With union membership falling in 2015 to just 6.7% of the American private sector workforce, it is no secret that the National Labor Relations Board (NLRB) is doing whatever can be done to reverse that trend and tip the balance in favor of union organizing. Here are three recent examples about which all employers need to know.

Employee Handbooks Still Under A Microscope
Most non-union employers are aware that the NLRB (three of the five members of which are former union lawyers), has honed in on employee handbook provisions that may “chill” union organizing and representation rights. Of particular current interest to the NLRB are handbook provisions concerning arbitration, non-solicitation, confidentiality, employer restrictions on employees talking to the media, and non-disparagement. These clauses are frequently found by the NLRB to violate the Section 7 rights of employees which guarantees:
“the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
 
The NLRB has had some recent success in the federal Courts of Appeals in cases that challenge the validity of these handbook clauses. For example, on May 26, 2016, the Seventh Circuit Court of Appeals in Lewis v. Epic Systems Corp., found that an employee handbook provision requiring arbitration of employment disputes but prohibiting “class action” wage and hour claims violated the Section 7 rights of employees.

Smaller Bargaining Units Becoming More Common
“Micro” bargaining units, in which a union organizes a small number of employees involving only a few position titles, are becoming more prevalent since the NLRB found such bargaining units to be “appropriate” inSpecialty Healthcare and Rehabilitation Center of Mobile.

On June 2, 2016, the Fifth Circuit Court of Appeals approved a bargaining unit consisting of only cosmetic and fragrance counter employees of a single Macy’s department store in Massachusetts. The appeals court noted that:
 
[T]he Supreme Court has stated that “employees may seek to organize ‘a unit’ that is ‘appropriate’—not necessarily the single most appropriate unit.” Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 610 (1991). Applying this standard, this court has held that where there is evidence that an alternative unit “might also [be] an appropriate bargaining unit,” the unit approved by the NLRB will nevertheless be enforced unless it was “clearly not appropriate.”
 
According to the NLRB’s Specialty Healthcare standard, bargaining units need not be the “most” appropriate to be approved as long as the petitioned for unit is readily identifiable as a group—based on job classifications, departments, functions, work locations, skills, or similar factors—and the employees in the smaller unit share a community of interest according to the traditional criteria. Unions find smaller “micro” bargaining units to be much easier to organize than large plant-wide units.

Bargaining Units Comprised of Employees of Joint Employers
Usually, only the employees directly employed by an employer may be included in a bargaining unit. Recently, however, several state and federal government agencies have been expanding the “joint employer” concept to hold employers who use staffing agencies accountable for violations of the rights of temporary workers. On July 11, 2016, the NLRB determined in Miller & Anderson, Inc. that bargaining units may now include temporary employees of a staffing agency if the temporary employees share a “community of interest” and a joint employer determination has been made. Including employees of two different employers (a “user employer” and a “supplier employer” in the words of the NLRB) in the same bargaining unit creates significant complexities in bargaining. To help resolve these complexities, the NLRB generously offered the following advice:

In the unit of the jointly employed contingent employees, the user employer, like the supplier employer, would have an obligation to bargain only as to the terms and conditions it has the authority to control.
 
It remains to be seen whether bargaining units comprised of employees of two employers are as workable as the NLRB suggests.

What Should Employers Do?
  • Handbook provisions should be reviewed and updated to prevent any claim that the employer is violating the Section 7 rights of employees.
  • Employers should be aware that smaller, more easily organized bargaining units of employees could be the proverbial camel’s nose under the tent of a larger organizing effort.
  • It is necessary for employers to take seriously information concerning dissatisfied groups of employees and complaints of arbitrary or ineffective supervisors.
  • Employers using temporary staffing companies should avoid becoming a joint employer of the temporary employees, not just because of the combined bargaining unit problems.