the issue at hand
  • Employee engagement surveys can take a pulse of the employee population to highlight areas of improvement
  • Engage in two-way communication with employees and participate in good faith to address employees’ concerns within reasonable limits
  • Maintain a respectful tone and tenor during the communications and be empathetic if you cannot commit to all the changes requested
  • Line managers need to take the lead in resolving employee issues as well as maintaining a workplace culture where employees feel respected, valued, and that their concerns are not just heard but addressed in a timely manner.


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