NON-UNION BUSINESS OWNERS STILL FACE LABOR LAW RISK

Written by Stephen Trimboli

We are told that labor unions are close to a spent force in the private sector. Only 6.1% of private-sector workers were unionized in 2021, down from 6.2% in 2020. This being so, there is nothing for a small- or medium-sized business owner to worry about when it comes to labor law or the National Labor Relations Board, the federal agency that enforces private sector labor law, is there?

Guess again.

In the last year alone, the Newark Regional Office of the NLRB received over 450 unfair labor practice charges against New Jersey businesses. This figure does not include charges against South Jersey businesses filed with the NLRB’s Philadelphia Region. And a seeming majority of these claims involve businesses with fewer than 100 employees – in many cases 12 or fewer. If unions are a declining presence, what can explain this level of enforcement activity?

The answer lies in part in an important but overlooked aspect of labor law: it protects two related but distinct sets of employee rights. The right of collective bargaining – mandatory bargaining over terms and conditions of employment – requires the presence of a duly-recognized union. But the second set of rights, the right to engage in “concerted activity,” applies to all employees, even in the absence of a union.

“Concerted activity” is joint action by employees to address work-related issues. Talking openly with one another about pay and benefits, circulating petitions about working conditions, jointly speaking to local media about the workplace, and jointly approaching the office manager to complain about the thermostat setting all count as “concerted activity.” Even a single employee can engage in “concerted activity” if the employee claims to be speaking on behalf of co-workers.

A business owner need not bargain with non-union employees engaging in concerted activity. (In fact, it’s unlawful to bargain with them). An employer is not required to listen to the employees, grant their wishes, or give their complaints any weight. But a business owner cannot “interfere with, restrain or coerce employees” who engage in concerted activity. A business owner cannot adopt rules or policies that have a “chilling effect” on the right of employees to engage in concerted activity. And a business owner cannot retaliate, through discipline or otherwise, against employees who engage in concerted activity. Any violation of these prohibitions is an unfair practice that could trigger an NLRB complaint.

During the Obama Administration, the NLRB took a hardline position with respect to rules or policies that allegedly had “chilling effects” on concerted activity. Seemingly reasonable and commonplace rules, policies, and workplace decisions were deemed to be “chilling.” Everything from rules prohibiting incivility among employees to policies requiring confidentiality in sexual harassment investigations were declared unlawful. Although the Trump NLRB eased back on these issues, the Biden NLRB appears poised to revive the hardline Obama-era standards. Small- and medium-sized business owners can face NLRB enforcement actions based on commonplace rules, policies, and workplace decisions. And the absence of a union makes no difference.

The attorneys at Trimboli and Prusinowski have defended employers in multiple unfair labor practice matters. Engaging our attorneys to audit your workplace rules and policies can help forestall an NLRB complaint. Call our office to set up an appointment.

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