More Employees Are Taking Legal Action Against Unfair Labor Practices
By Alexandra Levit
More employees who don’t like the way they are treated in their workplaces are organizing and taking matters into their own hands
Between Oct. 1, 2022, and March 31, unfair labor practice charges filed across its 48 field offices increased 16% compared with the same previous period (from 8,275 to 9,592 cases), according to the National Labor Relations Board (NLRB).
After a substantial rise last fiscal year, union representation petitions filed at the NLRB for the first six months of fiscal year 2023 also continue to increase—up to 1,200 from 1,174. In total, 10,792 cases have been filed with the NLRB’s 48 field offices, up 14% over the same period in fiscal year 2022.
As NLRB General Counsel Jennifer Abruzzo told The Workplace Report, these numbers indicate more workers around the country are learning of and exercising their rights to act together and improve their working conditions, organize a union and bargain collectively.
“We have seen a surge of underserved, underrepresented and vulnerable communities of workers elevate their voices and seek a seat at the bargaining table as they are now aware that the NLRB will vigorously act to protect their rights if they experience any retaliation for doing so,” she said. “These dynamics have no doubt contributed to the significant increases in petitions for election and unfair labor practice charges filed with the NLRB over the last two years.”
According to Stephanie Caffera, a labor and employment partner at law firm Nixon Peabody, the increases in labor practice charges and union-representation petitions are related. She suggests that media coverage of high-profile actions, such as the unfair labor practice charges filed against electric-vehicle maker Tesla, has brought more attention to the rights of employees under the National Labor Relations Act (NLRA), the federal law that governs collective bargaining.
“Meanwhile, reports of successful organizing have empowered other employees to take action, including contacting unions,” Caffera said. There’s more information as unions and other advocacy groups educate workers about their rights, NLRB processes and tactics to use.
Additionally, a strong labor market is behind the rise in cases, said Felix Koenig, assistant professor of economics at Carnegie Mellon University’s Heinz College. A robust labor market typically encourages bolder worker demands and reduces the threat of retribution when organizing labor or reporting labor violations.
It also is helpful to understand how the NLRB views these cases.
Now that so many employees are filing charges, it’s wise to understand the NLRB’s mentality once they do. Caffera, who has represented clients before the NLRB, believes that current NLRB leaders have expanded the scope of the NLRA, boosting employee rights within the act and the board’s own authority to reinterpret the law.
“Nonunion employers need to pay close attention to the NLRA in ways they have not had to do before, because NLRA rights affect many aspects of employment such as social media and confidentiality policies, the handling of employee complaints, and employee discipline and discharge,” she said.
Given the scrutiny from NLRB, here are some learnings from recent cases that employers should know.
- Become familiar with “protected concerted activity.” This cornerstone of labor policy means that employees have the right to discuss their wages and salaries and to speak up about workplace safety and other working conditions. “Some of those complaints can get heated, and savvy employees are filing unfair labor practice charges based on their employer’s response,” Caffera said.
- Understand the NLRB’s view on unlawful threats. Employers should be aware that common statements about the possible outcomes of collective bargaining, the risks of unionization and other similar comments may now be considered unlawful threats.
- Rethink your approach to employee relations. Employees who feel they are heard inside their organization and have the support of their managers will first use those pathways to resolve their concerns. As Caffera put it, the main reason employees seek to form a union is because of how they are treated by their direct supervisors. Those who don’t have that confidence in their managers will turn outward—to a union, an enforcement agency or an attorney.
- Institutionalize “worker voice.” Koenig suggests considering this model popularized in Northern European organizations, in which worker representatives are routinely invited to sit on corporate boards and advisory councils. “There is evidence that this has improved information sharing between workers and management,” he said.