NLRA’s Application to Nonunion Workforces Explained


By Allen Smith March 24, 2015

The scope of the National Labor Relations Act’s (NLRA’s) protection is wider than some employers realize.

They wonder why the National Labor Relations Board “keeps messing with nonunion workforces,” said Board Member Philip Miscimarra at the Society for Human Resource Management’s Employment Law & Legislative Conference March 24, 2015, in Washington, D.C.

There are three main areas where the board has applied the law to nonunionized employers, he said:

  • Workplace policies and handbook rules.
  • Work e-mail, which the board has concluded employees may use for organizing and other protected, concerted activity.
  • Class-action waivers, which the board has found to be invalid, though appeals courts have disagreed with this stance.

Some rules that relate to courtesy or safety could be construed to impinge on concerted, protected activity, he noted, and the board has struggled with such cases.

Protests and walkouts may appear to be disrespectful, but so too is other protected activity, such as strikes, especially “if on the worst day of the year with no notice,” Miscimarra said.

“This is a challenging area now,” he remarked, saying he hoped the board will “find a better way to be more helpful.” He opposed the board’s holding on work e-mail and class-action waivers and has opposed many of the rulings on employee handbooks.

Lauren McFerran, the newest board member, recommended that employers familiarize themselves with the general counsel’s (GC’s) recent report on employee handbooks, saying that she is “sympathetic to the need for clear rules.”

But Miscimarra observed that there is a “wall of separation between the board members and GC that is airtight,” including about the report. Miscimarra can shoot the breeze with the general counsel, he explained, but not talk shop with him.

Election Rule

Of course, the new election rule applies to nonunionized workforces, but, by definition, those workforces are the targets of unionization.

The election rule’s requirement that employers provide employees’ personal e-mails and cellphone numbers to unions has proved controversial, but employers don’t have to provide either if they don’t have them, Miscimarra noted in response to a conference attendee’s question.

He said that all the board members were in favor of union elections being resolved in no more than 60 days, and he believed they could be completed in 30 to 35 days.

“A unanimous rule would have generated more support,” he observed. The rule that takes effect April 14 does not actually specify how long or short the election period is to be, Miscimarra pointed out, though some estimate it could be as short as 11 days.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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