Avoiding Unfair Labor Practices (ULPs)

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In January 2021, I made several “way too early” pre-season predictions about then president-elect Joe Biden’s agenda regarding labor and employment. High on President Biden’s wish list was the Protect the Right to Organize Act (“PRO”), which would substantially strengthen labor law to the advantage of employees and unions. Congressional Democrats have been unable to push the PRO Act through Congress so far, but that does not appear to have inhibited the Biden administration’s attempts to bolster organized labor.

Several high-profile unionization efforts at Amazon, Apple, and Starbucks are indicative of a motivated labor movement. The National Labor Relations Board (“NLRB”) recently reported that union representation petitions filed with the NLRB in the first nine months of fiscal year 2022 (October 1 – June 30) were up 56% from the first nine months of fiscal year 2021.

Even employers who are not facing any attempts at organizing their workforce have felt the impact. The Biden administration’s union-friendly agenda appears to be emboldening the NLRB to target all employers, even if their workforce is not unionized. The NLRB’s new general counsel has issued several edicts directing Board agents to seek more severe remedies for violations of labor law, and expressed that Board staff should pursue cases more aggressively in various areas, including employer handbook rules, confidentiality provisions, and employees engaging in protected concerted activities.

I highlight these three categories of unfair labor practices because they are often implicated even when employees are not part of a union. Anecdotally, I have observed an increase in unfair labor practice charges for these type of violations against non-unionized employers in my own practice. The data also supports this trend: over the past nine months, unfair labor practice charges filed with the Board have increased 14.5%.

Employers that are not used to dealing with unions and are unfamiliar with labor law can avoid some common pitfalls by keeping in mind that the National Labor Relations Act (“NLRA”) protects employees’ right to engage in protected concerted activity, even if they are not union members. This includes the right to discuss terms and conditions of employment with co-workers or members of the public. The following are some examples of situations where protected concerted activity could be implicated:

Employees discussing terms and conditions of employment, such as wages, hours, and working conditions. Even communication outside of work can be considered protected activity. The NLRB recently published an advice memorandum indicating that an employee’s social media post opining that workers leave companies because of bad managers was protected activity, even though the employee did not reference the employer or any specific manager. The memo concluded that the employee’s subsequent termination was retaliatory in violation of the NLRA. Employers should avoid taking any action that could be deemed as restricting employees’ ability to discuss these topics or punish employees that do.
Employee handbooks often contain work rules governing employee behavior, solicitation in the workplace, and dress codes. The NLRB is reviewing workplace rules and policies with increasing scrutiny to ensure that they do not interfere with employees’ protected rights or discriminate between non-union and union activity. For example, an employer prohibiting employees from wearing pins or buttons that display support for a union can be considered an unfair labor practice if employees are allowed to wear other kinds of gear or regalia that show support for a sports team or other cause.
Confidentiality policies are useful tools in helping to ensure that sensitive company information is kept confidential by employees. However, overly broad confidentiality provisions that interfere with employees’ ability to engage in protected concerted activity could be considered a violation of the NLRA. The NLRB may find that a confidentiality policy is too restrictive if it can be interpreted to interfere with employees’ ability to discuss wages or other terms and conditions of employment, even if it does not expressly contain such a restriction.

In this pro-union climate, employers should certainly consult a labor attorney before making employment decisions or creating employee policies that may involve protected concerted activities.

Registration is now open for our 2022 Annual Labor & Employment Law Seminars!