The Employee Free Choice Act (EFCA) died in the Senate in 2009. The National Labor Relations Board (NLRB) is moving ahead, making changes to the National Labor Relations Act (NLRA) that will have a similar effect on employers as EFCA would have.




The NLRB has issued decisions expanding the scope of employee protected concerted activity, increasing employers’ obligations to unions already in place and limiting employers’ rights and discretion in collective bargaining.



Several recent cases are broadening the scope of employee conduct protected by Section 7 of the NLRA and impeding the employers’ ability to address inappropriate workplace conduct. Historically, employees would lose their rights under Section 7 if they engage in egregious or abusive behavior. In the Plaza Auto Center, Inc., 355 NLRB No. 85 (2010) case, an employee used the “F-word” repeatedly; called the owner stupid; pushed a chair aside and said if he were fired, the owner would regret it. NLRB determined the employee’s profanity and threat did not exceed the bounds of protected concerted activity.



Recent regulatory and enforcement proposals by the NLRB may be the most significant changes. Notice of Proposed Rulemaking would require private employers to post employee rights under the NLRA including the right to organize, and engage in concerted activity including to strike, as well as listing examples of unfair employer conduct and prohibited union conduct. Failure to post would be considered an unfair labor practice that would result in sanctions.


Lafe Solomon, the Acting General Counsel of the NLRB, directs enforcement matters of all the regional offices. Since his appointment in June of this year, he has issued several directives. The most significant may be requiring consideration of injunctive relief for any employee termination which occurs during an organizing campaign.


The regional offices have been directed to seek special remedies in organizing cases. The remedies include union access to bulletin boards, providing names and addresses of employees to unions and may include allowing unions the right to speak to employee groups on company property. First bargaining cases have even more new remedy directives, including extending the certification year by six months and reimbursing union bargaining expenses.


Informal settlement and compliance agreements will now use default language which will waive the right of the defaulting party to challenge the complaint. This language may also create liability in the event of subsequent conduct.


While the NLRB is strengthening union power, organized labor has focused on organizing. They are targeting health care, food manufacturing, transportation, logistics as well as the public sector. Effective employee relations programs are the best defense. When people work in a healthy and fair work environment, the need for a union doesn’t exist.

Employers should not…

• make any significant changes to benefits or working conditions until after election results are certified, unless a periodic event is occurring such as annual wage increas- es. If that is the case, the employer would be at fault for not proceeding with the change.
• monitor employees more than usual during a campaign
• offer extra pay for off-duty employees to return to work to vote

Indiana Legislative Update

Secret Ballot Rights

Effective July 1, 2011, an Indiana statute guarantees employees the right to vote for representation by secret ballot. This is similar to a recent Arizona constitutional amendment which is being challenged by the NLRB. The Indiana statute does state that it does not apply to the extent that it conflicts with labor relations regulations.

Unemployment Eligibility

An individual is no longer consider unemployed in any week employed on an on-call or as needed basis and receives earnings or has work available from the employer.


This same Act, House Enrolled Act No. 1420, effective July 1, 2011 states an individual is not unemployed for any week of vacation from an employer, whether or not the individual receives payment.


The employer does have reporting obligations in the case of separations even when there is reasonable assurance of continued employment.


Senate Enrolled Act No. 86, also effective July 1, 2011 states an individual is deemed to have refused an offer of suitable work if the offer is withdrawn after failing a pre- employment drug test, or refusing to submit to a required pre-employment drug test, without good cause.


An individual will have unemployment benefits reduced or eliminated should the individual accept a severance package in connection with a layoff or plant closing. This law is effective October 1, 2011.

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