When asked the type of law I practice, I always respond with “management-side labor and employment law.” In reality, while I have many successful engagements under my belt in the world of traditional labor law, I am much more of an employment attorney than a labor attorney. And, if you ask 100 management-side labor and employment lawyers whether they identify more with labor law or employment law, at least 95 will tell you employment law. It’s not our fault. It’s just that as union membership has dwindled, so have the opportunities to practice traditional labor law.
Currently, only 7 percent of private sector employees belong to a labor union. Doing the math, that leaves 93 percent of the private sector workforce as non-unionized. Yet, the National Labor Relations Board’s ability to impact the workplace is not limited by unions’ 7 percent reach.
Yesterday, the NLRB launched a webpage dedicated to protected concerted activity, which highlights 12 recent cases litigated by the NLRB involving protected concerted activity. According to the NLRB:
The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away (emphasis added).
Trust me, it’s not a coincidence that the phrase “even if they aren’t in a union” prominently appears on this webpage above the fold. It’s a calculated public relations strategy.
According to the NLRB, “Non-union concerted activity accounts for more than 5% of the agency’s recent caseload.” If the agency is being honest, I bet it would want to add a zero after that 5. The NLRB wants to be the go-to agency for employees fired for talking about work. It is in the process of reinventing itself so that it remains relevant, even as labor unions become increasingly irrelevant. Businesses must prepare themselves for increased knowledge by their employees on these issues, along with the increased enforcement efforts by the NLRB.