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Labor Unions May be Down, but the Labor Board Roars On

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in HR Soapbox

Today’s news that union membership has fallen to its lowest level since the Great Depression may have employers feeling pretty good. The shrinking risk of a successful union organizing event at your workplace has shrunk even further—only 11.3% of all workers are members of unions today, down from 11.8% in 2011.

But those numbers obscure another reality going on – employees are actually gaining powerful new rights to act collectively at both union and non-union workplace. That’s because of a series of controversial, pro-employee rulings by the National Labor Relations Board (the NLRB) over the past few years. 

Unions: A house divided. Union membership has been on a steady decline for five decades. In their peak during the 1950s, nearly one third of U.S. workers was in a union.

Today, in the private sector, only 6.6% of employees are unionized, according to the U.S. Bureau of Labor Statistics. And the number of unionized public sector workers also fell hard as cash-poor state and local governments reduced their workforces and—in some high-profile cases—reduced the collective bargaining rights of public employees.

Also, union members are getting older. The highest group of union members in the United States are those age 55 to 64 (14.9%) and the lowest among people age 16 to 24 (4.2%).

NLRB's ‘backdoor’ union rights. While your risks of becoming a union shop are down, the NLRB has given employees new rights to act collectively in recent years and launched an assault on seemingly neutral company policies.

The NLRB has sought to restrict employer’s policies on confidentiality rules, solicitation policies, rules against harassment, at-will disclaimers and an employer’s right to limit access to its property by off-duty workers.

Most recent example: The NLRB ruled that when employees complain on Facebook about their co-workers, those e-grumblings could be deemed “concerted activity” that’s protected under federal law—even in nonunion workplaces.

The case: An employee of a New York nonprofit group posted this on her personal Facebook page, “Lydia Cruz, a co-worker, feels that we don’t help our clients enough … I about had it! My fellow co-workers, how do u feel?” Four off-duty employees responded to the post, objecting to Cruz’s alleged comment about their poor work.

The nonprofit fired the worker who posted the original message, plus the four co-workers, saying all five violated the company’s zero-tolerance policy on “bullying and harassment.” The nonprofit was not a unionized workplace.

The NLRB sided with the workers, saying the firing violated the National Labor Relations Act (NLRA). The NLRB said the employees’ Facebook comments did fall within the definition of “concerted activity” for their mutual aid and protection. (Hispanics United of Buffalo Inc., 359 NLRB No. 37)

Bottom line: Employers should be increasingly cautious about disciplining or firing workers based on their communications—both online and off—relating to the workplace.

Rulings like this demonstrate the NLRB’s continued expansion of the definition of protected concerted activity.

As attorney Jon Hyman says, “Under the guise of ‘protected concerted activity,’ the NLRB is making it nearly impossible for employers to maintain any work rules that regulate what employees cannot say or do … for the time being, we are stuck with the NLRB’s intrusiveness into the world of work rules, and the grave uncertainty that comes along for the ride.”

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