There are two main ways to modify existing labor law: through legislation or through the National Labor Relations Board.
“The Employee Free Choice Act appears to be dead in the water,” says Mike Stief, a partner with Jackson Lewis LLP. “It is unable to be enacted in any form in the foreseeable future.”
Therefore, any change would have to come through the current NLRB.
Smart Business spoke with Stief about the new labor board and how it will impact union-free employers.
How can the makeup of the board affect labor law?
The current NLRB is made up of three Democratic appointees. There are supposed to be two appointees by the Republican Party, but there is one open seat. So you have a majority of the labor board who are very beholden to organized labor. The chairperson of the board, Wilma Liebman, was a minority member of the board during President Bush’s presidency. The most controversial member of the new labor board, Craig Becker, is a recess appointment. He is one of the more controversial figures on the labor board in recent memory.
Becker believes employers should be stripped of any legal cognizable interest in their employees’ election of representatives. He takes the position that we shouldn’t even have union elections anymore. He wants to restrict or eliminate an employer’s right to communicate with its employees during an election campaign. His views are very extreme; some even are in direct violation of the current National Labor Relations Act, which permits employers to communicate with their employees on this topic. Those rights have been in place since 1947.
Are any of those extreme changes realistically going to happen?
President Obama appointed the majority of the labor board. He owes a lot to organized labor, which helped get him elected. I’m not suggesting every one of Becker’s views will be adopted, but the board majority may take a close look at a lot of those issues.
How does the new labor board impact employers?
The board can affect change and impact non-union employers in two distinct ways: one is adjudication, which is developing a new body of case law.
The second way is rulemaking: the labor board can adopt rules that also could change the labor landscape. Just recently, the labor board proposed creation of a rule which would require every employer in this country to post in the workplace a notice of employees’ right to join a union. Right now, that only applies to certain federal contractors and subcontractors through an Executive Order signed by President Obama. If adopted, this proposed rule would require it for every employer. You may have to post it electronically, as well, if that is a way you customarily communicate with your employees.
This would be a constant reminder to the work force of the right to unionize, and therefore make it more likely that you will be the subject of organizing in the future.
Other potential rules that we might see deal with expedited elections, the more frequent use of mail ballots and/or e-voting.
Historically, people have voted in elections by elections being conducted at the worksite during work time. The NLRB does a very good job of running elections. Having an election on-site is beneficial to employers because it ensures the maximum number of employees vote. Statistics show in elections where the ballot is mailed to your home, voter turnout is less than elections that occur manually.
How may the board affect labor law through adjudication?
There are cases that are going to be decided by this labor board that will be very union-friendly. Among them: making it easier for temporary employees from a temp agency to vote in union elections along with the company’s regular employees.
This labor board will most likely overturn a decision issued by the previous labor board, which found it lawful for a company to prohibit the use of its computer systems for the purpose of organizing.
This labor board may also go back to a decision from the President Clinton-era board that provided non-union employees the right to have a co-worker witness present during an investigatory interview that could lead to discipline. Usually, those types of investigations involve highly sensitive matters. It might be a harassment, theft, or substance abuse issue, and an employer usually tries to keep those investigations as confidential as possible. That confidentiality could be compromised if there is a co-worker witness present.
What are some things union-free employers can do to minimize the impact of these potential changes?
They need to really examine their whole philosophy of remaining union-free. They need to make it an ongoing process. The best way to remain union-free is to eliminate or reduce the issues that cause people to look elsewhere for help.
The keys are a well-trained management staff, selecting supervisors with good people skills, not just good technical knowledge, training those supervisors, and regularly conducting vulnerability assessments to understand which issues exist in the workplace in an effort to correct them.
What should employers be doing now?
On February 17, 2011, from 8:30 to 10:30 a.m., Jackson Lewis LLP is conducting a complementary seminar titled: Surveying the New Labor Law Landscape: 11 Changes in 2011: Tips for Employers. Business owners that are interested should contact our offices to register.
Mike Stief is a partner with Jackson Lewis LLP. Reach him at (412) 232-0138 or [email protected].
