As NLRB Branches Out, We Guide Clients Through the Evolving Landscape

Tuesday, October 6, 2015

Although sometimes referred to as “traditional labor law,” there is nothing traditional about labor-management relations in today’s workplace. With an activist National Labor Relations Board (NLRB), all employers—both union and non-union—face new challenges. For unionized companies, the challenge is to keep up with the changes and increased scrutiny regarding established precedent. For non-union employers—which are increasingly being targeted for enforcement of workplace requirements (everything from workplace email and social media to business structuring)—the challenge is often to confront issues they never even had to consider before.

With one of the largest groups of lawyers in the United States focusing solely on labor-management relations issues, Morgan Lewis offers a broad scope of services in this area of law. For more than 50 years, Morgan Lewis’s labor-management relations practice has been building a reputation across the United States and a significant client base with the highest-profile matters, representing some of the most respected and well-known US corporations in their business-critical labor issues. Our practice includes former NLRB members Chuck Cohen, whose term ended in 1996, and Harry Johnson, whose term ended in August 2015. From campaigns and collective bargaining to plant relocations, merger and acquisition transactions, NLRB litigation, and complex labor arbitration matters, Morgan Lewis lawyers represent employers in a full range of labor-management matters. We have represented employer interests in some of the biggest assaults on employer rights in recent history, including litigation involving the NLRB’s so-called “quickie” election procedures, an employee rights notice posting, the US Supreme Court’s recent ruling on collectively bargained retiree healthcare, and the enforceability of class action waivers. 

John Ring and Joe Ragaglia, co-chairs of our labor/management relations practice, took some time to discuss how labor-management issues—and their regulation—have evolved beyond the traditional landscape.

The NLRB seems to be getting more press and taking on a greater role in American business. Why do you think that is?

There was a time when the NLRB’s reach was relevant to a very limited segment of companies. For the most part, it was employers that already were unionized or experiencing a traditional union organizing attempt. That’s simply not the case anymore. The NLRB under the Obama administration has made a determined effort to make itself relevant in the non-union workplace—frequently overturning established law to do so.

Can you give us an example of an instance where the NLRB changed established law in a more union-friendly direction?

In one of the more significant cases in the last decade, the NLRB recently upended the law concerning joint employer status and completely changed the way companies need to think about structuring their business relationships. A company will now be deemed a joint employer with a contractor or other business entity where the company has the ability—even if only on paper—to control terms and conditions of employment for that third party’s employees. Under the old test, actual control had to be demonstrated. This change affects liability for employment actions, as well as which companies may be subject to a union organizing attempt and have an obligation to recognize and bargain with a union.

Are there other NLRB actions affecting non-union employers?

Non-union employers have been in the NLRB’s crosshairs on a number of issues, but nowhere quite like the changes to union organizing. The NLRB’s so-called “quickie election” rules shorten the process for union elections and remove employers’ ability to raise a number of key challenges prior to an election. The NLRB also has made it easy for unions to organize by allowing elections to go forward in smaller groups of employees. There used to be a strong presumption that a union seeking to organize employees had to petition for an election in a group that included the entire facility. Now, unions may organize workers in a single department or subset of a workplace with little warning or ability for an employer to object or campaign. This new landscape requires employers to take preventative measures and be ready for possible organizing, which seems to be on the uptick these days.

The NLRB also has targeted non-union (and union) employers in areas and under legal theories that many of us who have practiced in this area for decades never would have anticipated. For example, the NLRB now will find unlawful those employer policies restricting workers’ use of email to communicate with other employees about organizing or workplace issues. The same will go for employer discipline against employees for discussing company matters on social media, even if it reflects negatively to the public. Similarly, the NLRB now scrutinizes employer policies on issues ranging from social media to the confidentiality of workplace information. Unprepared employers that rely on traditional rules or conventional wisdom in these areas now find themselves facing challenges under new NLRB case law.

What type of matters does Morgan Lewis’s labor-management relations practice handle for companies? 

We represent employers in a full range of litigation and counseling matters under the National Labor Relations Act (NLRA), the Railway Labor Act (RLA), and other laws governing labor-management relations. This includes practice before the NLRB and labor arbitrators, as well as in federal court. We also represent companies in collective bargaining negotiations, union organizing campaigns, and strategic business changes—including merger and acquisition transactions, facility closures and relocations, and general restructuring.

In this new environment, companies need experienced labor-management lawyers who can not only navigate the changing landscape, but also anticipate and advise on these new risks and credibly represent employers before the NLRB.