Labor Law Under Obama or Romney–Employers Brace for Post-Election Changes

For today’s topic of likely labor law and NLRB actions after the election we turned to Patricia M. Trainor, J.D., SPHR, BLR’s Senior Managing Editor for HR. Here’s her take:

Until recently most nonunionized employers knew little about National Labor Relations Board (NLRB or the Board) activities.  This was simply because that federal agency had little impact on their day-to-day operations. 

However, from social media policies, to employee handbooks, discrimination investigations, and off-duty access to employer property, the NLRB is making its mark on the employment landscape.  The presidential election results this November may determine how long-lasting that mark is.

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If President Obama Is Re-Elected

Presidents traditionally appoint a majority of NLRB members from their own party.  Thus historically, as the makeup of the Board has changed, the NLRB has changed positions on various matters.

What has the Obama Board s meant for employers?  Lots of confused head scratching as standard employment policies have come under increased scrutiny. This is largely a result of the Board’s expansive interpretations of Section 7 of the National Labor Relations Act (NLRA). Among Section 7 rights is employees’ right to engage in protected concerted activities regarding the terms and conditions of employment.  

Just to recap some of the Obama Board’s actions:

• Found unlawful social media policies with provisions prohibiting employees from using online media to disparage the company, disclose confidential information, or refrain from posting photos of the workplace without company permission
• Held employers may not require employees to sign arbitration agreements that prohibit class actions in both arbitration and court
• Found broad employee handbook at-will disclaimers may deter employees from exercising their rights under the NLRA
• Ruled that an employer violated the NLRA when it askedemployees to refrain from discussing an ongoing internal investigation in order to preserve the integrity of the investigation
• Narrowed the circumstances under which an employer may limit off-duty employees’ access to the workplace

If Obama is re-elected, employers can expect more broad interpretations of Section 7.  And, the NLRB is also likely to:

• Continue efforts to streamline election laws, giving employers far less time before an election to respond to union organizing efforts
• Push for “card check,” as opposed to secret ballot elections, as a way to unionize more workplaces
• Allow graduate student teaching assistants to unionize
• Find that non-unionized employees have the right to a have a representative present during an investigatory interview by the employer, if the employee reasonably believes that the interview might result in disciplinary action.

If Mitt Romney Is Elected

It’s always a bit risky to predict what a newly elected president will do.  Campaign hyperbole subsides, reality sets in, and sometimes we see a different approach than expected. However, although I’m generally not a gambler, I’d be willing to bet big that if Mitt Romney takes office, the NLRB will lose its pro-union members and more pro-business appointments will be made.  

What does this mean in practical terms?  First, some of the more controversial NLRB rulings, such as those on handbook disclaimers, employee off-duty access, and employer policies on confidentiality of ongoing investigations, will be reversed.  NLRB guidance on social media policies will undoubtedly be rolled back, allowing employers more freedom to draft and enforce such policies. 

Finally, a Romney Board would be unlikely to rule that graduate students could unionize nor would the Board pursue streamlined elections.  In short, a Romney Board would be far less inclined to interfere with employers’ day-today business decisions.  

Romney is also promising to amend the NLRA to:

• Guarantee the right to vote by secret ballot in every union certification election
• Guarantee pre-union election campaigns of at least one month

And, Romney says he will support states in enacting right-to-work laws and work to prohibit the use of automatic paycheck deductions for “political purposes.”

Congressional Wild Card

Whether it’s Obama or Romney in November, employers should keep in mind that the congressional elections may also impact labor policy.  If Obama wins and has a Democratic congressional majority to back his agenda, we are likely to see 4 years of increased pro-union legislation. 

On the other hand, Obama may find himself stymied by a Republican congress.  The converse is true for Romney.  Romney’s goal to amend the NLRA won’t go far if he doesn’t have a Republican majority in Congress to push his legislative agenda through.

No matter who is elected, employers need to be up-to-date on labor issues. BLR can help.  HR.BLR.com subscribers can access plain-English explanations of the NLRA and laws relating to unions at http://hr.blr.com/analysis/Unions/National-Labor-Relations-Act-NLRA/; http://hr.blr.com/analysis/Unions/Unions/.

In addition, all readers can access these articles on federal and state labor developments:
Michigan Supreme Court: Right to collectively bargain on November ballot
Watch out—That policy may be an unfair labor practice!
NLRB’s stance on employees’ off-duty access to the workplace 
NLRB targets employee handbooks

Stay tuned for our next Eye on the Election feature, coming October 5.