An Extremely Active NLRB Requires HR’s Attention

As appearing in the Human Resource of Central Ohio (HRACO) monthly newsletter


Unless you lived in a cave in 2011 – and your cave did not have WiFi – you likely heard about a lot of changes from the National Labor Relations Board. And, if you’re like most companies I deal with, unless you have a union or are immediately impacted by the changes you heard, you probably didn’t pay too much attention to them. In one ear and out the other. That’s how I approach most legal and legislative updates until someone says “Matt, this stuff matters to you, so listen up.” Well, here I am telling you that what follows matters to you.

Even if your company is union-free, the National Labor Relations Act applies to you and many of these changes target non-union employers more than they do companies with an established labor union. The overall goal of the 2011 NLRB (comprised mostly of former union lawyers) was to make unions more prevalent and expand the reach of the National Labor Relations Act into new areas of the workplace.

Because of the high number of major changes, this article will just highlight what changed in a simple bullet point format. No need to write a tome about these changes, other lawyers have already done that and can be found in Google. Consider this a cheat sheet of sorts, something to make you aware of the new rules.

President Obama appointed three new Board Members to the NLRB without the Senate’s approval. Republican Senators say this is not allowed and are challenging the appointments as unconstitutional. So whether any NLRB 2012 decisions are valid will be determined in the months ahead.

The NLRB prohibits employees from signing arbitration agreements that prevent them from joining other workers in class-action arbitration proceedings or lawsuits. (D.R. Horton, Inc., 357 NLRB No. 184, Jan. 2012)

The NLRB invalidated a personnel policy that prohibited employees from discussing matters that were being investigated by the employer. The Board held that companies can only keep employees from discussing ongoing investigations when testimony is likely to be altered, witnesses need protection, or evidence may be destroyed. (Hyundai American Shipping, Inc., 357 NLRB No. 80, Dec. 2011)

Field supervisors are permitted to encourage workers to vote in favor of a union despite long-standing rules to the contrary. The NLRB felt that the supervisors in question did not have enough authority to speak on management’s behalf and were thus treated as non-managerial employees. (DIRECTV Holdings, LLC, 357 NLRB No. 149, Dec. 2011)

A company rule requiring employees to only perform work during working hours violated the NLRA because such a rule could confuse employees into believing that they could not engage in union solicitation during breaks and lunches. According to the NLRB, “working hours” now means time when you are at work, not time spent actually working. (Hyundai American Shipping, Inc., 357 NLRB No. 80, Dec. 2011)

The Board made it much more difficult for employees to challenge a union’s status as their exclusive bargaining representative after an employer voluntarily recognizes a union (Lamon’s Gasket Co., 357 No. 72, Aug. 2011) or after a company purchases a unionized company (UGL-UNICCO Service Co., 357 NLRB 76, Aug 2011)

The NLRB said that the following policy violated the NLRA: “Voice your complaints directly to your immediate supervisor or to human resources through our ‘open door’ policy…Complaining to your fellow employees will not resolve problems” because it allegedly prohibited employees from speaking to co-workers about terms and conditions of employment. (Hyundai American Shipping, Inc., 357 NLRB No. 80, Dec. 2011)

Micro-bargaining units are permitted. Now, unions can more readily organize employees by job titles and classifications instead of the traditional community of interest standard. Employers face the likelihood of several smaller bargaining units that are easier for unions to organize and several collective bargaining agreements that are more difficult for employers to administer. (Specialty Health Care 357 NLRB No. 83, Aug. 2011) and (DTG Operations, Inc., 357 NLRB No. 175, Dec. 2011)

On April 30, 2012 both union and non-union employers subject to NLRB jurisdiction – which is pretty much every private sector company – must post an “NLRA Rights” poster containing a comprehensive list of employee rights under the National Labor Relations Act. This poster includes passages reminding employees they have the right to act together to improve wages and working conditions, to form, join, and assist a union, and to bargain collectively with their employer. This rule has been challenged as violating the NLRA, exceeding the Board’s authority, and as unconstitutional. I will keep you updated on its status as April 30th approaches.

The NLRB’s new “quickie elections” rule will also take effect on April 30, 2012. Beginning then, the time period between when a union files a petition with the NLRB seeking and election and the holding of the election will be dramatically reduced from the standard ~45 days. Statistics show that the less time employers have to campaign to remain union-free before an election, the more likely the employees are to vote in favor of union representation.

Based on the above changes, prudent employers should: 1) review employment agreements for mandatory arbitration clauses; 2) review handbooks to ensure confidentiality provisions do not violate Hyundai American Shipping and that no solicitation / no distribution policies comply with the Board’s working time versus working hours distinction; 3) determine whether managerial employees can, in fact, speak on behalf of the company; 4) make sure that your “open door” policy does not prohibit legitimate communication between employees; and 5) review titles and classifications of non-managerial employees in case those employees become targets of a micro-unit union organizing campaign.

If you’re saying to yourself, “Matt didn’t mention anything about social media and the NLRB,” you’re right. Social media is so hot right now – meaning that the NLRB is trying to regulate how both union and union-free companies react to employees’ engagement in social media – that a social media update will be an article on its own next month.

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at or directly by cell phone at 614.843.3041.