Labor Takes a Big Hit

The NLRB has handed down boatloads of pro-union decisions since President Obama appointed three members to the NLRB while Congress was in recess.  The decisions are now in serious question.  Reset button, anyone?

The D.C. Court of Appeals just ruled that the President's recess appointments violated the Constitution.  That nails three members of the five-member board, which deprives it of a quorum.  Expect the NLRB to appeal to the Supreme Court.

Unless the Supreme Court reverses course, all those pro-union NLRB  decisions could get tossed into the waste basket.  The NLRB had stepped into the mix on some sensitive issues like:

  • Arbitration class action waivers
  • Social media
  • Witness statements
  • Bargaining unit gerrymandering

Stay tuned.

NLRB Poster Delayed Again

Strike that, reverse it.  After a key court loss, the NLRB has indefinitely postponed the effective date for its union rights poster rule.  The NLRB says it will pick the rule back up once the legal challenge has been resolved.  No need to put up the poster now.

 The NLRB's press release is here.

NLRB: Thumb Tacks Ready?

Looks like union and non-union companies must post a union rights notice by April 30.  A federal district court recently upheld the NLRB's new poster rule.  Here's the NLRB detail on the poster which includes a downloadable version of the poster.

We've written about this one before.  Check out more details here.

Want to push back?  We've also written on union avoidance countermeasures here.

Arbitration Class Waivers: Another Victim of the NLRB

Remember those pesky overtime claims where one bad policy can trigger a class action-like lawsuit?  We've suggested heading off the class warfare with mandatory arbitration policies that prohibit class-wide arbitration.  Well, the NLRB just stuck its nose into that too.  And you can imagine how that one went...

Class waivers, says the NLRB in D.R. Horton, violate employees' NLRA-guaranteed right to engage in "concerted activity."  Not that long ago, the NLRB used this same right to move aggressively into regulating social media.  If you force employees to sign an arbitration policy that has a class waiver, the NLRB will haul you in for an unfair labor practice.

The NLRB's ruling applies to you so long as you're covered by the NLRA—even if you're union free.

But there's good news.  Managers, supervisors and independent contractors have no right to engage in "concerted activity" under the NLRA.  The NLRB's ruling does not cover them.  Satisfy the NLRB that your worker falls into one of those groups and you might require a class action waiver.

What about class waivers that are selectively imposed?  Instead of including the waiver in a blanket arbitration policy for all employees, you might have all (or many of) your exempt employees sign an arbitration agreement with a class waiver.  That might keep classes of your employees from ganging together to claim they were misclassified as salaried exempt.  Better be sure, though, that the workers truly meet the NLRA's definition of managers, supervisors or independent contractors.  Or you the NLRB could put you in a world of hurt.

I doubt we've heard the last of D.R. Horton.  The NLRB's ruling will probably be appealed to the courts.  Stay tuned.

NLRB Approves Union Sneak-Attack Election Rule

Over the past few weeks, most folks were eating holiday dinners and celebrating the new year.  Not the NLRB.  The Labor Board rolled up its sleeves and cranked out more pro-union measures.  And President Obama appointed three new members to the five-member Board.

Just before Christmas, the NLRB revamped the union election process.  The process is now geared to catch you sleeping.

Union elections have typically happened about 42 days after the union fires the first shot by filing a union election petition.  But now, the NLRB's new rules will likely slash that to a little over 20 days.  Possibly even less.  That's your window of opportunity to educate your employees on how having the union would give them a raw deal.  The shorter window gives unions an edge—a smart union secretly courts your employees for months before filing a petition.  The rules become effective on April 30, 2012.

We've written before about how to deal with the new union sneak-attack election rules.  It's all about doing your legwork in advance.

Keep an eye on legal challenges to block the NLRB's new union election rules.  One lawsuit has already been filed, and the House passed the Workforce Democracy and Fairness Act.

Like the new union election procedures weren't enough, President Obama appointed three new members to the NLRB.  The appointments must normally pass the Senate, yet the President moved forward while the Senate was out of town.  Here's what The Washington Post had to say about it.

Expect big things from the Labor Board.

Quickie Union Elections: Back on the NLRB's Agenda

Your workforce is union-free?  Great, but watch your back.  The NLRB has proposed rule changes that could saddle your company with a union in 10 days flat.  Sounds like a union sneak-attack.

Unions thrive on the element of surprise.  Many successful unionization drives start with the union secretly courting your employees for months.  The union quietly hunts for unresolved employee concerns and exploits them.  Union bosses promise to fix your employees' concerns at the collective bargaining table, hoping to foster an "us vs. them" mentality against management.  Riding that momentum, the union files a petition with the NLRB to hold a union election.  That's often the first time management gets wind of the union trouble.

Your window of opportunity is now short.  Over the few weeks leading up to the union election, you must combat the groundwork that the union has been covertly laying for months.  Every single day counts.

The NLRB's rule changes would tighten several already-stringent deadlines.  The net effect is that union elections likely would be held 10 to 21 days after the union files an election petition.  That could cost you several weeks' of time to educate your employees on how a union would hurt them.

The proposed changes also strip away critical pre-election appeal rights.  One example tells the story.  If a union gerrymanders the group of employees who will vote in the union election, you can currently challenge the gerrymandering before the election.  But the rule changes would delay your challenge until after the election, so long as the gerrymandering impacted less than 20% of the employees eligible to vote.  In close elections, just 10% of the vote is often plenty to swing the result.

The sole Republican member of the NLRB dissented from the proposed changes because they would "effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining."  He even took a shot at the NLRB's pro-union motives in proposing the changes:

In truth, the “problem” which my colleagues seek to address through these rule revisions is not that the representation election process generally takes too long. It is that unions are not winning more elections.

Facing the threat of a union sneak attack even under the current union election rules, companies can push back.  Many companies take measures to stay union-free long before union organizers come knocking.  For example, you can:

  • Identify employees who qualify as "supervisors" in the NLRB's eyes, so they can be trained how to spot and react to union activity.
  • Personally communicate with your employees on their job satisfaction and address any concerns before a union does.
  • Task a rapid deployment team who is armed with an action plan to execute if you detect union activity.
  • Check your employee handbook for provisions that could trigger an unfair labor practice charge, such as overly broad social media policies.

Union avoidance is all about advance preparation.  Without some basic fundamentals, it may be too late when the union election petition crosses your desk.  And the NLRB's proposed changes hope to seal the deal.

Union Rights Posters: A Union's Newest Tool to Organize

Well, it happened.  We predicted the NLRB would approve the proposed rule that requires all employers covered by the NLRA to post a union rights notice.  The rule became law yesterday.  It impacts basically all private employers—unionized or not.

Here's the NLRB's Q&A sheet on the final rule.  The poster will be "similar" to the one already required of federal contractors.  You can find that poster here.  You must comply by November 14.

You now have the privilege of telling your employees about their rights to unionize and engage in concerted activity.  The rule requires you to post the notice in "conspicuous places where they are readily seen by employees."  That's your bulletin board.  You may also have to distribute the poster on via e-mail or on your intranet if you customarily use those channels to push out information to your employees.

The poster also tells employees how to complain to the NLRB if they feel their NLRA rights have been violated.  Get ready for a new type of complainers.  But remember that they are also protected from retaliation for filing an unfair labor practice charge.

Union avoidance measures now take on a higher priority.  Expect unions to leverage greater employee awareness into pro-union agitating and organizing drives.  After all, the NLRB is also considering a proposed rule to shorten union election timelines—giving unions a greater element of surprise.

Immunize against a union's biggest advantage with advance preparedness.