Five Keys to Dealing With the NLRB and Staying Union Free

With the prospects for the enactment of major labor law legislation looking ever dimmer almost two years into the Obama Administration, one might be inclined to declare the grassroots mobilization efforts and enormous sums of money spent by organized labor in the 2008 election cycle a waste.

This would be a mistake. The National Labor Relations Board, an agency that regularly consists of three members of the president’s party and two members of the other party, is on track to consist of only three Democrats by this fall. The current general counsel for the NLRB, a Republican, has announced his retirement and will be replaced in short order by a Democrat appointee.

Beyond the anticipated “regular” reversals of employer-friendly legal precedent, many commentators expect President Obama’s choice for chairman of the board, former union attorney Wilma Liebman, to exercise the agency’s rule making authority for the first time in decades to set union-friendly precedents on a more permanent basis. Indeed, many anticipate that the board will make seemingly minor internal operational changes that will greatly favor unions (such as shortening the length of time in which representation elections are held).

Of course, the changes at the NLRB are just one part of the labor law dilemma facing employers today. Ultimately, the list of challenges for an employer wishing to remain union-free is as long as the number of government agencies, social issues, and workplace concerns that a union can manipulate into effective organizing tools.

While it would be impossible, and unwise, to attempt to address all of these challenges generically, the following strategies for remaining union-free merit immediate consideration from every employer. Although there are devils in the details of each of these strategies which call for the assistance of experienced labor relations professionals, the basic concepts beyond each strategy are far from complicated. Nonetheless, it takes a disciplined management team to implement them on a long-term basis.

Do What You Should

A frequently heard refrain is that wage and hour, workplace safety, environmental, anti-discrimination laws, and the like have made unions obsolete. The truth of that statement is largely dependent on whether a particular employer follows these laws, and whether employees believe that the employer is committed to the policy goals underlying those laws.

Union organizers often fabricate relevancy by getting enough information from a single disgruntled employee to identify areas of non-compliance. If a union organizer can show other employees that the employer has not followed safety regulations or has not paid overtime correctly, the union organizer’s sales pitch becomes increasingly effective as the union appears as a necessary liaison between the employees and government officials. Moreover, an employer’s failure to follow the law usually provides the union organizer with the opportunity to undercut the employer’s credibility by pointing to a policy that says one thing (example:. “Company X- Where Our Employees Are #1”) and what appears to be a conflicting reality.

Given the direct risks posed by noncompliance with workplace laws and regulations, it is doubtful that many employers deliberately ignore such obligations. Noncompliance typically occurs because management teams are unaware or confused about their legal responsibilities. Given the bewildering array of laws and regulations, this is understandable. However, since ignorance is never a good defense, employers should conduct regular audits of their workplace policies and practices to ensure compliance with all applicable workplace laws.

Do What You Say You Would Do

While employees care about whether their employer is following the law, they care more about whether their employer abides by its self-imposed obligations. Unfulfilled commitments to employees destroy an employer’s credibility and virtually eliminate an employer’s ability to challenge the credibility of a union.

If an employer says that it is going to do something, it needs to take that action unless there is a good reason for the change in direction. Thus, if an employer has an “open door” policy, the door to every manager’s office needs to be open to every employee who has concerns. If an employer says that it is going to improve working conditions (e.g., refurbishing a bathroom), those improvements need to happen in a timely fashion.

Similarly, if an employer says that it is doing (or will be doing) something that employees cannot verify by simple observation, the employer needs to proactively validate that it is actually doing what it said would be done. For example, if an employer tells its employees that it pays wages and benefits “based on industry standards,” the employer needs to communicate studies that back up the claim.

Manage Employees’ Expectations

Most employees’ expectations about what an employer should or will do are not based on direct communications from management. Instead these expectations are formed by past experience and current observation of the management team’s reactions to present and near-term operational situations. When employees observe unanticipated changes and are not given the tools to understand the changes, they become antsy and open to suggestion to those claiming an ability to stop or to manage change on the employees’ behalf.

The first step in avoiding such a development is managing the workforce in as consistent fashion as the needs of the business allow. When similar situations need to be handled differently, the affected employees need to be told and understand the reason for the different treatment. Also, an employer should implement reliable and well-executed channels for keeping employees abreast of developments affecting the employer and its industry so that the employees can begin to anticipate change from a positive and/or informed vantage point. Although these channels will differ in form from employer to employer based largely on the work environment (for example, pre-shift meetings in an industrial setting or e-mail updates in an office setting), they should have common characteristics of regularity and thoughtfulness.

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While providing employees with information is an important tool in managing employees’ expectations, it should be self-evident that listening to employees is even more significant. While the NLRB has developed case law that complicates the use of employee committees (and that arguably calls the legality of certain organizations into question), it is absolutely crucial that employers establish reliable and regular sources for obtaining employee feedback.

Manage Your Front line Supervisors Properly

Labor relations experts always extol the training of front line supervisors to recognize and appropriately respond to the threat of unionization as an immediate priority for any employer wishing to remain union free. While true in part, this advice often ignores (and sometimes exacerbates) the problem of front line supervisors being spread too thin.

Many front line supervisors have neither the time nor the energy to incorporate fully the lessons of union avoidance training. In such situations, while training may be necessary and effective in the short-term, it lacks any permanency as the front line supervisors move onto the next emergency once the threat of unionization seems more remote.

Employers need to ensure that supervisors have the time and resources to accomplish the tasks for which they have responsibility, key amongst which should be the fair and efficient management of the employees who report to them.

Manage the Contingencies

Under current procedures, if a union files a petition with the NLRB seeking status as the representative of a group of employees, the employer typically has only six or seven weeks from the filing of the petition until the secret ballot election. While this is a relatively short time frame for such an important event, many predict that the board will further shorten it. Since time is and will be at a premium in representation elections for the foreseeable future, employers need to have a game plan ready for dealing with union organizing attempts.

At a minimum, this means:

  • Having well-prepared arguments for defining the scope of any potential bargaining unit,
  • An understanding of the specific labor organizations that might seek to insert themselves into the employer’s workplace,
  • A clear idea of who will have what roles during the response to the union’s organizing campaign, and;
  • A firm commitment from the highest levels of management that winning the election is the organization’s top priority.

For certain employers, proactively managing the contingency of a union representation election would include steps such as obtaining or creating video clips and other media that address questions frequently asked by employees about the representation process and the employer’s position and reserving web addresses for the delivery of such materials.

IMPORTANT Note: This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.

Joseph McCoin is a member attorney with Miller & Martin PLLC and based in the firm's Chattanooga office. His practice focuses on providing strategic advice in matters involving employment law, traditional labor law, and health and safety compliance. He also has served as lead negotiator on behalf of management teams engaged in collective bargaining with various internationally affiliated and independent local unions. Contact him at jmccoin@millermartin.com

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