For the first time in over a decade, the National Labor Relations Board enters the New Year with a fully constituted (properly nominated and confirmed) complement of Board Members and General Counsel. Having removed the "acting" or "recess appointee" caveat from their titles, the NLRB and its independent prosecutor are now free of many of the legal and procedural challenges that questioned the legitimacy of their recent actions.
Expect a more-productive, fully constituted NLRB to pursue its employee and union favored agenda in the following ways.
- Issuing more rulings on claimed infringements on employee rights in arbitration agreements and work rules, such as at-will statements, off-duty access, social media, confidentiality and other policies.
- Requiring employee and union access to employer-owned e-mail and intranet systems to distribute union campaign materials.
- Promulgating its "Persuader Regulations" expanding the circumstances where third party advice provided to companies seeking to remain union-free is reported to the federal government and publicly available.
- Reviving its "Quickie Election" Rules to give unions a greater advantage in organizing campaigns and elections.
- Pushing to require all employers covered by the National Labor Relations Act to post a notice informing employees of their rights under the Act.
Perhaps most troubling to employers, the NLRB's 2014 agenda impacts all employers and not just those with unionized workforces. Even as union membership rates decline, the federal agency with the self-described power "to safeguard employees' rights to organize and to determine whether to have unions" continues to expand its regulatory reach over employers.
This article is presented for informational purposes only and is not intended to constitute legal advice.
