NLRB Continues to Identify Non-Unionized Employers as a Target of Enforcement

With its latest memorandum “Mandatory Submissions to the Division of Advice,” the National Labor Relations Board continues to make expansion of its role in regulating all workplaces, unionized or not, a major priority.

This latest memorandum follows last year’s “Report of the General Counsel Concerning Employer Rules,” which highlighted recent Board decisions and General Counsel Richard Griffin, Jr.’s views on permissible and impermissible employer policies.

The “Mandatory Submissions to the Division of Advice” memorandum reinforces the notion that employer handbook policies and workplace practices are not a “set it and forget it” endeavor. Regardless of whether a workplace is unionized or not, employers must take notice of the NLRB’s guidance and consider whether they must revise their policies and day-to-day practices. In fact, General Counsel Griffin’s Mandatory Submissions memorandum identifies a number of policy priorities specifically targeting non-union employers such as:

• Expanding the ability of unions to use employer e-mail systems for organizing purposes, and challenging discipline for impermissible uses as prohibited spying.
• Treating independent contractors as employees for organizing purposes.
• Challenging “English only” rules as violations of employee rights to engage in collective activity.
• Giving employees in non-union companies the right to bring a union or other representative to investigatory interviews.
• Expanding the scope of damages available to “salts” who seek employment for the sole purpose of trying to unionize the company and have no intent to remain a permanent employee.

The Board also identifies other issues that are difficult or lack clear precedent as a priority, including whether unions may use flash mobs, loudspeakers, and corporate campaigns to disrupt company operations and facilitate top-down organizing, and whether a newly organized employer is prohibited from disciplining or firing employees until it has reached an agreement with the union regarding disciplinary procedures.

These are but a few examples of the policy priorities of the Board and its General Counsel. The nationwide coordination of these cases allows the General Counsel to choose what he believes are the best vehicles for overturning existing precedent and expanding the role of the NLRB in the workplace. With these memoranda in mind, it is important for employers to consider whether their workplace policies require a revision, and whether the implementation of those policies would survive scrutiny.